United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J HEAL (of Counsel) ELAAS


 


JUDGE PETER CLARK:

1. The appellant, Mr Levi, was employed by the respondent School as an English teacher from 19th December 1992. He claimed that he was unfairly dismissed from his employment on 17th December 1997. The respondent took a point that he was not dismissed but had resigned, alternatively the contract had been frustrated.
2. That preliminary issue came before a full Employment Tribunal sitting at London (North) on 13th July 1998 under the chairmanship of Mr C A Carstairs. That tribunal found that he was constructively dismissed and the matter proceeded to a full merits hearing before a tribunal chaired by Mr P R K Menon sitting on 5th and 6th October 1998.
3. At the outset of that hearing Counsel for the respondent conceded that the dismissal was procedurally unfair, but contended that had a proper procedure been carried out his dismissal would have been fair; alternatively he contributed to his dismissal to the extent of 100%. A further point was taken that the appellant had failed to mitigate his loss.
4. The factual background to the dismissal, so the Menon tribunal found, was as follows.
5. The respondent had no official policy about student/teacher relationships.
6. In September 1996 the appellant was accused of indecently assaulting a Japanese female student at his home in May 1996. That accusation was made by a friend of the student. The student herself did not wish to make a formal complaint. In these circumstances the College Principal, Mr Littlewood, decided to take no action against the appellant, but, so the tribunal found, he warned him as to his future conduct. Mr Littlewood said that if he received a similar complaint against the appellant "he'd be out on his ear". The Principal's concern was as to the reputation of the School. Further, Mrs Syer, the Deputy Principal, advised the appellant not to take students to his home.
7. On 10th February 1997 a female Japanese student aged 22 made a complaint to Mrs Syer that the appellant had taken her home where he began to touch her. She told him that she did not want to have sex with him but that is what happened.
8. As a result Mr Littlewood contacted the police who charged the appellant with rape. He was in due course released on conditional bail pending his trial. One condition was that he did not contact any prosecution witnesses. That included Mr Littlewood. Further, he was required to live outside London. In these circumstances the respondent was unable to take disciplinary proceedings against the appellant pending his trial.
9. That trial took place at Isleworth Crown Court between 8th and 16th September 1997. The defence was one of consent. The upshot was that the appellant was acquitted by the jury.
10. Thereafter, he tried to resume his teaching post with the respondent but was not permitted to do so. He was dismissed without a proper disciplinary procedure being invoked. That dismissal, as we have observed, was accepted by the respondent to be unfair.
11. At paragraphs 18 and 19 of the Menon tribunal's reasons, promulgated on 10th November 1998, that tribunal set out the rival submissions of the parties as to first, whether a fair procedure would have made any difference to the outcome and secondly as to contributory fault. The tribunal accepted the primary submissions made on behalf of the respondent and concluded, first, that the School would have fairly dismissed the appellant in any event had a proper procedure been followed. Alternatively that he contributed to his dismissal to the extent of 100%. Their reasoning was as follows:

"20 … The Applicant acted foolishly and with a singular lack of common-sense or regard to the adverse effect his conduct was likely to have on the reputation of the School. The fact that he might have been innocent of any criminal conduct is irrelevant; the fact is that within a short space of five months two female students made serious allegations of sexual misconduct against him. He had been given a warning after the September 1996 matter. By causing those complaints to be made his conduct, he had breached the implied employment relationship of trust and confidence between himself and the School by inviting by his conduct complaints of sexual misconduct against himself which were likely to cause harm to the School's reputation and adversely effect its business. The School could not have afforded, nor should it have had to wait, for a third similar complaint to occur in the future. Dismissal would have been the most likely outcome of a procedurally fair hearing."

12. Accordingly the tribunal awarded the appellant nil compensation for his unfair dismissal. Against that finding the appellant now appeals.
13. Before us today, the appellant has had the advantage of representation by Miss Heal of Counsel under the ELAAS pro bono scheme. She expressly does not abandon any of the grounds of appeal advanced by the appellant in his Notice of Appeal.
14. We should say that we have carefully read the papers in this case, and insofar as complaints are made of bias on the part of the tribunal, we have taken into account the comments made by the Chairman, Mr Menon, both on the grounds of appeal and an affidavit sworn by the appellant in these appeal proceedings. Having done so, we are quite satisfied that no reasonable observer would conclude that the tribunal showed bias against the appellant in this case and without going through each and every allegation we reject them.
15. Further, there are complaints made in the Notice of Appeal as to findings of fact by the tribunal, particularly the finding that he was given a warning after the September 1996 complaint and in relation to the calling of witnesses. As to the first, we have no jurisdiction to retry the facts. As to the second, we are satisfied with the explanation given by the Chairman that the appellant and his representative were not prevented from presenting his case properly.
16. The real point in this appeal, it seems to us, and the one on which Miss Heal has rightly focussed, relates to the finding that it would not be just and equitable to award any compensation under s.123(1) of the Employment Rights Act 1996, and secondly, that the appellant had contributed to his dismissal to the extent of 100%, both for the purposes of the compensatory award and the basic award.
17. We have set out the basis of the tribunal's finding at paragraph 20 of their reasons. We bear in mind the Chairman's note in which he accepts that Mr Littlewood said in evidence:

"I can't say definitely that I'd have dismissed. Acquittal a factor. But would have investigated. First incident – I'd warned him. Second incident – similar nature. The fact that he had brought name of school into disrepute would have been reason."

He went on to say that:

"If a disciplinary hearing had taken place I'd have got colleague from Cambridge as I'd already been involved. To prevent bias."

18. In these circumstances, it seems to us at the least arguable that the tribunal's conclusion that dismissal following a fair procedure would have been inevitable is open to challenge on appeal.
19. Secondly, although the debate as to whether or not a 100% deduction for contribution is permissible, has now been resolved in favour of that course being open to Employment Tribunals, the Higher Courts have made in clear that such a finding will be rare.
20. We are impressed by Miss Heal's point that there is no finding in this case of sexual misconduct as such on the part of the appellant, rather the tribunal's finding is based on the damage to the School's reputation by the fact of complaints being made against him.
21. Again, it seems to us that there is an arguable point in relation to the finding of 100% contribution.
22. A further point which has emerged during the course of argument, although not specifically touched on in the Notice of Appeal, is in relation to the Court of Appeal's decision in Rao v Civil Aviation Authority [1994] ICR 495, and the possibility of a percentage reduction to the compensatory award under s. 123(1) of the 1996 Act; and a further reduction to that reduced amount on the basis of a finding of contribution.
23. We say no more about that, other than that we give leave to the appellant to lodge within 14 days, marked for my attention, draft amended grounds of appeal as he may be advised.
24. Accordingly we shall allow this matter to proceed to a full hearing limited to the challenge to the findings in paragraph 20 of the Menon tribunal's reasons. For that purpose, the case will be listed for half a day, Category C. There is no requirement for Chairman's Notes of Evidence. There will be exchange of skeleton arguments not less than 14 days before the date fixed for the full appeal hearing. No further directions are required.