ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ McMULLEN QC
BAILII:  UKEAT 0453_09_2104
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE JACKSON
| MRS AVRIL FULLER
|- and -
|THE LONDON BOROUGH OF BRENT
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
LOUISE PRICE (instructed by Legal & Democratic Services, Brent Council) for the Respondent
Hearing date: 18th January 2011
Crown Copyright ©
Lord Justice Mummery :
"(4) ...the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case."
"18. …contains many passages which point towards a mindset by the Employment Tribunal that it was criticising [the Council]. It is in order for an Employment Tribunal to decide what a reasonable employer would have done. The criticism in this case is of what the employer did without measuring it against that standard. Just because there are criticisms of what the employer did does not mean that the action fell below the standard, or outside the range of responses, of a reasonable employer in dealing with the three stages in British Home Stores..".
Mrs Fuller's submissions
" ...we felt that this behaviour itself did not merit dismissal.[my italics] The claimant had been at the school for eight years, and longer in the employment of the Council; she had no disciplinary record of any kind; there had been one previous intervention by her in discipline which had not been discussed with her in any way such that she would understand what it was that she was not to do. There was no element of blatant or repeated defiance of the Head Teacher's authority, outside the brief episode on 19 October; if the claimant had defied authority it was based on her own lack of understanding of the purpose of the behavioural policy which [is] in turn could have been rectified by training or reasoned discussion with the claimant."
" Looked at carefully we felt that no reasonable employer would have dismissed her for a one-off incident, and that the prior background in relation to the alleged verbal warning of 22 May was built up into far more than it was. We felt that any reasonable employer would have imposed a lesser penalty, which might have involved an apology to Ms Kazembe, and may have [been] involved some kind of warning…"
Lord Justice Moore-Bick :
"Our concern was that it is clear from the letter dismissing the claimant that the seriousness of the claimant's behaviour on 19th October was rolled up with what had occurred on 22 May, and given our finding that on 22 May the claimant was not spoken to even informally, let alone given a verbal warning, and the fact that she was as a matter of practice unaware of the policy even if a written copy had been left on her desk. We felt that this would not be sufficient to show that she should have been aware that she should not interfere and this means that her behaviour on 19 October was not as serious as the panel had been led to believe. . . . The claimant had been at the school for eight years . . . there had been one previous intervention by her in discipline which had not been discussed with her in any way such that she would understand what it was that she was not to do. There was no element of blatant or repeated defiance . . . if the claimant had defied authority it was based on her own lack of understanding of the purpose of the behavioural policy . . . " (Emphasis added.)
Lord Justice Jackson: