United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J HARRIS (of Counsel) Semmens & Co Solicitors 4 Penhryn Road Colwyn Bay North Wales LL29 8LG


 


JUDGE PETER CLARK: This is an appeal by Mrs Sparkes, the applicant before the Sheffield Industrial Tribunal sitting on 14th to 16th January 1998, against that tribunal's decision, promulgated with extended reasons on 11th February 1998, to dismiss her complaint of unfair dismissal brought against her former employer, Sheffield City Council. This is a preliminary hearing held to determine whether or not the appeal raises any arguable point or points of law to go to a full appeal hearing.

She was employed by the Council from September 985 until her summary dismissal on 3rd July 1997 as a home care assistant attached to the Social Service Department. She was an extremely conscientious employee with an unblemished employment record. The Industrial Tribunal found that she well knew that it was not within her duties or responsibilities to physically chastise a child.

The material incident, which the tribunal found led to her dismissal by reason of her conduct, occurred on 19th February 1997. On that day she was responsible for collecting a child, referred to as 'U', from nursery school and returning her to her mother, Mrs K's house. The mother should have been then when the appellant and the child returned, but she was 45 minutes late. During this time the appellant was left standing in the rain outside with a child who was "naughty beyond normal" and who kicked the appellant and screamed at her.

Eventually the mother returned and the appellant was invited into the house by Mrs K after the transport which had brought Mrs K had left. In the house the appellant was speaking with Mrs K in the hall when 'U' came downstairs and threw objects at the appellant striking her in the eye. The appellant was angry and actively sought permission from Mrs K to go upstairs, because by this time the child had run upstairs in order to chastise her. The mother gave permission, but the idea was the appellant's as the tribunal found. The appellant went upstairs, smacked 'U' four times on the bottom over her clothes.

The following day the appellant telephoned and spoke to Mrs Hoare, the District Home Care Organiser. The note of that conversation which the tribunal accepted as accurate read as follows:

"This made Jeanette angry and she told Mrs K that she need smacking for doing that. The Applicant then asked Mrs K if she could smack U's bottom. Mrs K agreed. By this time U had run upstairs. Jeanette went upstairs and states she smacked U on the bottom four times."

The upshot was that a disciplinary investigation took place. The appellant was suspended from duty. Eventually a disciplinary hearing was held by the Assistant Director of Social Services, Mr Lister. The tribunal found that that hearing was fairly conducted. The appellant was represented by a trade union representative who it appears made all the points that could properly be made on her behalf, but at the end of the day Mr Lister decided, based upon the fact that the appellant knew that physical violence, which was called assault in the Council's rules, towards people who were in the care of the Council, in any way was strictly forbidden and the breach of such a rule could lead to dismissal, and in his judgment on this occasion, would lead to dismissal. Accordingly, the appellant was summarily dismissed on 3rd July 1997. She did not appeal internally but brought her complaint before the Industrial Tribunal.

The tribunal directed itself that it had two questions to answer. First, what was the reason for dismissal and was it a potentially fair reason under s.98 of the Employment Rights Act 1996? They found that the reason related to the appellant's conduct, that is a potentially fair reason. Secondly, they directed themselves that they had to decide whether dismissal for that reason was fair within the provisions of s. 98(4) of the 1996 Act? The tribunal reminded itself that it is not for the tribunal members to substitute their decision for that taken by the employer, but their task was to determine whether Mr Lister's decision was within the range of reasonable responses open to a reasonable employer. We interpose that that envisages that a reasonable employer at one end of the spectrum may dismiss, another reasonable employer may not dismiss, but if the dismissal falls within that range of reasonable responses, then the dismissal is fair.

The tribunal did not find it an easy case, at least one of their number would, had they been in Mr Lister's position, not have dismissed the appellant, but they reminded themselves again that that was not the test. They came to the conclusion, bearing in mind that the appellant knew that imposing physical punishment was not part of her job and would not be approved of by the Council, and that her decision to apply the punishment was premeditated, in that she was downstairs and she had to walk upstairs having first asked permission from Mrs K. In those circumstances, it was not something which happened in the heat of the moment. Taking all these matters into account, the tribunal concluded that it was a finely judged case, but they were quite unable to say that Mr Lister's decision fell outside the range of reasonable responses and, consequently, the complaint was dismissed.

In this appeal Mr Harris submits first that the incident did not contravene the respondents' written Code of Conduct which provided:

"Assault on another employee, people in care, recipients of Council Services or member of the public."

and could not lead to dismissal. He submits that physical chastisement of a child with the consent of the parent does not amount to an assault.

In our view that is nothing to the point. The question in this case, as the tribunal directed themselves, was whether or not the set of facts which amounted to the employers' reason for dismissal fell within the expression 'conduct' in s.98 of the Act. The tribunal found that it did and, in our judgment, that was a conclusion which they were entitled to reach.

He then sought to take a point that the Industrial Tribunal had overlooked the involvement of Mr Lister in the earlier stages of the disciplinary process, in particular, that he had authorised the suspension of the appellant. He tells us, however, that that was not a point which he took before the tribunal below, and it is therefore not open to him to complain about it before us.

Next, he appears to be suggesting that because at least one member of the tribunal would not have dismissed the appellant, it somehow follows that the Industrial Tribunal were wrong in law in concluding that this dismissal was fair.

We reject that submission. The tribunal correctly directed themselves that it is not for them to substitute their view for that of the employer, but to apply the range of reasonable responses test, which has its origins in the Court of Appeal decision in British Leyland UK Ltd v Swift [1981] IRLR 91 and has been very recently reaffirmed by the Court of Appeal on an application for leave to appeal. The tribunal, in our judgment, plainly applied the law correctly.

Mr Harris invites us to say that there is here an arguable point of law that the tribunal's conclusion was so unreasonable as to amount to a perverse decision.

In our judgment, that difficult hurdle is nowhere near overcome in the circumstances of this case. There is no arguable point of law in this appeal and accordingly it must be dismissed.