United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	EAT/1434/98 MR J M CARTWRIGHT (of Counsel) MR J P SIMMONDS Messrs Simmonds Grant Solicitors 4 Mill Street Oakham Rutland LE15 6EA EAT/1435/98 MR HODKINSON (of Counsel) appearing under ELAAS MS A HELPS Hurrican House High Road North Weald Essex CM16 6BJ


 


MR JUSTICE MORISON (PRESIDENT): This relates to two appeals, EAT/1435/98 and EAT/1434/98. The cases are Ms Helps v St Edmund's College and Mr Meatyard v St Edmund's College.

This is a preliminary hearing involving two separate appeals respectively by Mr Meatyard and Ms Helps. These appeals have been taken together and this is a judgment which applies to both. The purpose of this preliminary hearing is to determine whether the Appellants, or either of them, have shown arguable points of law in their Notices of Appeal. The facts giving rise to these appeals can be shortly stated. Both Mr Meatyard and Ms Helps were employed as teachers by a private school called St Edmund's College. Mr Meatyard was Head of Physics. There came an occasion on 17 January 1997 when the two teachers, Ms Helps being a teacher of business studies and economics, invited 4 or 5 senior members of the CCL to join them for a coffee evening in Mr Meatyard's rooms. As a result of a parents meeting which did not finish until about 10 o' clock in the evening, the only person who attended at 10.30 was a 17 year old female pupil, thus there were 3 of them in the room.

In accordance with recognised practice as we understand it, the pupil was allowed to have small amounts of alcohol and she helped herself from a large bottle to what the Tribunal found to be a pint of cider. At some stage during the course of the evening, the pupil became unwell, it was thought about 2 o'clock in the morning, and Mr Meatyard left the room to take his dog out for a walk and was followed out by the pupil who wanted a bit of fresh air. She was slightly ill and they returned to the room and found that Ms Helps had gone off to bed, leaving a note to ring her so that she could open the girls boarding house, which at night is usually locked and alarmed. In fact another teacher, a Mrs King, was telephoned and she was confronted by the female pupil about 2.20 o' clock in the morning, who was smelling of alcohol and appeared to have dirt on her face. The headmaster saw each of the 2 Applicants on the 20th and having ascertained that there was no dispute as to the primary facts, cut short the meeting so that the Applicants could have proper representation. They were both sent letters telling them what the disciplinary procedure would be and again he saw them separately on 7 February. On 11 February, Mr Meatyard wrote to "qualify my agreement to wait for a night cap until he had spoken with Ms Helps." He pointed out it was now some time since the investigation had begun and that the headmaster had appeared to adopt an adversarial attitude in the disciplinary hearing and had jumped to the conclusion that the comment about prejudicing the case referred to prejudicing Ms Helps' case rather than his own, which suggested to him that the headmaster had already made up his mind.

The headmaster responded by calling the Applicant, Mr Meatyard, to a meeting to inform him that he was dismissed and the letter confirming the dismissal was to the effect that Mr Meatyard had been found guilty of conduct constituting a breach of his duty of care, which he concluded had been admitted. Firstly that he kept the girl pupil out of boardings until 2.20 in the morning, secondly that the girl pupil had in his company consumed alcohol to the point that she was intoxicated, thirdly that he had permitted a girl pupil to go from his room outside in the early hours of the morning, and fourthly that when the girl became ill, he had sought no assistance from a qualified nurse. There was a right to appeal but the appeal was subsequently dismissed.

Ms Helps' disciplinary hearing took place on 20 February. No witnesses were called, no statements were provided to her or her representative. Her disciplinary hearing was halted after about 3 hours when the representative wanted to confer, and the representative then asked to see the headmaster in the absence of Ms Helps. Various conversations then took place. In the knowledge that the most likely outcome was dismissal it was made clear by the headmaster that he would not accept a normal term's notice of resignation. Negotiations went on beyond the weekend and on the morning of Tuesday 25 February, the Applicant, after further discussion with her representative on Monday night, resigned with effect from 30 April.

The Industrial Tribunal concluded that both teachers may have been guilty of an error of judgment in allowing the pupil to stay out so late, although these coffee evenings are intended to enable these young senior pupils to relax and enjoy social discussions with a modest amount of alcohol being available for their use. The headmaster was clearly upset that Mr Meatyard had not understood in any way what he regarded as the gravity of the misconduct.

The Tribunal said this:

"It is for us to determine this issue on the evidence which we have heard. We have had the advantage of the pupil's detailed evidence, which we believe. That evidence goes no way near establishing that Mr Meatyard had behaved in so unprofessional a way in relation to this pupil as to amount to gross misconduct entitling the Respondents to bring his contract to an end without notice. Mr Meatyard was wrongfully dismissed, the question of remedy will be dealt with at a date to be fixed. It is to be noted at this time that Mr Meatyard did not have the requisite time of continuous employment to entitle him to bring a complaint of unfair dismissal. His was a complaint of wrongful dismissal only, but Ms Helps on the other hand did have sufficient service and the Tribunal looked at the question as to whether the dismissal was fair or not."

They concluded that they did not consider the school had acted reasonably in treating her behaviour as a sufficient means of dismissal. The investigation was flawed, he relied on statements which were undated, unsigned and not shown to Ms Helps. No written statement was taken from the pupil herself.

However, they also held that Ms Helps herself was at fault. Either she had permitted professional errors of judgment in not bringing the evening to an end earlier and indeed returning to her room without escorting the pupil safely back to the boarding house. Simply leaving a message to the effect that the pupil could telephone her to be admitted to the boarding house at that time of night was not satisfactory and they therefore decided that her award should be reduced by 25%.

Following the hearing on liability, against which there has been no appeal, the Industrial Tribunal organised a remedies hearing, the result of which that Mr Meatyard was paid £8,862 damages for breach of contract and Ms Helps was awarded a basic award of £350 and a compensatory award of £9,125 subject to the Recoupment Regulations. The issue in relation to Mr Meatyard was whether, having regard to the decision of the House of Lords in a case of BCCI and Malik reported at 1997 IRLR 462, he could recover more damages than the pay he would have received during the period of notice which would have been given to him if he had not been summarily dismissed.

It was a submission made by Mr Cartwright on his behalf at the Industrial Tribunal, which was repeated to us here, that the school over-reacted to what could only be described as a minor error of judgment and that that over-reaction amounted to a breach of the implied duty of trust and confidence, which itself has caused substantial damage beyond the 3 month period to Mr Meatyard. It was the circumstances of the dismissal (by wrongfully dismissing him he has had no reference), the fact that the school notified the Department of Education about his alleged misconduct, and although he was never on the blacklist, the fact that his name was mentioned at all will have had a damaging affect on his future prospects since every fresh employer will check the Department of Education before employing a teacher. He was dismissed in the middle of a school term, which is an especially damaging thing to happen because it immediately raises questions about why he came to leave in those circumstances. Therefore he would find trying to get another job difficult.

Fourthly, the school concerned is a private school which belongs to the headmaster's conference, which is a closed community and therefore his opportunity for getting other work will be greatly handicapped. Finally, the school sent what was submitted by Mr Cartwright to be a defamatory letter to the Royal Air Force. The reason why a letter was sent was because Mr Meatyard ran or assisted in the running of the school's CCF and apparently it was appropriate for a letter to be sent to the RAF.

He submitted to us that on a proper construction of the speeches in the case of BCCI, where there has been a breach of the implied trust and confidence, damages may be recovered provided that they are reasonably foreseeable and not too remote. On that basis, there was a breach of the implied terms of trust and confidence by the way that the school behaved towards him in the respects that I have indicated and he is entitled to be compensated on that basis. Mr Cartwright of Counsel quite rightly drew to our attention a case called Johnson v Unisys Limited reported 1999 IRLR, page 90, which is a decision at which the Industrial Tribunal did not have the benefit of looking but which substantiated their careful approach to this issue.

It seems to us in this case that what Mr Meatyard is complaining about is the manner in which he came to be dismissed which he says has damaged his reputation in the market place for teachers, as a result of which he has suffered much more substantial damage than that available to him conventionally under the premature termination doctrine. We have to say that we do not consider in the light of the Johnson v Unisys Limited decision of the Court of Appeal that that submission is open on an appeal to this Court. Precisely this question was under examination in the Court of Appeal, and precisely the submission Mr Cartwright made to us was rejected by the Court of Appeal, and they have made it plain that the judgment of the House of Lords in the Addis v Gramophone case is still good law. They pointed out that in the Malik case, what was being complained about was an "anterior breach of the implied term of good faith". In other words, M. Malik was not complaining about a breach involved in the dismissal but rather was complaining about a breach during the course of his employment.

In the Johnson case, the Court was concerned with a plaintiff who wished to claim damages for losses arising from his ability to obtain employment after suffering a mental breakdown because of the manner in which he was dismissed by the defendants. The Court said that the true distinction between Addis and Malik is that the breach of contract in Addis was confined to the manner of dismissal, while the breach in Malik, although it was repudiatory, was a breach by the bank of the trust and confidence it owed to its employees during the period they were employed. The breach in Malik was of a gravity which entitled the employees to regard themselves as dismissed wrongfully, but that was not their complaint. That complaint related to anterior conduct. Accordingly, we are not prepared to conclude that there is any arguable point of law in the appeal which Mr Meatyard wishes to make against the refusal by the Industrial Tribunal to provide him with more compensation than the period of notice to which he was entitled. We would go further than that and respectfully express full agreement with paragraph 24 and 25 of the Tribunal's decision. It seems to us that the Industrial Tribunal was showing great perspicacity in their anticipation of the Court of Appeal's judgment in the Johnson case.

In relation to the appeal by Ms Helps, effectively, apart from the point to which we have just referred, it was argued that the Industrial Tribunal had erred in the calculation of the compensation to which she was entitled. It seems to us that such a submission is unsustainable. The way the Industrial Tribunal calculated her loss is set out in the remedies decision. They took as the starting point the effective date of termination of her contract and calculated the compensation down to the time when she would have lost her employment in any event, namely the end of August at the end of the following year. The reason why she would have lost her employment at that time was due to the state of her health, and therefore they did not award her compensation for the period thereafter.

Again, in an able submission made to us, it was submitted by Mr Hodkinson under the ELAAS scheme that the Industrial Tribunal failed to recognise that as a result of her leaving her employment in the way that she did, she lost out on the scale which applies to teachers, which is based upon the number of years of service. Accordingly, even if the Tribunal were right to have stopped the clock as at the end of August 1998, they ought to have recognised that there was going to be a continuing future element and that the decision of the Tribunal did not explain how they rejected that part of her complaint.

We have to say that we do not accept that that is a fair reading of the Industrial Tribunal's decision. It is true that they have asserted they are not going to allow anything for future loss, by which they meant of course, loss after 31 August 1998. They were entitled to arrive at that conclusion, as it seems to us, having regard to the fact that this Applicant did not obtain full time employment after August of 1998 of which the Tribunal would have been aware, so that her status in the scale would have been due to other causes rather than her dismissal.

But even if that is not right, the Tribunal must take a broad approach to the question of compensation. It is always difficult for them to arrive at a conclusion which cannot be criticised in one way or another. In our judgment, they were fully entitled to arrive at the conclusion which they did, in again, a very well expressed decision.

The totality of this judgment is that there is no arguable point of law raised by either of the Appellants which should proceed to a full hearing, and this is a case where it would be appropriate for the Employment Appeal Tribunal to pay tribute to the careful way in which the Industrial Tribunal has carried out its function in this difficult case.