Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 320/04

APPLICANT: AB

RESPONDENTS: 1. CD

2. EF

DECISION

The unanimous decision of the tribunal is that the application be dismissed.

Appearances:

The applicant was represented by Mr A Carlin of INTO

The respondents were represented by Ms A Finegan, Barrister-at-Law.

EXTENDED REASONS

1. The issues for the tribunal were whether the second respondent had a reason for dismissing the applicant from his post as a teacher which fell within the parameters of Article 130(1)(b) of the Employment Rights (Northern Ireland) Order 1996 and whether, in effecting that dismissal, the second respondent acted reasonably.
2. The Facts

There was little dispute about the facts. The applicant had been employed as a supply teacher teaching children with special needs from the latter part of 1999. Over the course of time he worked for more and more hours until it was suggested in September 2001 that he might apply for a two year temporary contract. He did so and was successful. No contract came through for him. He phoned the second respondent with regard to a contract on a number of occasions and was told that there were often delays. Eventually he left the matter up to the second respondent. He was encouraged by his principal to apply for a full-time position. He did so and attended for interview where he was told he had been successful and that, following the appropriate police check, the appointment would be confirmed. The applicant was concerned when no contract or confirmation arrived. During the course of March 2003 there were phone calls between the applicant and his principal and the second respondent which gave the applicant the impression that there was concern at the police check not coming through. The applicant phoned the second respondent and spoke to an official, Mr G who asked if the police had had reason to delay the check, and also enquired if there had been an incident involving the applicant in 1994. The applicant said that there was no incident. He had in fact been the subject of an investigation earlier. The applicant told Mr G that he would phone the police and spoke and wrote to Inspector O of PSNI. She advised him that there seemed to be a problem in relation to an incident in 1994. The applicant stated that he then sought to phone Mr G again to explain his situation and finally arranged a meeting for 26 March. Mr G did not give evidence himself, but documents prepared for the purposes of an investigation into the matter during the course of 2003 refer to the applicant being called to a meeting by Mr G. A meeting undoubtedly took place on 26 March. Prior to that meeting taking place Inspector O had written formally to Mr G, who was in charge of personnel for the second respondent, stating that, while the applicant did not have a criminal record, he had been the subject in 1994 of a serious investigation. It was alleged that the events mentioned in the allegations occurred over a number of years and were reported by the injured party when she was nineteen years of age. The DPP had directed no prosecution.

3. At the meeting on 26 March the applicant was informed that he was being suspended in accordance with paragraph 7 of the Disciplinary Procedures, such suspension to take effect immediately and to be with full pay. This was on the basis that a report had been received from the police indicating that the applicant had been the subject of an investigation into serious allegations and that, during a telephone conversation with Mr G, the applicant had denied previous involvement in a police investigation. The applicant's union became involved in the matter at this stage and there was some correspondence between the union and the second respondent who also made further enquiries to the police. By letter of 22 July the PSNI confirmed to the second respondent that the applicant had been subject to police investigation in 1994 in relation to these allegations. The letter went on to say that, at the time of the investigation, a number of people had been spoken to and related that they had been spoken to by the injured party whilst at school at an age as young as twelve to fifteen years about the allegations. A consultant psychiatrist had concluded in his examination of the injured party that the symptoms were indicative of an individual who had been severely traumatised. The letter went on to say that senior police at the time agreed that, whilst there was no direct corroborative evidence, the applicant had indeed abused his position of trust. The letter further stated that the Director of Public Prosecutions had directed no prosecution notwithstanding the grave suspicion that the applicant had committed the offences as alleged.

It was the second respondent's evidence, which the tribunal accepted, that it was unusual for the police to divulge information about an individual unless they considered there were risks about which they had grave concerns and that the letters concerned were unusual and strong.

4. Following receipt of this information a disciplinary meeting was called for Friday 22 August 2003. The applicant was informed of this meeting, and further advised of his right to be accompanied by a colleague or trade union representative. That meeting was, however, postponed. At that stage, Mr G was succeeded as chief administrative officer of the second respondent by Ms H. She reviewed the matter, and the papers, and considered that the

issues involved fell outwith the ordinary disciplinary procedure, which related to matters which occurred during the course of a teacher's employment. Accordingly, on 24 October 2003, she wrote to the applicant to advise him of this view, and to state that the issue related to the risk that would be posed by his continued employment as a teacher in close contact with children. Copies of the two police letters were included with this letter and reference was made to the second respondent's obligations in the area of child protection under the Department of Education's Circular of 1999/2000 and their Guidance Booklet on pastoral care in schools. The letter indicated that the second respondent was considering the termination of the applicant's employment on the grounds that the second respondent's concerns in respect of the risk posed by his continued employment as a teacher in close contact with children might constitute a substantial reason for dismissal. The letter stated that the second respondent had not yet come to a final view on the matter and, before doing so, would wish to afford the applicant an opportunity of making representations in relation to its concerns. The meeting was fixed for Tuesday 4 November. The applicant was advised that he might be accompanied by a trade union representative or a colleague and the letter was copied to his trade union representative. On 30 October Ms H wrote to the applicant's trade union representative confirming the position and re-stating that the meeting was being held to allow the applicant to respond to the information contained in the PSNI correspondence, to enable the second respondent to determine thereafter whether or not his current employment as a temporary teacher should be terminated and whether or not the offer of a permanent teaching post should be withdrawn. Copies of the PSNI letters were again furnished. This letter was written in response to a query by the applicant's trade union representative enquiring under what procedure the meeting was being actioned and seeking the provision of all documentation which would be considered thereat.

5. At the outset of the meeting Ms H explained that it was an opportunity for the applicant to respond to the allegations made by the police which, in the second respondent's view, warranted the ending of his temporary employment and the withdrawing of the offer of permanent employment. The applicant enquired what he could say to change the position. Objections were also raised on the applicant's behalf to the procedure being adopted on the basis that the original letters had referred to the disciplinary procedure but now the matter was being dealt with outside the disciplinary procedure. The applicant stated that he had denied the allegations and stated that he had not been charged. His representative indicated that he had a satisfactory record as a teacher, that he had not been convicted, and that he had no criminal record. The applicant said that he had been teaching in the school in question for four years, that he had been encouraged to apply for the post and that he should not have to come cap in hand to the second respondent. He talked of his contacts with Mr G and suggested that he, Mr G, had drawn inferences which he should not have done. He had never denied being the subject of an investigation. He said that while the police had given information they had withheld information as well.

The second respondent's witnesses implied and the applicant accepted, that he had been reluctant to give information. An adjournment took place at this point. After that adjournment the applicant did give further information as regards the police matter. He suggested that the allegations had been made in a wider family context and that there had originally been allegations against two persons, allegations that were subsequently withdrawn against the other person but not against him. He said that the allegations were fabricated in a conspiracy and that he had, at about the time of the meeting of 4 November 2003, asked the Police Ombudsman to consider the police position in regard to the matter. He commented that there had been an element of stalking of him by the person making the allegations who, he felt, was jealous of himself and his wife. He also said that he had been asked to attend Lurgan RUC Station in relation to seeing the records of the matter being destroyed.

6. Following the meeting Ms H, in company with Mr I, the Human Resources Manager of the second respondent, considered the matter again. Their conclusion was that serious concerns about the applicant's position remained; they had not been allayed or dissipated; she felt there was no option but to terminate the applicant's existing employment and to withdraw the offer of the permanent post. Accordingly she wrote to the applicant on 6 November 2003 to state that they had considered the information in the two PSNI letters and the applicant's confirmation that he was the person referred to in those letters. They had considered his statement that he felt the PSNI had not provided all information concerning the matters and recognised that he had not been prosecuted but the second respondent must, notwithstanding the above, consider the information and how it impacted on the post of assistant teacher in the school in question. Given that the PSNI had confirmed that senior police at the time had agreed that the applicant had abused his position, and further, that the direction of no prosecution had been notwithstanding the grave suspicion that he had committed the offence, they felt that his temporary employment should be terminated and the offer of the permanent post should be withdrawn. Shortly afterwards the Department of Education was advised of the second respondent's decision.

Following the decision both the applicant's union representative and the applicant himself wrote to the Chief Executive of the second respondent to ask him to reconsider the second respondent's position and decision. His union representative also asked what reasons had led to the decision. The applicant's union representative subsequently wrote again to the Chief Executive to indicate that he believed the applicant was entitled to have the reasons for his dismissal clearly established, and that he had a right to appeal the decision taken by the two officials of the second respondent. Following this the Chief Executive wrote indicating that he had carried out a careful review of all the papers available in the matter and had considered the issues raised by the applicant. He further stated that he believed the decision taken to terminate the applicant's employment was justified and that, regardless of any disagreement which the applicant might have with the police in relation to the matters referred to in their correspondence, the fact remained that the second respondent had in its possession correspondence from the police indicating grave suspicion that he had committed the offences as alleged. He indicated that it was the second respondent's view that, given the nature of the information provided by the PSNI, the risk presented by the applicant's continued employment as a teacher in close contact with children constituted a sufficient and substantial reason for his dismissal. The Chief Executive also wrote to the applicant's union representative stating that he had considered the matter in detail and was of the view that the decision to terminate the applicant's employment had been justified.

SUBMISSIONS OF THE PARTIES

7. On behalf of the applicant it was suggested that it was inappropriate that the focus of the meeting of 4 November 2003 should have been only the police letters and also inappropriate, in the words of his representative, 'to place an onus on the applicant to prove their case'. It was the applicant's contention that he had taken reasonable steps, including telephone calls to Mr G of the second respondent, and the PSNI, to resolve a difficult situation.

The disciplinary process was flawed in regard to his suspension under the disciplinary procedure, even though the disciplinary matters were not justified. It was also flawed in that the applicant was denied his rights to an independent investigation of the matters that led to his dismissal. Nor did the second respondent contact the police again following the meeting or allow the applicant to introduce any other evidence to rebut the matters under investigation. It was appropriate that the tribunal should consider whether or not the risk to children from the applicant was as great as was suggested by the second respondent, and whether they could have taken other action to ensure the code of practice was operated correctly within the school without removing him.

As regards the code of practice itself the tribunal should bear in mind the code of practice referred throughout to convictions and that the applicant was never convicted of, or even charged with, the offences. Nor did the code of practice set itself up as a vehicle to enable an employer to terminate employment; nor, finally, did the code of practice purport to be an authoritative interpretation of the law. It was further the applicant's contention that the disciplinary procedure in place between the second respondent and its teachers was appropriate for the matter and that under that procedure criminal offences outside employment should not be treated as automatic reasons for dismissal.

It was also suggested that the applicant's human rights had been breached firstly under Article 6 in denying him access to a collectively agreed procedure and denying him a right of appeal. Had the procedure been followed he would have been able to call evidence and to obtain papers. His right to privacy had also been breached in that his private life had been exposed and, by informing the Department of Education of his termination, his livelihood could be removed.

As regards the applicant's own conduct it could not be said he had contributed to his own misfortune in any way. He had not been charged or convicted; he had not been the subject of any complaint; he did, after a slow start, give information at the meeting of 4 November.

8. On behalf of the second respondent it was submitted that the procedure was fair; there had been an investigation originally and a recommendation that the disciplinary authority should hold a disciplinary hearing. This hearing never took place as it was felt that the matter involved was not something which fell properly to be dealt with under the ordinary procedures. The concern throughout was as to the applicant's suitability to teach children and particularly children with special needs. The applicant had been advised of this view. He had been warned that the second respondent was considering the termination of his employment and he had been offered the opportunity of attending a meeting where he could make representations. The applicant had in fact attended the meeting but had not been forthcoming with any information of substance which might have allayed the second respondent's reasonable concerns. He had concentrated largely on his complaints to the Police Ombudsman and to his having attended a meeting to destroy documents, but at no stage had he suggested that the information provided to the respondent by the police was incorrect. If he had complained to the Police Ombudsman it was strange that no document of any kind could be produced to support the assertion, and also strange that no contact whatsoever had been made by the Police Ombudsman's office with the second respondent.

As to the question whether the disciplinary code should have been used, there had been nothing during the currency of the applicant's employment which had given rise to any complaint. The matters disclosed by the police background check were other matters which gave rise to genuine and serious concerns for the second respondent, who had heavy obligations in respect of child protection. The Employment Rights Order permitted an employer to show that the reason for dismissal was a substantial reason other than one related to capability, conduct, redundancy or contravention of statutory duty and was of such a kind as to justify the dismissal of the employee. The tribunal should have regard to the tenor of the Child Protection document issued by the Department of Education for guidance. In particular it dealt with situations where complaints against teachers did not result in conviction. It made clear that in such cases it remained open to schools to pursue disciplinary proceedings against the member of staff concerned, and that the burden of proof was less stringent in employment law than in criminal law. While the relevant paragraph related to current complaints against current members of staff similar considerations would apply in situations such as pertained to the applicant.

Although there was no formal procedure in existence into which this particular situation fell the applicant was treated procedurally fairly in that he was given a hearing and the full opportunity to advance any information or evidence pertaining to the matters raised in the police letters at the meeting of 4 November 2003 and to advance any arguments on his own behalf or through his trade union representative.

After his dismissal the applicant wrote to the Chief Executive of the second respondent. While it had to be accepted that the applicant did not have an appeal hearing it was clear in the correspondence the Chief Executive considered all the information and all the issues raised by the applicant in his letter together with all the other papers pertaining to the case. West Midlands Co-operative Society –v- Tipton [1986] 1AER 513 was authority for the proposition that a failure to permit an employee to exercise a right of appeal might render an otherwise fair dismissal unfair, not that it will necessarily do so.

THE TRIBUNAL'S FUNCTION

8. In approaching the issues in this case it is no part of the tribunal's function to conduct a re-hearing of the disciplinary or other proceedings which affected the applicant during the course of the events described in the foregoing statement of facts. The tribunal's job is to determine whether, on the basis of the evidence, the reason given for the applicant's dismissal was one falling within the ambit of Article 130 of the Employment Rights (Northern Ireland) Order 1996 and whether, in all the circumstances, the applicant's employer acted reasonably in treating it as a sufficient reason for dismissing him. Whether, in fact, the employer acted, reacted and behaved reasonably in the events with which it had to deal. It follows that, in this particular case, the issue for the tribunal is not whether the allegations contained in the letters received from the PSNI were true, or whether the PSNI letters should have been written in the terms they were, but rather whether the actions of the second respondent following receipt of the letters were reasonable.

In considering whether the second respondent's actions were reasonable the tribunal must consider whether there was justification for an investigation in the first place. It must then consider whether the investigation carried out, the procedure adopted throughout, the conclusions reached on the basis of the evidence obtained, and the sanction imposed following those conclusions, all fall within the reasonable range of behaviour in relation to the particular function.

THE TRIBUNAL'S FINDINGS

9. To deal with the first question, the tribunal has no doubt that the initial letter from the PSNI indicating that the applicant had been the subject of an investigation of allegations of an extremely serious nature, which were alleged to have occurred over a number of years and were reported by the injured party when she was nineteen, had to give rise to legitimate concerns as to the applicant's suitability for employment which brought him into contact with children, especially where, as in this case, the children concerned were particularly vulnerable. The tribunal finds that it was wholly reasonable for the second respondent to investigate further.
10. The next question is whether the second respondent conducted a satisfactory investigation. The second respondent sought additional information from the police and eventually received a letter expanding the original information, and expanding it in the starkest of terms, which emphasised the severity of the conduct complained of and the strength of the belief of the authorities at the time in the applicant's guilt. The tribunal accepts the evidence given by Mr I that to receive a letter in such terms from the police is unusual and that such information is only given if the police consider there is a significant risk. The tribunal considers that it was reasonable for the second respondent to conclude their investigation at that stage and that it was reasonable for the second respondent, given the strength of belief expressed, to expect significant co-operation and information from the applicant before any further investigation might take place. The level of co-operation given by the applicant was not good. When the topic of a 1994 incident was first canvassed, even before the initial letter had been written, the applicant, on his own evidence, said that there was no such incident. Although he suspected that there was something going on and, on his own evidence, thought the person who had made the original allegation had made a further allegation, he said that he ruled out the incidents mentioned in the letters. The tribunal did not find this portion of the applicant's evidence convincing. Nor did the tribunal find the immediately subsequent evidence of the applicant with regard to his arranging a meeting with Mr G with a view to straightening all these matters out convincing either. The applicant's own evidence about the later meeting in November was that he approached it thinking that it was a charade. He justified this belief by reference to the letter from Ms H inviting him to the meeting which, he said, made it clear that there had been a change of 'tack'. While it is true that that letter did indicate the matter was no longer being operated under the standard disciplinary procedure, but was to be looked at in relation to his suitability as a teacher, there had been no change whatever in the basic subject matter, namely the police letters. He also said that he did not know how much he could tell the second respondent given that he was aware that the Police Ombudsman was conducting an investigation into the matter. The tribunal finds this surprising. Even if, as the applicant said, part of their investigation would involve the second respondent themselves, the tribunal finds it difficult to see why the applicant should not have been completely and totally forthcoming to the second respondent, especially given the fact that he was well aware that the possibility of his employment being terminated was a real one. In the event the applicant told the second respondent's officers that the person who had made the allegations had made the allegations against someone else as well. He did not, on his own evidence, go any further than that. He also described another allegation, which he said had been malicious, and that there had been an element of stalking by the person making the allegations, with possible jealousy of himself and his wife. This information, however, would not, in the tribunal's view, impact on the significant points in the second police letter, namely the severity of the offences and the strength of the belief in the applicant's abuse of his position of trust. The applicant told the tribunal that he had been engaged in significant efforts, including undergoing forensic hypnosis, with a view to getting the police to scrap what they had said. However he stated to the tribunal that he did not think he had informed the second respondent's officials of these efforts. No such information was recorded in the notes of the meeting and no such information was mentioned in any evidence of those officials. The tribunal finds that this information was not in fact given. The applicant told the officials that he had attended for the destruction of documents in the case, he also indicated that the police had not been fully open and that he was in the process of taking the matter to the Ombudsman. However, he did not expand on the nature of the complaint he had made to the Police Ombudsman, or the nature or subject matter of any enquiry which might be being made. In the tribunal's view none of this information was such as to require or cry out for a further investigation to be undertaken or to go any significant way towards refuting or diluting the impact of the police letters. It is possible that the second respondent could have made further enquiries but that is not the question. The question is whether by not doing so the second respondent had acted unreasonably and the tribunal finds that it had not. All-in-all, the tribunal finds that the investigation in relation to the matter was reasonable.
11. The next matter to be considered is the procedure. The applicant made considerable play of the fact that the matter was originally stated to be being dealt with under the standard teacher's disciplinary code but that the basis of operations was then changed. In the tribunal's view the issue to be looked at is rather broader and more fundamental. The issue is not so much which procedure was adopted but whether the procedure which was actually used and adopted was fair. In this case the applicant was given full details of the matters which were being raised for consideration; he was given an adequate and reasonable opportunity to address those matters; he was afforded the right to be represented, a right of which he availed himself. The applicant's representative suggested that had the matter been dealt with under the ordinary rules of procedure the applicant would have been entitled to obtain documents and call witnesses. However there was no evidence that the applicant ever asked for either witnesses or documents and was refused, or that he wished to do so. The tribunal did not consider that suggestion to involve any question of unfairness. In conveying the second respondent's initial decision to the applicant there was no mention made of any right of appeal. However when that matter was raised by the applicant's representative, and when the applicant himself wrote to the second respondent's Chief Executive, the Chief Executive did review the file and the papers and convey his decision to the applicant. Looking at the matter in the round the tribunal considers that the procedure involved in this case was fair and reasonable.
12. The conclusions reached by the second respondent's officials on the basis of the letters from the police were not spelled out in the applicant's letter of dismissal. However, a clear indication of the nature of the reason for dismissal was given by the references in that letter to the beliefs expressed in the police letters and the need for the second respondent to consider how the information so provided impacted on the post of assistant teacher in the school in question. The reason could also be deduced from the clear reference to the risk involved in employing the applicant set out in the letter setting up the disciplinary meeting. In writing to the Chief Executive immediately after his dismissal the applicant himself acknowledged the need to protect the rights of school children and the second respondent's duty in that respect. The second respondent's reasons were more clearly spelled out in the letter from the Chief Executive, following his review of all the papers and following his consideration of the issues raised by the applicant, where he stated that the reason for dismissal was the second respondent's view, given the nature of the information provided by the police, of the risk presented by the applicant's continued employment as a teacher in close contact with children. Given the nature of the information in the police letter this was a reasonable conclusion and the tribunal has no doubt that, having reached that conclusion, dismissal from his existing contract and withdrawal of the offer of future employment fell within the range of reasonable responses. Nor does the tribunal have any doubt that the reason for dismissal was a substantial reason within the meaning of Article 130 of the Employment Rights (Northern Ireland) Order 1996.
13. The applicant's representative raised the issue of the Human Rights Act. The tribunal considers that Article 6 is not an issue in the case. While it is quite clear that the disciplinary procedures were not operated independently the same is true of all disciplinary procedures. The protection in all these cases lies in the ultimate right, which the applicant has, in fact, exercised, to have his rights determined independently, that is to say by this tribunal. As regards his right to privacy it has to be accepted that information as to the applicant's private life was sought. Intrusions into the private lives of individuals are permitted for appropriate purposes provided the intrusions are proportionate. The need to protect vulnerable children is a clear justification for some intrusion and the information sought by the second respondent did not offend against the principle of proportionality. Accordingly, the tribunal does not consider that Article 8 assists the applicant either.
14. The tribunal accepts that the applicant was not charged with any criminal offence and that he denies any wrong doing. However, the issue for the tribunal is whether the decision to dismiss fell within the range of reasonable responses in the light of the information provided to the second respondent by the police and of the second respondent's duty to protect children. In the tribunal's view the second respondent's decision clearly fell within the range of reasonable responses for the reasons set out above. The application is therefore dismissed.

Chairman:

Dates and place of hearing: 7 October 2004, 11 November 2004 and

21 December 2004, Belfast.

Date decision recorded in register and issued to parties: