United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P DOUGHTY (of Counsel) Instructed By: Mr P Howard Bournemouth Borough Council Town Hall Bourne Avenue Bournemouth BH2 6DY
For the Respondent	MR D BARNETT (of Counsel) Instructed By: Messrs Reynolds Williams Solicitors 48 Parkstone Road Pool Dorset BH15 2PG


 


MR JUSTICE MAURICE KAY:

1. This is an appeal by Bournemouth Borough Council against a decision of an Employment Tribunal sitting at London South which held that Robert Meredith, a music teacher at Summerbee Comprehensive School, had been unfairly dismissed. That dismissal was communicated in a letter dated 16 February 2000 which followed a hearing of the Disciplinary Panel of Governors five days earlier. The relevant part of the letter states:

"…..the Panel was satisfied that:

(a) the student [a 14 year old girl] was dragged across the classroom and forcibly ejected by you and that your action caused her to suffer injury;

(b) the student had been disruptive both before and during the test that you were conducting and that on at least three occasions during this time she ignored instructions from you to leave the room;

(c) the test in progress during this incident was part of the internal…..process for assessing probable GCSE gradings the exams for which follow later in this academic year;

(d) you initiated the physical contact by initially attempting to make the student stand up from the floor where she was sitting and that you then persisted with this conduct by dragging her across the classroom and through the door. The student did not physically retaliate during the incident;

(e) that as an experienced professional person it was incumbent upon you to keep yourself abreast of the legislation and published guidance on classroom management including that relating to disruptive students;

(f) Summerbee had provided reasonable support on managing students by arranging training which took place on 13 December 1999 and having an organisation structure which provides rapid support to those teachers who find themselves in circumstances where they face disruption.

In conclusion the Panel were satisfied that your action in physically expelling the student when she posed no physical threat to herself, other students or yourself fell outside the guidance given in the Df EE Circular and the advice given on 13 December 1999 training course. The Panel was also concerned that you held the line during the hearing that your actions were appropriate to the circumstances and in accordance with your training and the guidance referred to earlier in this letter.

The Panel decided that your behaviour during this incident constituted gross misconduct and that the appropriate penalty was to recommend dismissal without notice."

Mr. Meredith appealed to the Appeals Committee which met on 5 April 2000 but which dismissed the appeal. Its procedure was in the nature of a review rather than a rehearing. By a letter dated 6 April he was dismissed "with immediate effect on the grounds of gross misconduct".

2. In the extended reasons for its decision that the dismissal was unfair, the Employment Tribunal summarised the relevant statutory provisions (sections 94 and 98 of the Employment Rights Act 1996) and the leading authorities including British Home Stores Ltd v. Burchell [1980] ICR 303 and Iceland Frozen Foods v. Jones [1983] ICR 17. That summary is entirely accurate, as Mr. Doughty on behalf of Bournmouth Borough Council concedes. The Tribunal directed itself in terms to the "band of reasonable responses" test and "the rule against the Tribunal substituting its view for that of the employer".

The conclusions of the Employment Tribunal

3. The Employment Tribunal concluded that the reason for the dismissal was Mr. Meredith's conduct in the form of the physical ejection of the student and the lack of contrition about it, which caused the Disciplinary Panel to infer that there was a risk that he could do the same again. The principal reason was the act of pulling the student from the classroom. It then turned to the question whether the Disciplinary Panel "genuinely believed on reasonable grounds that the act…..amounted to misconduct" It decided that the Panel "had no reasonable basis upon which to conclude that [Mr. Meredith] knew or ought reasonably to have known that what he did amounted to misconduct". What concerned the Tribunal was that, as the contract of employment did not define "misconduct" or "gross misconduct", it was incumbent upon the employer to satisfy the Disciplinary Panel that Mr. Meredith knew or ought reasonably to have known that his conduct was prohibited. It found that there had never been communicated to him an unequivocal requirement that the use of force in the circumstances that had arisen was absolutely forbidden. Any such requirement would have to be a matter of effective local provision because it is not contained in the general law. Section 55A of the Education Act 1996 permits reasonable force to prevent, among other things, disruption. Circular 10/98, issued by DfEE, contains guidelines in this regard but it was not issued to teachers at this school.
4. Pausing there, we observe that the Circular was the subject of detailed consideration by the Disciplinary Panel and the Employment Tribunal. Suffice it for us to record that, for present purposes, it contemplates reasonable force in three broad situations: where action is necessary in self-defence or because there is an imminent risk if injury; where there is a developing risk of injury or significant damage to property; and where a pupil is behaving in a way that is compromising good order and discipline. It gives these two examples of the third category: "a pupil persistently refuses to obey an order to leave a classroom" and "a pupil is behaving in a way that is seriously disrupting a lesson".
5. The Employment Tribunal decided that the Disciplinary Panel should have concluded that Mr. Meredith was not prohibited from using reasonable force in order to restore order in the classroom and that it was wrong to find that he should have made himself aware of the contents of the Circular. It said:

"The Panel concluded that the conduct of [Mr. Meredith] amounted to gross misconduct but it did to by reference to the Circular knowing that [he] had not been shown it. Such a conclusion is not justified unless the conduct is such that on any analysis it represents the use of an unreasonable degree of force (which in this incident it did not) and [he] must have known that it was wrong to do what he did. The Panel did not address the question of whether the force went beyond what was reasonable in the circumstances.

It was not reasonable in these circumstances for the Panel to conclude that [he] was guilty of gross misconduct when, believing that he was entitled to use reasonable force, he removed the disruptive pupil from the classroom after warning her in advance that he intended to end the disruption in the interests of the majority who were sitting an internal examination."

6. The Tribunal then went on to consider the decision to dismiss on the alternative basis that Mr. Meredith was guilty of misconduct, but concluded that the dismissal would still be unfair because it would not fall within the band of reasonable responses. In reaching this conclusion it referred to Mr. Meredith's state of knowledge, the fact that the panel would not have recommended dismissal absent the lack of contrition, the situation as it had arisen in the classroom, the slightness of the injury to the student, the length of service (9years), the quality of his teaching, the absence of any previous incident of this nature, the lack of clear guidance and the lack of any definition of gross misconduct.

The grounds of appeal

7. The first ground of appeal centres upon criticism of the way in which the Employment Tribunal approached Mr. Meredith's state of knowledge about the use of physical force. Mr. Doughty expresses this criticism in a number of ways. He submits that, whereas it is permissible for a Tribunal to consider an employee's state of knowledge when applying the ultimate test of unfairness pursuant to section 98(4), the Tribunal in the present case erred by also considering it at the earlier stage of identifying the reason for the dismissal under section 98(1) and whether it was a potentially fair reason under section 98(2). His contention is that the tribunal in effect inserted an extra stage in the reasoning process stipulated by the statute. He further submits that by its approach to Mr. Meredith's state of knowledge the Tribunal succumbed to the temptation to substitute its own view of the facts for that of the employer and/or that its emphasis on the state of knowledge was perverse. He also criticises the Tribunal on the ground that the state of knowledge had not been an issue before the Disciplinary Panel and ought not therefore to have played such a part in the reasoning of the Tribunal.
8. In our judgment, there is nothing in any of these submissions. At the stage of section 98(1) and (2), the Tribunal was concerned with "the principal reason" for the dismissal, which it found to be related to conduct – in the form of perceived misconduct and gross misconduct at that. Whether or not Mr. Meredith knew that what he did was or might be impermissible was undoubtedly relevant to the investigation and categorisation of his conduct. Just because the statute does not expressly refer to the employee's state of mind at that (or, indeed, at the later) stage, does not mean that a Tribunal erred by considering it. Moreover, neither in its conceptualisation nor in its language did the Tribunal substitute its own view for that of the employer. It clearly directed itself on the duty not to do so. There was no finding by the Tribunal that Mr. Meredith did know that what he did was prohibited. In the absence of such a finding, the Tribunal was entitled to investigate the matter. We are entirely unpersuaded that its conclusion was perverse. In the light of the recent restatement of the approach which the Employment Appeal Tribunal should take to perversity grounds of appeal (see Yeboah v. Crofton CA, 31 May 2002, para. 93, per Mummery LJ), it is simply not possible to characterise the approach and reasoning of the Tribunal as perverse. Nor is it correct to suggest that the issue of Mr. Meredith's state of knowledge had not been an issue before the Disciplinary Panel. Mr. Barnett has referred us to several passages in the documentation to show that Mr. Meredith had raised it, including these words in his statement to the Panel.

"I would never have contemplated trying to physically remove a student if I had believed that I was not permitted to do so."

9. There is a danger of this Appeal Tribunal taking too schematic an approach to a case such as this and that, in our view, is what Mr. Doughty is inviting us to do. It was entirely justifiable for the Employment Tribunal, as part of its assessment of whether the genuine belief of the employer was based on reasonable grounds after a reasonable investigation – the Burchell test – to reach the conclusions it did on the evidence that was before it on the misconduct issue. That is what it was doing and in a manner that was wholly consistent with the statute and the authorities.
10. The second area covered by the grounds of appeal relates to the conclusion of the Employment Tribunal that, if there was misconduct, dismissal was not a sanction falling within the band of reasonable responses. Again, Mr. Doughty puts his case on the basis of substitution and/or perversity. We do not find this ground of appeal to be sustainable. In a lengthy passage, the Tribunal listed numerous factors which had led it to the conclusion that dismissal was not within the band of reasonable responses. It was entitled, indeed obliged, to perform that exercise. It had correctly directed itself as to the law and we find no error in the application of it.
11. This brings us to a third ground of appeal which is to the effect that the evidence of the chair of the Disciplinary Panel and the chair of the Appeal Committee was to the effect that, on any basis, the behaviour of Mr. Meredith had been excessive, even "beyond the pale", and, in these circumstances the Employment Tribunal ought to have deferred to those views. In other words, the substitution submission in another form. It is suggested that, whatever views the Tribunal held about the incident which gave rise to the dismissal, the view of the Disciplinary Panel and the Appeals Committee were properly tenable and the Tribunal erred by overriding them. This submission is no more persuasive in relation to this formulation that it was in respect of the previous one. It all comes down to the "band of reasonable responses" approach which, in our judgment, the tribunal properly applied.

Conclusion

12. It follows from what we have said that we do not find any error of law in the extended reasons of the Employment Tribunal. Indeed, we find them to be careful and compelling. They point to a lesson which employers in this field would do well to learn. It seems that the Head Teacher of this school is against the use of physical force on students. If those responsible for the management of a school wish to impose such a policy on the teaching staff, they should, as a first step, ensure that it is properly communicated to the staff and that it is made clear that any significant departure from the policy will be viewed as a disciplinary and potentially dismissible offence. That was not done in this case. We observe that Circular 10/98 emphasises that teaching staff must clearly understand the options and strategies open to them and must know what is acceptable and what is not. We consider that the criticisms expressed by the Employment Tribunal in this regard were entirely justified. We also observe that, although it played only a minor part in the reasoning of the Employment Tribunal, it is somewhat surprising that the findings of the Disciplinary Panel referred to the student as having posed no physical threat to herself, other students or Mr. Meredith and that the case fell outside the guidance contained in the Circular. "Physical threat" had never been Mr. Meredith's case. To the extent that he was contending that he had acted in accordance with the Circular (even though he had never seen it), he was clearly relying on behaviour which comprises good order and discipline, but that is a matter which the Panel did not refer to.