United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D O'DEMPSEY (of Counsel) Ole Hansen & Partners 153 Kennington Road London SE11 6SF
For the Respondents	MR B BURGHER (of Counsel) Borough Solicitor & Secretary London Borough of Southwark 30-32 Peckham Road London SE5 8UB


 


MR JUSTICE CHARLES: The parties to this appeal are Victoria Sawyerr (the Applicant and Appellant) and (1) The Governors of Heber School, (2) The London Borough of Southwark and (3) Mr G. Mott (the Respondents).

The appeal is against a decision of the Industrial Tribunal sitting at London (South) on 17 October 1997.

The Industrial Tribunal held that Ms Sawyerr's dismissal as a teacher was unfair.

This appeal is directed at the conclusions reached by the Tribunal in paragraphs 54 and 55 of their Extended Reasons. These paragraphs need to be read with paragraphs 53 and 56. Paragraphs 53 to 56 of the Extended Reasons read as follows:

"53. Section 123(1) of the Employment Rights Act 1996 states that:

"The amount of the compensatory award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of this dismissal insofar as that loss is attributable to the actions taken by the employer".

54. The way we look at that loss is dictated by the decision in the famous case of Polkey v Dayton Services Ltd. We must look at the Applicant's conduct up to the time of dismissal and decide whether it is just and equitable that she should have the whole of her loss. We have mentioned that her failure to attend at the removal hearing was unwise. We have further referred to the letters she wrote and the confrontational attitude she took. In our view that is a matter which contributes considerably to her removal by the governor and in recognition of that we would under section 123(1) reduce any award of compensation by fifty per cent.

55. Section 124(4) of the same Act deals with a duty to mitigate loss. We find that the offer of redeployment by the authority was genuine and that whatever Ms Sawyerr felt about the officers of the authority after of her appeal, she had some weeks to reflect upon that and get over her anger. She did not do so. We think there is a good chance that she could have got a job within the authority and that she failed to do so. Of course, no job could be guaranteed but we believe that a further reduction of 25% compensatory order is justified.

56. We have not at this point heard evidence of her efforts to get a job and if that is challenged of course we shall listen to that. We regard the basic award as having already been paid because she received a redundancy payment but it is not our intention to reduce that by 75% and off set the amount given for compensation."

By this appeal Ms Sawyerr challenges these two reductions.

At the outset of this appeal a further point was in issue between the parties. This was whether Ms Sawyerr was precluded from pursuing her appeal against those percentage reductions by reason of the fact that following the announcement of the Tribunal's decision she and Counsel for the Respondents agreed the amount of the compensation to be paid. Having taken instructions over the lunch time adjournment Counsel for the Respondents told us that he was not pursuing this argument further. In our judgment he and the Respondents were correct to abandon this point. In our judgment, having seen the affidavit evidence put in as to this point the amount of compensation to be paid pursuant to the findings of the Industrial Tribunal was agreed having regard to those findings and in reaching an agreement on that basis Ms Sawyerr was not giving up her right to appeal those findings. In the circumstances, in our judgment it was not necessary for Ms Sawyerr to state at the time she made the agreement that she was reserving her right to appeal against the percentage reduction ordered by the Tribunal. After we had raised this point, as we have already mentioned, the Respondents stated that they were not going to pursue the argument that Ms Sawyerr was precluded from pursuing her appeals. We therefore did not hear further argument as to whether the agreement could be valid and enforceable having regard to section 203 of the Employment Rights Act 1996.

The Background

We are grateful to the Tribunal for setting this out in a summary form in their Extended Reasons. One of the schools in Southwark is the Heber Primary School. Ms Sawyerr started to work at that school in 1988 and had a sound reputation as a teacher. In 1995 there were vacancies for a Head Teacher and a Deputy Head Teacher and in early 1995 a Mrs Padmore was appointed Deputy Head then Acting Head. In September 1995 Mrs Padmore was appointed as substantive Head. At the time of the Tribunal she was still the Head but the Tribunal regard it as significant at the time of the incident which brought about this litigation she had only been in post for a few weeks and at that time she had no Deputy Head to assist her.

The event to which the Tribunal so refer took place on 20 and 21 September 1995.

We pause to comment that in our judgment it is important to remember, as is recognised by the Tribunal, that it is this incident which brought about this litigation and thus which gave rise to the events that followed it which culminated in Ms Sawyerr's dismissal from her employment as a teacher at the Heber School.

The background to the events of 20 and 21 September is that all 6th year children take the London Reading Test which is an important test which determines the banding of children in their Secondary Schools. There are four sets of papers one being set each year and they rotate in a random order. Former papers are allowed to be used as a teaching aid. When the papers arrive the teachers are allowed to see them sometime in advance and both Ms Sawyerr and another teacher at the school, a Miss Arinze, saw them. The test was fixed for 25 September.

Ms Sawyerr's case and assertions are as follows:

(a) On 20 September some children from Mrs Arinze's class told her that Mrs Arinze had shown one of the questions to be asked to them and they were not to tell anyone. This was known to them as the question about spiders.

(b) This account was subsequently confirmed by parents of the children concerned in a meeting with the Head Teacher.

(c) Ms Sawyerr tried to tell the Head Teacher about his but she was not available and therefore Ms Sawyerr absented herself from the morning briefing and went with a colleague, Mr Ford, to Mrs Arinze's room and removed the relevant papers from her table, photocopied them and took them to Mrs Padmore.

Ms Sawyerr accused Mrs Arinze of cheating.

Mrs Padmore contacted a School Inspector who was on the premises and investigated the matter by interviewing Mrs Arinze.

Mrs Arinze's case was that:

(a) She denied cheating, and

(b) She said it was quite by chance that she had produced that question on that day.

As we understand it at a later date an Inspector, a Mr Stone, carried out a further investigation. The Tribunal record that they find it surprising that neither the Head Teacher nor Mr Stone questioned the children or even noticed the parents' observations when they accepted Mrs Arinze's account instead of Ms Sawyerr's. They also record that in their view it is significant that the Head Teacher was able to organise questioning of the children about a later matter but did not question the children on this matter.

On we think 21 September (but it may be a different date) Mrs Padmore, the Head Teacher, warned Mrs Arinze informally that if she knew the exam papers she should make sure that the children were not briefed on the questions. Mrs Padmore was, however, more concerned with Ms Sawyerr's act of removing papers from another and more senior teacher's table. Mrs Padmore regarded this as unprofessional and therefore warned Ms Sawyerr about that conduct. This was a first level warning. There is no appeal against it and it is not noted in the teacher's personnel file.

Ms Sawyerr was incensed at this warning and even more incensed that there was no appeal against it. She therefore took out a formal grievance against both Mrs Padmore and Mrs Arinze and in turn Mrs Arinze took out a grievance against Ms Sawyerr. This incident was widely publicised and caused an article in the local press, demonstrations outside the school and a meeting with concerned parents.

As we have already mentioned at this stage Mr Stone investigated the matter. The Tribunal conclude as to that that they were less than satisfied about his inquiry and that they could well understand why Ms Sawyerr was not satisfied at its outcome.

The Tribunal go on to record that upon that experience Ms Sawyerr began to build a conspiracy theory which assumed fatal proportions and led to her loss of employment. The Tribunal concluded that the incidents on 20 and 21 September and its immediate aftermath assumed an importance out of all proportion to what happened. They noted that it had occurred because a new and inexperienced Head Teacher in a difficult school had not been able to contain the protests of a teacher (Ms Sawyerr) with a headstrong nature and had prematurely resorted to a warning. In their view the matter might have been entirely different in a large school with an experienced Head and a Deputy in post.

Ms Sawyerr then pursued her grievance before the Governors. The Tribunal recorded that they appreciated that the purposes of the grievance procedures were to resolve issues and not to try them but stated that nevertheless they had the impression that the Governors did not investigate very thoroughly and could even, at that late stage, have done something more constructive to resolve the obvious differences between Ms Sawyerr and her Head Teacher and to try positively to take the atmosphere of confrontation out of the situation. The Tribunal concluded that in Ms Sawyerr's mind the Governors by finding against her at this stage had joined the conspiracy to remove her.

Like the Tribunal we pause at this stage to take stock. The Tribunal record that by this time (which we understand to be early to mid-November 1995) the relationship between Mrs Padmore and Ms Sawyerr had deteriorated and the cheating allegation had been made public. The Tribunal record that there was clearly an "it's her or me" situation on both sides, the Tribunal record that at this stage Ms Sawyerr and Mrs Padmore had resorted to communicating with each other in writing and that Mrs Padmore wrote no less than 21 letters to Ms Sawyerr, five in one day.

As we have already mentioned the Tribunal recorded that matters might have turned out very differently in a large school with an experienced Head and a Deputy in post. We add that it is clear to us from the Extended Reasons that matters might also have turned out very differently if the initial investigations carried out by Mr Stone and the Governors had been carried out differently.

Returning to the Story.

On 19 November 1995 Ms Sawyerr took her child to the doctor who remarked that Ms Sawyerr was not looking well and advised her to go off sick. The next day Ms Sawyerr returned to school and wrote a letter to the parents of her pupils that she would be off and a planned assembly would not take place. This letter should have been cleared with the Head Teacher, Mrs Padmore, but it was not. That evening Ms Sawyerr telephoned Mrs Padmore and told her that she would be off sick and would send in a certificate. Mrs Padmore said she thought Ms Sawyerr had gone off on what she called "premeditated sickness". On 13 December 1995 Ms Sawyerr returned to work. On that day she accepted that she should have cleared the letter she wrote to parents with the Head Teacher but explained that in her distress she forgot. That afternoon Mrs Padmore wrote to Ms Sawyerr suspending her for disciplinary offences in connection with the letter she wrote to parents.

On 13 December Ms Sawyerr had sent a verbal message via her pupils to their parents that she would be available on 18 December after school to answer any questions and to give any Christmas homework which was wanted. Mrs Padmore discovered this and jumped to the conclusion that the Applicant wanted to meet with parents possibly to further her arguments against Mrs Padmore and the school and Mrs Padmore wrote to Ms Sawyerr alleging additional disciplinary offences, namely:

(1) Arranged a meeting with parents without permission.

(2) In arranging that meeting she had acted in an unprofessional manner.

Thereafter (ie in December 1995 or early January 1996) Mrs Padmore wrote to a Mr Robinson, the local authority's local management for Schools Manager enclosing the papers relating to the misconduct she alleged and a recital of Ms Sawyerr's absences since 1990.

On 8 January a meeting took place between Mrs Padmore and Ms Sawyerr attended by a Val Brown, who is an experienced personnel officer employed by the local authority.

On 9 January 1996 Mrs Padmore charged Ms Sawyerr with the offence relating to the letter to parents written on 20 November 1996 in the circumstances described above but took no further action on the later verbal message to parents given on 13 December 1995.

The Disciplinary Hearing was heard on 29 January 1996 before a panel of Governors advised by Miss Val Brown. She advised them that the disciplinary procedure was for conduct only. The reason she did this was that prior to this hearing Mrs Padmore had also raised the question of Ms Sawyerr's capability as a result of her absences and had said that she would be recommending to the Governors that capability procedures be instituted. The Tribunal found this to be a strange course of action for Mrs Padmore to take.

Ms Sawyerr made a written statement to the panel of Governors who held this disciplinary hearing. Mrs Padmore presented her case to that panel and Ms Sawyerr was present with a representative from her union. The upshot of that hearing was that the panel of Governors imposed a final written warning to stay on Ms Sawyerr's record for 12 months. They explained to the Tribunal that in doing that they were influenced by what had happened in September and the publicity surrounding those events.

As soon as the final written warning was announced Ms Sawyerr's representative asked for the suspension to be removed and Miss Brown advised that this was the proper course. However, the Chair of Governors refused to do this. She considered that the moment Ms Sawyerr returned to the school there would be disruption.

The Tribunal record their surprise at this action and that Miss Val Brown was an experienced professional and rightly took the view that there were no grounds for a further suspension in anticipation of any problems upon Ms Sawyerr's return.

The Tribunal concluded that the Chair of Governors had decided that Ms Sawyerr should never return to the school and was from then on (ie from 29 January 1996) seeking a way to remove her.

The events that followed are recorded in paragraphs 28 to 30 of the Extended Reasons which are in the following terms:

"28. The matter came before the next governor's meeting on 13 February. The chair proposed and it was accepted that the suspension should continue until another meeting when the Chair proposed Ms Sayerr's removal from the school under schedule 3 Clause 8. She had taken advice from Miss Brown and Mr Robinson who advised that conduct could not be a ground because there were no disciplinary matters outstanding. Capability was not possible because it requires monitoring and that could only be done if Ms Sawyerr was allowed back in the school. Therefore, if the Governors were determined that she should go, removal seemed to be the only option for what Tribunals know as some other substantial reason there being a break down in the relationship between the Head Teacher and Ms Sawyerr. The chair therefore proposed her removal in the following terms:

"As the attached schedule identifies there has been on-going series of difficulties in respect of Ms Sawyerr's conduct in the school. These commenced in 1991. This information demonstrates that Ms Sawyerr has been unable to act consistently as a member of the school team. She has demonstrated an inability to receive and follow instructions. This has resulted in a considerable amount of time which has diverted by Ms Sawyerr from her main responsibility as a class room teacher and the senior management from implementing the school development plan. It was to be hoped that the appointment of the new Head Teacher would have resulted in Ms Saywerr taking a more positive attitude to senior management and her role as a member of the team. Unfortunately this has not proved to be the case. Her unwillingness to cooperate with the Head Teacher over key issues affecting the school and her actions which undermine the school and the efforts of other staff recommenced shortly after the new Head Teacher was appointed. It is my understanding that should you agree to this Ms Sawyerr has the right of appeal to a separate panel of the Governing body. If the determination is confirmed Ms Sawyerr's future employment will be the responsibility of the Director of Education.

29. Miss Brown had to devise a procedure for this little used device. She therefore drafted four charges based upon Mrs Alexander's motion. These are as follows:

"1. Refusal to receive and follow instructions from senior management of the school.

2. Whether your actions have caused an unacceptable diversion from your responsibility as a classroom teacher.

3. Whether your actions confirm that you are unable to support the egos and direction of the school and to act as a team member of Heber School staff.

4. Whether your actions may or will have prejudiced the school's ability to deliver effective and efficient education to its pupils."

She also attached a log of correspondence devised by Mr Robinson and referred to in the Chair's motion which attempted to show that Ms Sawyerr's actions had been persistent over a number of years. We have examined that log closely and observed that there were no disciplinary warnings in her six years of employment before September 1995. The incidents mentioned are only monitoring of her sickness procedure and a complaint against her for failing to allow a pupil to swim or eat a piece of cake under the school's rewards and punishment procedure. That complaint was not upheld. This schedule was clearly an attempt to establish something which plainly was wrong, namely that Ms Sawyerr had a history of persistent difficulties. In effect, she had only offended on two occasions in September and November 1995 and this could not be described as persistent. Indeed we doubted whether either incident should have resulted in disciplinary proceedings.

30. The panel met on March 22 and chaired by Mrs Maskery. She was given a set of 102 pages of papers and read them whilst they waited for the Applicant to attend. Ms Sawyerr did not attend having written to say she did not believe that she would get justice. They therefore proceeded in her absence. They heard Mr Robinson present the case for her removal and they read a number of letters written by Ms Sawyerr. They decided that the charges drafted by Miss Brown were proved. They therefore determined by a majority of 4 to 1 upon her removal."

We pause here to comment that on the face of it the finding of the Tribunal is at odds with the conclusion reached by the Governors on 22 March. We say that because the Tribunal make a finding that the schedule referred to in the grounds put forward by the Chair of the Governors for the removal of Ms Sawyerr were found by the Tribunal to represent "an attempt to establish something which plainly was wrong".

This is a startling and serious finding. It demonstrates that if the Governors had considered the schedule properly on 22 March 1996 they could not have found that the matters set out therein established that Ms Sawyerr had a history of persistent difficulties. Also if they had reached the same conclusions as the Tribunal they would have concluded that Ms Sawyerr had only offended on two occasions in September and November 1995 and this could not be described as persistent.

We are therefore unclear as to the reasons which led the panel of Governors on 22 March 1996 to conclude, as is recorded in paragraph 30 of the Extended Reasons, that the charges drafted by Miss Brown were proved. Those charges are in paragraph 29 of the Extended Reasons.

The Tribunal in their Extended Reasons go on to say as follows:

"31. Attention should be drawn to the actions of the Applicant. The letters she wrote were aggressive and at times abusive. She made it perfectly clear that she regarded Miss Arinze as a cheat and Mrs Padmore as a liar. It was clear that anybody who disagreed with these views was branded a conspirator. It was unwise of Ms Sawyerr not to attend that meeting.

32. The situation is desperately unsatisfactory. On the one hand we consider the evidence before the panel could not possibly support the view that Ms Sawyerr had misconducted herself at school to such a degree as to warrant dismissal. However, it was clear from her letters that she would not be prepared to accept the authority of Mrs Padmore and reserved the right to negotiate every instruction. In those circumstances it could be argued that removal was inevitable."

These are important findings. However it is to be noted that they do not include a finding as to the effect that the letters that Ms Sawyerr had written by 22 March 1996 had on the panel of Governors who met on that day and decided that she should be dismissed.

The Extended Reasons then go on as follows:

"33. We should now pause to gather together the different views of the parties concerned. Mrs Padmore clearly considered that her authority in the school was being deliberately undermine by the Applicant. The Chair of Governors supported Mrs Padmore and had earlier determined that the Applicant should never return to school.

34. The professionals, Miss Brown and Mr Stone, clearly thought that the incidents could and should have been contained within the school and that a competent and experienced Head in a well run school would have been able to handle the original argument between two teachers without resorting to disciplinary warnings at all let alone the involvement of inspectors and advisers. They recognised however that Heber was a difficult school but still considered that with their help the situation could be contained. However, the Governors run the school and if they were determined to remove the Applicant then their will must prevail.

35. The Applicant's view was that this was a gross injustice and she embarked upon a course of letter writing which meant that her situation could not be retrieved."

We agree that this represents a desperately unsatisfactory situation.

Ms Sawyerr appealed to another panel of Governors. This appeal was heard on 17 May 1996. The Tribunal record that there are detailed minutes of that appeal and therefore they do not dwell on them in their Extended Reasons but they do say this:

"36. ... Suffice it to say that she presented her case with passion and dignity. The Governors seem to have put the incidents at school in the past and concentrated their questions upon whether she would be able to accept the Head Teacher's authority if she returned to the school. The Applicant said that she would accept any instruction which was not immoral but would reserve the right to discuss that instruction first. The Governors rejected her appeal by a majority of 3 to 2. The Chair voted in favour of Ms Sawyerr."

This finding of the Tribunal seems to point to a difference in approach between the panel who heard the appeal and the panel who had decided to dismiss Ms Sawyerr on 22 March in that they did not concentrate on the charges drafted by Miss Brown or the schedule that was put before that panel of Governors. In our judgment it is also to be noted that the Tribunal's finding is not that Ms Sawyerr would refuse to accept any instruction given by the Head Teacher.

A problem identified by the Tribunal in respect of this appeal hearing is that they record that the Governors told them that officers of the local authority had told them that the local authority would take responsibility for finding another job for Ms Sawyerr and it appears that some of the Governors would not have voted for a removal if they had understood that unemployment for Ms Sawyerr was a possibility. As paragraph 38 of the Extended Reasons the Tribunal say this:

"38. What did the Governors think they were doing? Had they been mislead by the officers or had they grasped at the most comforting words they heard? Had the local authority been going beyond it statutory responsibility procured the dismissal? We will never know. We find it difficult to blame Southwark for trying to find an able teacher another job and when that was not possible, largely due to the Applicant's attitude, they paid her redundancy money. It was clear that the words of the act were in front of the Governors when they made their decision, but in asking the questions they did, they appeared to want to overt their eyes of the serious nature of the decision they were taking and we suspect that they sought to comfort themselves and thus avoiding what had been recommended by the officers, namely, taking the Applicant back under supervision."

Following the decision of the Appeal Panel the Tribunal record as follows:

"40. Ms Sawyerr's wrath knew no bounds. She wrote abusive letters to the officers of the local authority and declined to take any part in efforts to redeploy her. She declined to attend the first meeting with Mr Stone. She attended the second meeting but refused to co-operate with him in listing her experience so that he could match her to a vacancy. She maintained that under local management of schools only the Governors could employ and she was not going to take part in any underhand arrangement. Even in those situations where the local authority could appoint she said it was unfair to put her ahead of other candidates. The whole matter was unprincipled and she would have no part in it.

41. She therefore left the authority's employment with a statutory redundancy payment on 31 August 1996 and has been unemployed since."

In their Extended Reasons under the heading "Our Decision" the Tribunal state as follows:

"46. The situation was fated from the beginning. Mrs Padmore three weeks into her substantive headship was faced with an argument between two teachers which an experienced Head would have dealt with without recourse to warnings. Having issues the warning and the issue having attracted such wide spread publicity every event thereafter became a challenge to her authority. Ms Sawyerr having made a public issue of it could not let go. There was in that small school nobody who could or would mediate. As matters escalated the Governors and the local education authority were drawn in. The Governors having so recently appointed the Head Teacher in a market which was short of suitable candidates felt they had to stand by her and the authority was paid by the school to give the management advice and not to mediate. So each party was on a collision course from which neither was prepared to deviate. The Governors pounced upon the local education authority's officer to redeploy in order to pretend that they were not dismissing a long-serving and popular teacher. Ms Sawyerr believed (with no justification) that there was a conspiracy against her for exposing cheating and it became a crusade for which she was willing to lose her career, probably needlessly.

47. We have to fit these events into the framework of employment law. We have to take a snapshot of the employer's mind at the time they dismissed and ask:

(a) What was the reason for the dismissal?

(b) Was it fair?

48. Their reasoning went through a number of stages. The suspension was for conduct. Capability was added but failed because the Governors would not have Ms Saywerr back from monitoring. Redundancy finally ended her employment and some other substantial reason was pleaded before us. This looks like a dreadful mess but after ten days of evidence we can see how it came about. The vital question is, what was in the mind of Mrs Masc... and her colleagues in March and the Reverend Gray and his colleagues in May?

49. We have concluded that whatever happened at the school was not the decisive reason for the dismissal. Dismissal for those acts could not be within the bands of reasonable response.

50. What was uppermost in the governor's mind particularly in the appeal was the fact that Ms Sawyer had steadfastly refused to acknowledge the authority of the Head Teacher without negotiation of any instruction and in those circumstances could not remain at school. The reason therefore was some other substantial reason and we find that this was the reason given at the time and the reason as pleaded. It was become of a clash of personalities which made it impossible for the Applicant to remain at the school. It was therefore a potentially fair reason."

We would respectfully agree that what happened in this case was a dreadful mess. We also comment that it is apparent from the Extended Reasons that the Tribunal were faced with a difficult fact-finding task and what they have done is to accept that the starting point for the problems and thus what they describe as a situation that was fated from the beginning, were the events that took place on 20 and 21 September which they have found would have been handled by an experienced Head Teacher without recourse to warnings. As appears from paragraph 50 of the Extended Reasons in identifying the reason for the dismissal the Tribunal have particular regard to what was uppermost in the Governors' minds, particularly during the appeal hearing in May. We confess that we are unclear from the Extended Reasons how the finding in paragraph 50 relates to the panel hearing on 22 March 1996 when one reads paragraph 50 with paragraphs 28 to 32 of the Extended Reasons. Given the basis of the 50 per cent reduction in compensation set out in paragraph 54 of the Extended Reasons this lack of clarity is important because it demonstrates that there is no clear finding of the link between the letters that were written by Ms Sawyerr before the hearing on 22 March and the decision taken on that date to dismiss her.

As to unfairness the Tribunal refer to the case of Turner v Vestrick Ltd and say this:

"51. ... The judgment in Turner v Vestrick Ltd states that: the employer if there is a breakdown has got to try to do something about it. There must be some sensible practicable and genuine effort to see whether an improvement can be perfected. That was precisely what Miss Brown was advising when she said the end of the disciplinary procedures in January that a return to the school could be effected. She had arranged for support from the local education authority for that but the chair of Governors turned that down and then proceeded towards removal. That seems to us not to be reasonable. Rejection of that advice and the determination to remove influenced by publicity rather than the merits of the case of what happened at the school could not be fair. The Respondent could have done much more to improve that situation. We therefore find the dismissal unfair."

The First Head of the Appeal

This relates to paragraph 54 of the Extended Reasons which is set out above.

In that paragraph the Tribunal remind themselves of the famous case of Polkey v Dayton Services Ltd. However, like the Tribunal that dealt with the Preliminary Hearing on this appeal, we find it difficult to see what the relevance of that case is.

Any application of the Polkey case would involve a consideration of a hypothetical situation based upon the question, "What would have happened if the Respondents had behaved reasonably?". It is not apparent that the Tribunal carried out any such hypothetical assessment.

It is to be noted that in their determination of the question, "Whether the dismissal was unfair?" they go back to the rejection of advice given on 19 January 1996 by Miss Brown to the effect that the suspension of Ms Sawyerr should not be continued.

Ms Sawyerr made a reasonably short statement for the purposes of the disciplinary hearing on 29 January 1996 and the letters that are referred to were all written after that date.

It follows that the Tribunal could not have been asking themselves the hypothetical question, "What would have happened if the employers had behaved reasonably from (a) 29 January 1996 or (b) the time of the incident which they find brought about the events which led to Ms Sawyerr's dismissal (namely 20 September 1995). This is because they have regard to what actually happened after those dates.

In our judgment if, (which we think unlikely) the Tribunal asked itself the hypothetical question, "What would have happened if the employers had behaved reasonably from 22 March" the Tribunal would have asked itself the wrong question.

It was argued on behalf of the Respondents that a fair and common-sense reading of the Extended Reasons demonstrates that in deciding to make the 50 per cent reduction set out in paragraph 54 of the Extended Reasons, the Tribunal had in mind and were considering the case under section 123 (6) of the Act. It was pointed out that paragraph 55 contains a typing error in that it refers to section 124 (4) as opposed to section 123 (4) of the Act and therefore it is possible that paragraph 54 also contains a typing error and should therefore refer to section 123 (6) of the Act. We acknowledge that there is a typing error in paragraph 55. We also note that there are a number of typing and transcription errors in the Extended Reasons. However, we do not accept that it would be fair to read paragraph 54 as containing a reference to section 123 (6) of the Act because paragraph 53 contains a citation of section 123 (1) of the Act and the Polkey case is generally referred to in the context of section 123 (1).

That is not an end of the matter because a fair and common-sense reading of Extended Reasons of a Tribunal may demonstrate that they have had in mind a particular section and the appropriate approach thereunder, although they do not spell this out. Having regard to this we were urged by the Respondent to conclude that in having regard to what actually happened and thus what did or could have influenced the decision-making process of the employers, the Tribunal in fact had section 123 (6) in mind and approached the application of that subsection in the correct manner.

Section 123 (6) provides as follows:

"(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

Although in paragraph 54 of the Extended Reasons the Tribunal say that matters that they identify "contribute considerably to her removal by the Governors" we do not accept that a fair reading of the Extended Reasons demonstrates that the Tribunal had section 123 (6) in mind. Further, if we are wrong about that we have concluded that a fair reading of the Extended Reasons does not indicate, or does not indicate clearly enough, that the Tribunal applied the correct approach to the application of section 123 (6).

It was correctly common ground before us that in considering section 123 (6) the Tribunal was concerned with what actually happened. Further, and again correctly, it was common ground before us that in considering whether or not to make a reduction to the compensatory award pursuant to section 123 (6) the Tribunal must consider whether the relevant conduct was (a) culpable or blameworthy, (b) caused or contributed to the dismissal and (c) justified a just and equitable reduction of the award (see Nelson v BBC (No.2) [1979] IRLR 346), in particular at paragraphs 43 and 44 of the judgment where it is said:

"I agree with the conclusion there reached that, on a proper interpretation of para.19(3), an award of compensation to a successful complainant can only be reduced on the ground that he contributed to his dismissal by his own conduct if the conduct on his part relied on for this purpose was culpable or blameworthy. This conclusion can be arrived at in various ways. First, it can be said that the epithet 'culpable' or 'blameworthy' should be implied before the word 'action'. Or, secondly, it can be said, that the expression 'caused or contributed' impliedly incorporates the concept of culpability or blameworthiness. Or, thirdly, it can be said that, in any case, it could never be just or equitable to reduce a successful complainant's compensation unless the conduct on his part relied on as contributory was culpable or blameworthy. For my part, I prefer the third way of arriving at the conclusion to either the first or the second, and would approach the application of paragraph 19 (3) on that basis.

It is necessary, however, to consider what is included in the concept of culpability or blameworthiness in this connection. The concept does not, in my view, necessarily involve any conduct of the complainant amounting to a breach of contract or a tort. It includes, no doubt, conduct of that kind. But it also includes conduct which, while not amounting to a breach of contract or a tort, is nevertheless perverse or foolish, or, if I may use the colloquialism, bloody-minded. It may also include action which, though not meriting any of those more pejorative epithets, is nevertheless unreasonable in all the circumstances. I should not, however, go as far as to say that all unreasonable conduct is necessarily culpable or blameworthy; it must depend on the degree of unreasonableness involved."

In our judgment this passage from the Nelson case indicates that the relevant conduct must be looked at and considered in all the relevant circumstances. It follows, in our judgment, that in this case the relevant conduct falls to be considered having regard to the whole history, and in particular the history beginning with the events on 20 and 21 September 1995.

In our judgment a fair and common-sense reading of the Extended Reasons either shows that the Tribunal did not take this approach, or does not demonstrate sufficiently clearly that this was the approach taken by the Tribunal. In our judgment such a reading of the Extended Reasons shows that the Tribunal concentrated on the later part of the history and in particular the period leading up to the appeal hearing in May 1996. If we are wrong as to this in our judgment the Extended Reasons do not show with appropriate clarity that the Tribunal did not concentrate on the later parts of the history.

Having said this we would like to record that we appreciate the difficulties that the Tribunal were under. These in large measure flowed from the need for the Tribunal to identify the primary reason for the dismissal having regard to the muddle and mess which had occurred and which the Tribunal identify. It seems to us, that having identified an approach adopted by the appeal panel and thus a reason, or perhaps the primary approach ultimately taken, the Tribunal erred, or may have erred in concentrating on the position leading up to the appeal hearing or in considering the position in March on the basis that the approach of the Governors was, or was effectively, the same at that time. As we have already said it is not clear from paragraphs 28 to 32 of the Extended Reasons what the approach and thought process of the Governors was in March and, in particular in the context, what attention they paid to the letters that had been written by Ms Sawyerr by that time.

In considering this part of the appeal we have, amongst other things, posed ourselves the following question, namely:

Why was Ms Sawyerr's conduct in not attending the panel hearing in March 1996 or in writing letters after 29 January 1996 (a) causative, (b) culpable or blameworthy or (c) something that would found a conclusion that it was just and equitable to reduce her compensatory award by 50 per cent, or any amount, having regard to:

(i) The conclusions of the Tribunal that the incident on 20 and 21 September was badly handled or would have been better handled by a more experienced Head Teacher,

(ii) The finding by the Tribunal that they could understand why Ms Sawyerr was dissatisfied with the investigation carried out by Mr Stone into that incident,

(iii) The finding of the Tribunal that the Governors did not investigate the position very thoroughly and could in November 1995 have done something more constructive.

(iv) The finding of the Tribunal that by mid-November there was clearly an "it's her or me" situation at the school between Mrs Padmore and Ms Sawyerr.

(v) The finding of the Tribunal that on 29 January the Chair of Governors had decided that Ms Sawyerr should never return to the school and was from then on seeking a way to remove her; and

(vi) The finding of the Tribunal that the schedule referred to in paragraph 29 of the Extended Reasons which, as we understand it, was intended to support the allegations or charges being made against Ms Sawyerr at that time was something which was plainly wrong and Ms Sawyerr did not have a history of persistent difficulties at school.

We have not found the answers to the matters raised in that question from our reading of the Extended Reasons.

In our judgment these are matters which need to be considered on a proper application of section 123 (6).

The Second Head of Appeal

This relates to paragraphs 55 and 56 of the Extended Reasons and the further reduction of 25 per cent to the compensatory award that was made by reference to section 123 (4) of the Act which is in the following terms:

"(4) In ascertaining the loss sustained to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland."

It was pointed out in Simrad v Scott [1997] IRLR 147, in particular at 149 paragraph 6:

"That the issue of mitigation falls to be considered in determining what compensation is just and equitable."

Section 123 (4) introduces the common-law approach. The approach to be taken is explained for example in Gardiner-Hill v Rowland Berger Technics Ltd [1982] IRLR 498 where at paragraph 12 of the judgment of this Tribunal it is stated:

"Moreover, although it is not necessary for us to go into it in great detail, it is well-established that it is inappropriate in dealing with failure to mitigate damages to reduce the amount of the compensation by a percentage. In order to show a failure to mitigate, it has to be shown that if a particular step had been taken, Mr Gardiner-Hill would, after a particular time, on balance of probabilities have gained employment; from then onwards the loss flowing from the unfair dismissal would have been extinguished or reduced by his income from that other source. In fixing the amount to be deducted for failure to mitigate, it is necessary for the Tribunal to identify what steps should have been taken; the date on which that step would have produced an alternative income and, thereafter, to reduce the amount of compensation by the amount of the alternative income which would have been earned. Since that is the principle of mitigation, a reduction of a percentage of the total sum representing compensation for the whole period is inappropriate. Therefore, in our view, the Industrial Tribunal erred in the basis on which they have approached the compensation in this case."

Further in Peara v Enderlin Ltd [1979] ICR 804, at 807 H it is said as follows:

"... We think Mr Lea is right and that the industrial tribunal should not have reduced the whole of the compensatory award by 40 per cent in order to determine the loss but should have found when it was that the employee should have found work and thus assess his loss up to that date."

Counsel on behalf of the Respondents sought to distinguish these two cases. We accept that there are some distinctions of fact but in our judgment the principle identified in them, namely that a Tribunal should not quantify a reduction due to failure to mitigate simply by taking a percentage of the compensatory award applies to this case.

Having regard to the relevant principles relating to the duty to mitigate, in our judgment the Tribunal applied an incorrect (or at least an incomplete) approach and test to the determination of whether the compensatory award should be reduced by reason of a failure of Ms Sawyerr to mitigate. Our view as to this is reinforced by the first sentence of paragraph 57 of the Extended Reasons.

Under this heading Counsel for Ms Sawyerr advanced a further argument based on Lock v Connell Estate Agents [1994]ICR 983 and a passage therein at page 990 D in the following terms:

"There is a fatal difficulty about that submission, as it seems to us, in that the duty to mitigate does not arise until the cause of action - in this case the unfair dismissal - is complete. ..."

It was argued that this passage meant that a refusal of Ms Sawyerr to accept redeployment or the possibility of redeployment or a job prior to the end of August 1996, when her employment at Heber School was ended, was irrelevant. In our judgment this is not correct. The passage relied on in the Lock case was dealing with a different point. In any event, in our judgment, a consideration of a refusal to accept an offer of employment that would start at, or after, a dismissal is relevant in the determination of the issue whether or not the employee complied with his or her duty to mitigate loss and this is so whether or not that refusal took place before or after the dismissal. In either event the relevance is that if that offer had been accepted and the potential employer had performed its part of the bargain the employee would have been in employment at or sometime after the relevant dismissal. Of course it may be found that a refusal to accept such an offer was not a breach of the duty to mitigate but that does not mean, as was submitted to us, that the offer and its refusal is irrelevant to the issue of mitigation.

Overall Conclusion

In our judgment all issues relating to compensation should be remitted to a new Tribunal.