United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PETER DOUGHTY (of Counsel) Bournemouth Borough Council Town Hall Bourne Avenue Bournemouth BH2 6DY


 


THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us as a Preliminary Hearing the appeal of Bournemouth Borough Council in the matter Bournemouth Borough Council v Mr R Meredith. The case at the Employment Tribunal was one of unfair dismissal and concerned the use or abuse of force by a teacher against a very disruptive pupil. This morning Mr Doughty has addressed us on behalf of the Appellant Borough Council.
2. On 7 June 2000 Mr Meredith presented an IT1 for unfair dismissal. He had solicitors acting for him. He had been employed as a teacher from 1 September 1990. He had been dismissed for what was described as gross misconduct. He had appealed internally but that was unsuccessful. He described his version of the events that had led to his dismissal and he said that they did not amount to reasonable grounds for a case of gross misconduct and for consequent dismissal. I do not think we need to set out in any detail what the story was.
3. On 24 July 2000 there was an IT3 from the Borough Council. They said that due procedures had been followed. They said that it was a case of gross misconduct. They said that such a case was substantiated and that the decision to dismiss was within the band of reasonable responses.
4. There was a two day hearing at the Employment Tribunal on 26 and 27 February 2001. Both sides were professionally represented. On 22 March the decision was sent to the parties; it was the decision of a Tribunal at London South sitting under the Chairmanship of Mr R D Salter. The decision was:

"It is the unanimous decision of the Tribunal that the Applicant was unfairly dismissed. The tribunal adjourns the application to a further hearing in relation to remedies."

On 27 April 2001 the Borough Council lodged its Notice of Appeal.

5. The case was one of alleged misconduct. Therefore the British Home Stores v Burchell 3-part test was very relevant. It has been held by the Court of Appeal that the Burchell test not only answers what was the reason for dismissal but also answers whether dismissal was an appropriate sanction – see Post Office v Foley [2000] IRLR 827 at paragraph 10. Broadly speaking, if there has been a reasonable investigation by the employer then the Burchell test includes a requirement that the Employment Tribunal is to look at the material the employer had at the time of dismissal and to ask itself, whether, in the light of that material, the dismissal was or was not reasonable. It is therefore important to establish, where there has been a disciplinary investigation and perhaps a disciplinary appeal, just what arguments were raised and what matter was brought out at those disciplinary stages. However, it cannot be the law that if a point is not expressly argued, for or against, at those early stages then it cannot be later relied upon at the Employment Tribunal. There will plainly be cases where, for example, the facts to support the point or to destroy the point could not have been known at the disciplinary stages or before the dismissal. There are also cases where a point is so obvious, let us say as a potential point in the employee's favour, that any reasonable employer would and should have taken it into account unprompted by argument, especially, perhaps, where an employee has had no assistance in putting his case.
6. Such exceptions apart, if an employee has not raised a point throughout the disciplinary stages and if it is a point that he could then have raised, and if it is not so plainly a point that should have been considered in his favour by a reasonable enquiry, even unprompted by the point being specifically mentioned, then it may – and one needs to underline the word 'may' – represent an error of law for the Employment Tribunal to rely upon it in determining the reasonableness of the dismissal. For an Employment Tribunal to do so could represent the classical error of substituting their views, arrived at in the light of the new point, for the views held at the time of the dismissal by the employer at a time when the point had not been taken or the material had not come out. Mr Doughty makes this point in his skeleton argument.
7. A factor that had considerable influence on the Employment Tribunal was the consideration that Mr Meredith did not know, and could not be expected to have known, that what he did amounted to misconduct, let alone, perhaps, gross misconduct. The Tribunal in their paragraph 7(2) said:

"…the employer has to satisfy the disciplinary panel that the Applicant knew or ought reasonably to have known that his conduct was prohibited."

They concluded at paragraph 7(3):

"The Tribunal has taken the following into account in concluding that the panel had no reasonable basis upon which to conclude that the Applicant knew or ought reasonably to have known that what he did amounted to misconduct."

They then set out a number of factors. There are relatively full notes of the disciplinary hearing of 11 February 2000 and of the appeal hearing of 5 April. On each occasion Mr Meredith was represented by someone from his union. It is thus easier than it sometimes is to see what was said at the disciplinary stages.

8. It has to be accepted that this is a case which is likely to generate strong and diverse views and it has already done so between the 3 of us, but it seems on balance to be arguable – and one needs to underline that word and to emphasise that we do not need to say more than that and do not say more than that – that it is arguable that the point was never taken at the disciplinary and appeal stages that Mr Meredith had not known and could not be expected to have known that what he did was misconduct. Thus, for example, at the appeal Mr Darke's summaries at pages 43 and 44 (Mr Darke being the person who conducted on Mr Meredith's behalf the disciplinary appeal) do not seem to include any such point. Nor, given that at the disciplinary hearing on 11 February Mr Meredith's head teacher had said:

"Staff are not authorised … to use force."

was the point one so obvious that it should have been taken into account by an employer even had the union representatives not mentioned it, as it seems they failed to do.

9. The case has divided us but on balance we see that it would be inappropriate to stop it going to a Full Hearing. It does, on balance, as we have said, contain an arguable point of law. Accordingly it is to go forward to a Full Hearing in the full form of the Notice of Appeal as it stands. No part of the Notice of Appeal is denied a Full Hearing. Skeleton arguments are to be exchanged not less than 14 days before the hearing. The matter should, we think, be Category A because it possibly will be relied upon in other cases of a similar kind. It is likely that the full documentation that was before the Employment Tribunal will be needed by the Employment Appeal Tribunal. Between them the Appellants and Respondents should see to it that there is a full collection of the paper that was before the Employment Tribunal so that the Employment Appeal Tribunal can adequately judge what was put in front of the Employment Tribunal. With those observations we simply allow the matter to go to a Full Hearing.