United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1193_94_1201

Appeal No. EAT/1193/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12th January 1995

HIS HONOUR JUDGE P CLARK

MR J R CROSBY

MR P DAWSON OBE

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MS P MOYA          APPELLANT

LONDON BOROUGH OF GREENWICH          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR BARRY PHILLIPS

(of Counsel)

Ben Schwab

Plumstead Law Centre

105 Plumstead High Street

London

SE18 1SB

For the Respondents MR K J CADOO

(Employment Law Consultant)

Messrs Wadesons

Solicitors

South Bank House

Black Prince Road

London SE1 7SJ


 


JUDGE CLARK: This is an appeal by Ms Moya, the employee, against a decision of the Ashford Industrial Tribunal dismissing her complaint of unfair dismissal against her former employers, the London Borough of Greenwich. The extended reasons for that decision are dated 25th October 1994.

Ms Moya was employed as a teacher of children suffering from autism and/or complex learning difficulties at Griffin Manor School.

On 6th January 1993 certain of the children were taken on an outing by bus. The Appellant was one of six adults accompanying the children. On the following day it was reported to the head teacher, Mr Sullivan, by a staff member on the bus, Mrs Elbekri, that she had seen the Appellant kick one of the children (referred to by the initial `S') whilst on the bus.

Mr Sullivan instituted disciplinary proceedings against the Appellant. She was interviewed by him and suspended on 8th January 1993.

Other members of staff on the bus that day were interviewed and written statements taken.

A disciplinary hearing was held on 4th February 1993 as result of which the Appellant was summarily dismissed for gross misconduct.

She exercised her right of appeal. That appeal was heard by a panel consisting of Greenwich Councillors. Witnesses were called and cross-examined. The appeal was dismissed.

The Industrial Tribunal found that the reason for dismissal related to the Appellant's conduct. They considered submissions on behalf of the Appellant that the employer had not carried out a reasonable investigation into the matter and that it did not have reasonable grounds for believing that the Appellant had kicked S. It rejected those submissions.

Finally, it considered whether dismissal fell within the range of reasonable responses. It regarded the case as borderline, but avoiding the trap of substituting its own view for that of management the tribunal concluded that dismissal fell within that band.

The Notice of Appeal focuses on one specific aspect of the tribunal's findings set out in paragraph 21 of the reasons in this way:

"21 ... Mr Sullivan's failure to report the matter to the Child Protection Agency is not an appropriate procedure for us to consider when deciding whether the employer has acted reasonably in deciding to dismiss an employee. We are considering only the termination of the applicant's employment. We have studied the Child Protection procedures and the discipline and efficiency rules and procedure, and we are satisfied that the Child Protection procedures are not part of the disciplinary procedures. The respondent's failure to use the Child Protection procedures does not mean that the respondent has acted unreasonably as regards a decision to terminate the applicant's employment. ..."

Mr Phillips, on behalf of the Appellant, sought leave to amend the Notice of Appeal at the outset of this hearing so as to introduce a more wide-ranging attack on the Industrial Tribunal's finding that the employer had carried out a reasonable investigation. That application was opposed by Mr Cadoo on the ground that it came too late in the day and took him by surprise. We think that submission has force, and in the absence of any application for an adjournment we refused the application.

At the same time Mr Phillips abandoned the contention set out in paragraph 7 and 8 (a) of the Notice of Appeal that the Industrial Tribunal erred in finding that the Child Protection procedure (CPP) was not part of the disciplinary procedure operated by the Respondent. He conceded that it did not form part of the disciplinary procedure.

In the result the point taken in the appeal came to this; that the tribunal misdirected itself in not taking into account the failure of the Respondent to use the CPP when considering whether or not the Respondent carried out a reasonable investigation, and thus had failed properly to consider the test of reasonableness under Section 57(3) of the Employment Protection (Consolidation) Act 1978 in one of the ways identified in the well-known Burchell test.

In our judgment that complaint is misconceived. The CPP is in place to protect children. It does contain potential safeguards for employees accused of child abuse, but that does not provide additional rights over and above those contained in the Respondent's disciplinary procedures. It is not suggested that any breach of the disciplinary procedure occurred in this case.

Further, certain aspects of the CPP relied upon by the Appellant, are set out at paragraph 19 of the tribunal's reasons. In particular the failure by the Respondent to obtain a medical report, or obtain information from the child's parents. These matters are dealt with in paragraph 21 of the reasons, and were taken into account by the tribunal in reaching its overall conclusion that a reasonable investigation had taken place for the purposes of Section 57(3). We are unable to detect any error of law in the tribunal's conclusion on that issue.

It follows, in our judgment, that this appeal must be dismissed.