United Kingdom Employment Appeal Tribunal

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Cite as: [2007] UKEAT 438_6_1303, [2007] UKEAT 0438_06_1303

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		BAILII case number: [2007] UKEAT 0438_06_1303
		Appeal No. UKEAT/0438/06

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 December 2006
	Judgment delivered on 13 March 2007

Before

HIS HONOUR JUDGE SEROTA QC
MS J L P DRAKE CBE
MR T HAYWOOD

MR J R WHITEHEAD APPELLANT

1) THE GOVERNING BODY OF CORLEY SCHOOL
2) COVENTRY CITY COUNCIL RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR P GREEN (of Counsel) (Appearing under the Direct Public Access scheme)
For the Respondents	MS L FINDLAY (of Counsel) Instructed by: Coventry City Council Legal Services Casseldon House Greyfriars Lane Coventry CV1 2GX

SUMMARY

Contract of Employment – Wrongful dismissal

Unfair Dismissal – Reasonableness; Contributory fault

It is essential that Employment Tribunals have clearly in mind the distinction between issues of fairness of dismissal and issues as to contribution by a Claimant which might serve to reduce compensation under s123(6) of the Employment Rights Act. A finding that dismissal was to any extent caused or contributed to by conduct of the Claimant, if compensation is to be reduced under s123(6), requires the Employment Tribunal to make findings of fact as to the conduct in question, which must be blameworthy conduct known to those responsible for his dismissal. Decision of Employment Tribunal reversed when it confused its roles in determining the fairness of dismissal and whether the Claimant had contributed to it.

The EAT refused to vary the decision of the Employment Tribunal that the Claimant had been unfairly dismissed and dismissed in breach of contract. Paragraph 17.1 of the School (Staffing) England Regulations 2003 does not require School Governors to notify the Local Education Authority of a decision to dismiss a teacher whose contract provided that notification should only be given after determination of an appeal, until after the appeal has been determined. Notification prior to the determination of the appeal is in breach of contract.

HIS HONOUR JUDGE SEROTA QC

Introduction and factual background

This is an appeal from the decision of an Employment Tribunal at Birmingham dated 21 June 2006 (Ms P Hughes, Chairman) which decided that the Claimant had been unfairly dismissed, but that he had contributed to his dismissal and the extent of that contribution was 50%. The Employment Tribunal also determined that the second Respondent was in breach of contract by dismissing the Claimant after his disciplinary hearing, rather than after his appeal hearing.

Elias J (President) referred the appeal to a full hearing on 7 August 2006 and HHJ Ansell referred the Respondents' cross-appeal for a full hearing on 12 September 2006.

We now turn to deal with the factual background to these proceedings, which we take from the decision of the Employment Tribunal.

The Claimant is a teacher with an unblemished record over many years. He has been involved in special education since 1998. He has been employed at Corley School since January 2002. The second Respondent is the Local Education Authority. The first Respondent is the Claimant's employer.

It is convenient to refer at this point in our judgment to the contract of employment. Clause 14 defines "gross misconduct" and provides as follows:

"14. Some types of misconduct may be so serious that they are deemed to go to the 'root of an employment contract' and may justify summary dismissal, that is dismissal without notice being given and without any prior warnings being issued. Such misconduct is termed Gross Misconduct and is generally held to include such actions as the following:

Fighting

Breach of major safety rules

Theft

Serious misuse of equipment/vehicles and damage to premises/buildings

Sexual Offences"

Clause 15 makes clear that the list was "by no means exhaustive of potential gross misconduct offences and to it could be added other actions, such as serious cases of racial or sexual harassment."

Clause 25 provides:

"25. In the event that a Gross Misconduct offence has been alleged, then the employee concerned should be suspended pending an investigation of the case and/or the arrangement of a formal disciplinary hearing. Such suspension will be on full contractual pay…"

We need not refer specifically to the provisions of the contract which refer to the establishment of a governors' sub-committee to act as a disciplinary panel or tribunal.

Clause 41 of the contract is of importance:

"41. If the decision of the Governors Sub-Committee is that the employee is to be dismissed, then the appeal process must be completed (i.e. the employee appeals and the appeal panel uphold the decision of the sub-committee or the employee does not appeal or fails to do so within the time limits prescribed at Appendix C) before the Local Education Authority is requested to terminate the contract of the employee."

This is provision for an appeal against the decision of the disciplinary panel to an appeal panel of at least three governors not previously involved in the process; see paragraph 42.

Paragraph 43 is in the following terms:

"43. If a decision to dismiss is upheld by the Appeals Sub-Committee, or if there has been no appeal by the employee against a decision to dismiss by the expiry of the time limits set to do so, the Local Education Authority should be notified in writing and is required to terminate the employee's contract within 14 days of receiving such written notification.

In the case of a Gross Misconduct offence, the employee will remain suspended on full pay until the termination letter is issued by the Local Authority, at which point his contract will end summarily (i.e. immediately without any notice being given or paid)."

Corley School provides for pupils with moderate learning difficulties, including autism and those who display challenging behaviour.

A physical restraint system was in use at the School, known as SCIP (Strategies for Crisis Intervention and Prevention). The Claimant had not received training in this system, although he had asked for such training on several occasions. He had asked for, but had not been provided with, a mobile telephone on several occasions. He wished to have a mobile telephone to enable him to call assistance should circumstances demand, because his classroom was somewhat isolated.

The incident giving rise to these proceedings is described by the Employment Tribunal as follows:

"There was some disruptive behaviour in a lesson that Mr Whitehead was teaching and two boys left the classroom. A third boy attempted leave the classroom and Mr Whitehead attempted to dissuade him from doing so and the boy's finger was trapped in the door of the classroom causing serious injury to him. Mr Whitehead was in the vicinity of the door at the time and was not able to explain how the injury was caused."

The Employment Tribunal return to these facts in rather greater detail later in their decision:

10.11 On 12 September 2005 the claimant was scheduled to teach a Design & Technology class in his classroom, which was a workshop. He had a teaching assistant, Mrs Lyons.

10.12 The practice at the school was that teaching assistants would supervise in the playground during break times. They would take a 10 or 15 minute coffee break during the next lesson, if the teacher in charge agreed to the assistant leaving the lesson. The claimant has criticised this custom and practice as placing the teacher in a situation where they had no classroom support. In our view this criticism was not warranted because the teacher concerned could decide whether or not to release the classroom assistant for a break, and would not do so if they considered that it was necessary for the assistant to remain.

10.13 The claimant was informed by Mrs Lyons that the class was somewhat excitable and after some discussion with her he agreed that she should take a break. When the lesson commenced the claimant noticed that there was a problem with a pupil called JS, who was being picked on by other members of the class. In an attempt to defuse the situation the claimant sent JS to the office on an errand. The claimant's evidence was that when JS returned the class once again displayed hostile behaviour towards him, and a pupil called CA was threatening and goading him. JS became upset and ran out of the classroom. On exiting the classroom he ran down the corridor and left the building through a door into the playground. This door cannot be opened from the outside, so it is not possible for a pupil to get back into the school via that door unless someone opens it for them.

10.14 The claimant's evidence was that after JS left the room, the class settled down. JS then reappeared at the back window of the classroom and started to bang on the window. This caused CA to become agitated and to run from the classroom. The claimant's account was that he believed that CA, who had a history of being physically violent towards others, had left the classroom in order to physically attack JS, and that CA had followed JS outside the building (he later came to believe that CA had not gone outside). At that point the claimant took no action to prevent CA from leaving or to address what, on his own account, he perceived to be a developing situation involving CA and JS. The claimant says that this was because there was so little time between JS and CA leaving the classroom and the next event which took place that he was unable to take any action. The respondents' position was that prior to JS leaving the classroom and also prior to CA leaving the classroom, the claimant had opportunities to take preventative action such that the situation did not develop the way that it did. We accept that it was more likely than not that action could have been taken earlier by the claimant to prevent the situation from escalating.

10.15 Shortly after CA left the classroom a third pupil, AF, stood up and also ran towards the door. The claimant's account was that when this took place he decided that it was more likely than not that AF was going outside to assist CA in attacking JS and consequently he decided to physically interpose himself between AF and the doorway to dissuade him from leaving the room. He also told the tribunal that if AF had got past him, he would have allowed AF to leave the room and then taken action to deal with the situation. It was clear from the claimant's evidence to the disciplinary panel and his evidence to the tribunal that he accepted that the situation was not one of imminent danger and did not warrant the use of any physical force to restrain AF in order to prevent him from leaving the room. Consequently the fact that he had not received SCIP training was not relevant because the situation was not one which the claimant believed warranted the use of physical restraint.

10.16 Events unfolded very quickly. The claimant was not able to recall whether he or AF reached the doorway first, but it appears that AF and the claimant were both next to the door when AF tried to open it. The door closed, trapping AF's finger and causing the finger to break, which was a serious injury requiring hospital treatment. The claimant was unable to explain why the injury was caused to AF. The respondent later concluded that the claimant had taken some form of physical action to try to prevent AF from leaving the room, and this had resulted in injury to AF."

We observe at this point that the Employment Tribunal in paragraph 10.14 had accepted that it was more likely than not that action could have been taken earlier by the Claimant to prevent the situation from escalating, but the Employment Tribunal does not say what that action was.

We feel bound to share the observation of the Employment Tribunal that a relatively short incident has given rise to volumes of paper. We note with some dismay how allegations of bias and tampering with evidence have raised the temperature and possibly deflected the attention of the Respondents during the disciplinary proceedings away from the issues that they needed to consider.

Corley School has a policy whereby physical restraint of a pupil is only acceptable if there is imminent danger of a pupil harming himself or another.

This was not the first occasion when there had been concern about a possible assault by the Claimant against a pupil; on 27 March 2002 an allegation of assault had been made against the Claimant which was investigated by the headmaster, Mr Nason. On that occasion, the Claimant had been suspended. Mr Nason investigated the allegations and concluded there was no case for the Claimant to answer. His suspension was lifted. Although the Respondents' disciplinary procedure required that no record be kept of an allegation if determined to be unfounded, Mr Nason wrongly retained that information on file. Mr Nason advised the Claimant to avoid using any form of physical intervention in relation to the management of pupil behaviour. However, relations broke down between the Claimant and Mr Nason and the Claimant had informed Mr Nason that he would be leaving the school.

The Claimant's initial explanation, set out in the incident form he completed, was that AF had been in such a rush to open the door that he had trapped his own finger. This did not satisfy Mr Nason who advised the Claimant to think about the explanation and seek advice from his Trade Union representative. The following day the Claimant's representative sent a fax to Mr Nason with the Claimant's considered account of the incident. The Claimant said that he and AF had both been heading for the doorway; he could not be sure who had arrived first but he had not touched the door, or AF, and the door had bounced off his foot and closed. This had caused the injury to AF. When the Claimant gave evidence before the Employment Tribunal he said that at the time he was not in a position to give an explanation but felt compelled to do so. The Employment Tribunal found it was reasonable that he was asked for an explanation and it was reasonable that Mr Nason was not satisfied with the explanation. Nonetheless, the Employment Tribunal made the following finding at paragraph 10.19:

"10.19 …In the circumstances we concluded that the claimant and AF were both rushing towards the door when the injury occurred, and that the injury should not have occurred if the claimant had simply interposed himself between AF and the doorway."

The Claimant was suspended; there was a police investigation and an investigation by Mr Nason. The Employment Tribunal was satisfied that Mr Nason had no choice but to suspend the Claimant and to investigate, and that he was correct to delay his investigation until after the conclusion of the police investigation. The Employment Tribunal also rejected the suggestion that Mr Nason's approach to the investigation was biased.

There was some initial misunderstanding as to the extent of interviews carried out by the police, which led to a suggestion being made on the part of the Claimant that the Respondent had withheld evidence. The Employment Tribunal rejected this suggestion.

The police had taken statements by way of video interviews with three pupils. There were concerns expressed by the Claimant about these statements which were taken several weeks after the event from pupils suffering from autism. Nonetheless, the Employment Tribunal considered it was reasonable for Mr Nason and the disciplinary panel to have regard to these statements. Transcripts of the interviews were prepared from handwritten notes and regrettably, a few sentences were omitted in the typing. This led to a suggestion being made that Mr Nason had doctored material supplied to the Claimant. This allegation was rejected by the Employment Tribunal.

During the course of the police investigation a second allegation was made against the Claimant by a Mrs Hewitt. This was again investigated by Mr Nason and the Employment Tribunal considered it proper for Mr Nason to carry out his investigations as he did.

The first investigatory meeting took place on 2 April 2003. The Claimant gave an account of the incident to the effect that he was slightly closer to the door than AF and that he touched neither the pupil nor the door, nor had he caused it to close on AF's hand. He also suggested it was possible that another pupil, CA, might have been outside the classroom door in the corridor and been involved in closing the door on AF's hand.

The second investigatory meeting took place on 13 May 2003. The Minutes of the meeting were not signed off by the Claimant until November 2003. The Employment Tribunal was critical of the delay and rejected the suggestion that it was solely attributable to the Claimant. The Employment Tribunal considered it was for the Respondent to expedite the process and that it was clearly undesirable for lengthy delays to take place in relation to investigating serious allegations such as those made against the Claimant.

The Employment Tribunal noted that during the investigatory interviews Mr Nason had failed to invite the Claimant to identify people who should be interviewed and thus failed to follow the guidance contained in Government Circular 10/95 "Protecting children from abuse; the role of the education service".

Mr Nason did not re-interview the three boys and the Employment Tribunal accepted there was no need for him to have done so. Apart from his failure to ask the Claimant to identify persons to be interviewed, the Employment Tribunal considered Mr Nason's investigation was thorough. However, it was critical of Mr Nason for including a statement he had made to the police in the bundle for the disciplinary hearing. The statement was concerned with previous incidents involving the Claimant and pupils including, in particular, a reference to the previous allegation against the Claimant which should have been removed from the file and to which we have already referred.

The Employment Tribunal considered that the inclusion of this statement was prejudicial and it was placed before the disciplinary panel in order to influence its decision-making process. The Employment Tribunal was also highly critical of the fact that the disciplinary hearing was convened for 20 April 2004, some 18 months after the incident giving rise to the proceedings. The Employment Tribunal concluded that the Respondent "was largely responsible for the delay."

The Employment Tribunal went on to reject a criticism by the Claimant that the second Respondent had advised both the Governors and the head teacher. It also accepted that when the disciplinary hearing had to be reconvened because one Governor (who had fallen asleep) was disqualified, that it was reasonable for the other Governor to sit on the reconstituted panel.

The Employment Tribunal agreed with Mr Nason's assessment that the Claimant did not need to use physical restraint. It noted that the argument put forward by his representative, that he was entitled to use physical force and had done so, was contrary to the case he had put forward at the time. He had conceded there was no need to use force.

Mr Nason told the disciplinary hearing he was satisfied the Claimant did not deliberately trap the boy's fingers in the door, as the boy, AF, alleged. Mr Nason's evidence, which was accepted by the Employment Tribunal, was that Mr Nason's principal concern was that the Claimant should not have placed himself in the situation he did and was reckless to have done so. The Employment Tribunal concluded that it was open to Mr Nason to form that conclusion on the basis of the evidence which was available to him, and that was the case he put before the panel.

The Employment Tribunal considered the conduct of Mr Nason during the disciplinary hearing. He made interjections, which suggested that he appeared to think that he, rather than the Chairman, was in control of the hearing. The Employment Tribunal concluded as follows:

"10.45 …We thought it likely that Mr Nason's opinion carried a great deal of weight with the governors because of his position as head teacher and because he comes across as a person with a strong personality. We have not doubt that the governors had a great deal of respect for him. Mr Nason clearly took the view that it was unsafe for [the] Claimant to continue teaching at Corley school and that would have been apparent to the panel, and was likely to have influenced their decision."

The Employment Tribunal was satisfied that Mr Nason had carried out a thorough investigation, but concluded that he should have interviewed the boy CA. The disciplinary hearing continued for most of the day and then had to be reconvened. However, it did not meet again until 14 July 2004. The Employment Tribunal was critical of this delay, for which the Respondent had failed to give a cogent explanation.

On 12 July 2004 the Claimant's representative submitted a grievance relating to the manner in which the disciplinary hearing was conducted and the involvement of the second Respondent. The Claimant had asked for there to be a joint site visit so that he could make points to the panel about the location and the manner in which the door-closing mechanism worked. The panel members visited the site separately. Mr Whitehead wished to give evidence to the Tribunal about the door-closing mechanism, but the Employment Tribunal explained "that this was not relevant to our task." The Employment Tribunal was, however, critical of the panel visiting the site (and subsequently the appeal panel also) in the absence of the Claimant.

In paragraph 10.53 of the decision the Employment Tribunal set out the gist of the Claimant's evidence to the panel. He explained to the panel that he had not laid hands on AF; he had no right to do so. He explained that the door had closed onto AF's hand and he that he tried to open it. He felt resistance but he did not know from where it came. He concluded that the door must have bounced off someone's foot. He then went on to say that he now believed the explanation was that CA was outside the door to the classroom and not outside the school door. The panel considered that suggestion and rejected it. The Employment Tribunal was satisfied it was not unreasonable for the panel to reach that conclusion on the basis of the available information although it noted that CA had not been interviewed, despite the fact the Claimant had stated he was a material witness. It was unrealistic to suggest that the Claimant should have interviewed him, and the correct approach was for the interviewing officer to interview the people the Claimant believed had relevant evidence.

The Employment Tribunal was critical of the panel for failing to understand its powers to dismiss for misconduct less than gross misconduct.

The finding was based upon the evidence of Mr Barker. Mr Barker was the Chairman of the governors and Chairman of the disciplinary panel:

"10.54 …His evidence was that the panel took the view that it was not safe for the claimant to continue to work in the school and that he was a risk to pupils, consequently they decided they must find that the claimant was guilty of gross misconduct. They did so in the knowledge that this could end his career. We thought that the position was that the governing body had material before it from which it could reasonably conclude the first allegation had been proven, but it was far from clear to us that it must follow that the claimant's action amounted to gross misconduct. We concluded that the disciplinary panel decided what outcome they wanted to achieve, and worked backward from that point, which is not a permissible option available to an employer acting reasonably."

The Employment Tribunal accepted that if the panel concluded the Claimant's response on the day in question had been wholly inappropriate for an experienced teacher, this could go to the root of the employment contract:

"10.55 …However we did not accept that the governing body approached their task in the correct way. It was apparent that they took the decision that the claimant was guilty of gross misconduct because they believed that this was the only way to be sure that he could no longer continue to teach in the school. Presumably this decision reflected the advice the panel was given by the LEA."

Mr Barker wrote to the Claimant on 21 July 2004 to inform him of the decision of the panel and that it had taken into account "any issues of mitigation". The Employment Tribunal held that this was not correct, because the Claimant had not been invited to put forward any mitigation and had not done so. We note that the disciplinary panel rejected the other allegation against the Claimant made by Mrs Hewitt. Mr Barker wrote to the second Respondent the same day to confirm the outcome of the disciplinary panel hearing and to recommend that the second Respondent should dismiss the Claimant. He was dismissed by letter of 23 July 2004 and the second Respondent ceased to pay him from that date.

The Claimant's appeal was arranged for 21 October 2004, more than three months after the final disciplinary hearing. The Employment Tribunal concluded that the delay was caused by the Respondents and there was no good explanation for it. The delay was compounded by the failure of the Respondents to prepare proper bundles in a form acceptable to the Claimant. The appeal hearing was re-arranged for 8 December 2004. The Claimant raised a grievance relating to the inclusion in the bundles before the appeal panel of various unsubstantiated allegations against the Claimant. The Employment Tribunal was critical of the decision that the appeal panel should hear both the appeal and the grievance at the same time. It expressed concern that the second Respondent, the LEA, was becoming too involved and that there was a blurring of the role of governors and Local Education Authority.

The Employment Tribunal was also critical of the fact that when a parent governor withdrew from the appeal panel a teacher governor was appointed in this place. Although the offending documents were removed from the appeal panel's bundle, as the Employment Tribunal observed, the panel had been in possession of those papers for some time and were likely to have read them in preparation for the appeal. The appeal was not conducted by way of rehearing, over the Claimant's objections, although the Claimant was permitted to submit further evidence.

The Employment Tribunal also drew attention to a further unsatisfactory aspect of the appeal. The Claimant and his representative, Mr Griffith, found it difficult to follow Mr Nason's presentation of the case and they noted that the appeal panel did not have the same difficulties. They later learned that this was because Mr Nason had given the panel copies of his presentation notes, but had not supplied them to the Claimant or his representative. The Employment Tribunal found "this made it difficult for them to fully participate in the process."

The appeal panel dismissed the appeal. The Employment Tribunal accepted that the panel took all of the Claimant's points into consideration.

The Decision of the Employment Tribunal

It is important to have regard to the manner in which the Employment Tribunal approached its fact-finding duties. The Employment Tribunal expressed the view that the reason the case had generated so much evidence was in part because the Claimant and his representative did not appear to appreciate the role of the Tribunal in relation to an unfair dismissal claim, despite direction from the Chairman at the start of the hearing, and throughout the course of the hearing, as to its remit. It continued as follows:

"1. …The tribunal was clear that it was not for us to re-try the case and to make findings as to how the injury to the boy was actually caused. Our remit, which we made plain on a number of occasions, was to look at the fairness of the process followed by the respondents. It was for the respondents to establish they did believe the misconduct alleged had taken place; that they had reasonable grounds to sustain that belief; and that at the point they formed that belief, as much investigation as was reasonable in all the circumstances had been carried out. The case law also makes it clear that the tribunal should not form its own view as to whether dismissal should have taken place, but should ask whether dismissal was within a band of responses available to an employer acting reasonably. The range of reasonable responses test applies as much to the investigation as it does to the decision to dismiss. In that context, it was part of our task to decide whether the respondent gave thought to matters raised by the claimant during the disciplinary process, and took those matters into account when reaching its decision to dismiss him.

2. It was also our function to consider whether the claimant had in any way contributed towards the situation that be found himself in and to that extent it was our role to ask whether he had engaged in conduct which could be characterised as culpable or blameworthy. In that context, it did not appear to us that it was necessary for us to make findings as to how the injury to the boy was caused, nor would it be possible to do so. The claimant himself was not in a position to explain what had happened, and the boy's account, which was that the claimant deliberately caused the injury, had been rejected by the respondents. However, it was part of our remit to look at what action Mr Whitehead did take on the day in question and to ask ourselves whether such action caused or contributed in any way to his dismissal."

This approach of the Employment Tribunal can also be seen in paragraph 10.34 in which the Tribunal find:

"10.34 …It is not the tribunal's role to evaluate that theory. It is simply our role to review what steps the respondent took to evaluate that theory when it was put forward by the claimant."

We would also refer to paragraph 10.51, when the Employment Tribunal declared that it considered that evidence relating to the door-closing mechanism "was not relevant to our task".

The Employment Tribunal went on to direct itself correctly by reference to such cases as British Home Stores v Burchell [1978] IRLR 379 and Sainsbury's Supermarkets v Hitt [2003] IRLR to the effect that the question for an Employment Tribunal was whether an employer had established a belief in the alleged misconduct and had reasonable grounds to sustain that belief after a proper investigation. The Tribunal's task was not to form its own view as to whether dismissal should have taken place, but rather whether the dismissal was within a reasonable band of responses of the employer. The test of the reasonable band of responses applied just as much to the investigation as to the decision to dismiss. This is uncontroversial and we need say no more about it.

The Employment Tribunal also directed itself by reference to various provisions of the School Staffing (England) Regulations 2003 made under the Education Act 2002 to which we shall refer later.

We now turn to the conclusions of the Employment Tribunal. It was concluded that although the reason for the dismissal for the Claimant was his conduct, the dismissal was unfair and outwith the band of reasonable responses. The Employment Tribunal was highly critical in particular of the manner in which the disciplinary proceedings, both before the disciplinary panel and the appeal panel were conducted. It criticised the extensive delay and Mr Nason's contravention of the disciplinary process by retaining information in relation to the unproven allegation, and the fact that he put a prejudicial statement before the governors. The Employment Tribunal also criticised the wrongful use of documents at the appeal stage relating to the earlier and unproven allegations. It was critical of Mr Nason's interventions during the disciplinary and appeal hearings and suggested that he considered he was running those hearings and was likely to have influenced the panels. There were indications that the investigation was not even-handed; the Claimant was not asked to identify persons who might be interviewed. Mr Nason did not interview people the Claimant thought might give relevant evidence, and the Claimant was unable to do so as he had been suspended. Further, both the disciplinary panel and the appeal panel declined to have a joint site visit. The Employment Tribunal drew attention to issues which could cause the Claimant to believe he was not receiving a fair hearing, such as the fact that the first disciplinary hearing had to be abandoned when a governor fell asleep, disputes over documents to go before the panels, the refusal of joint site visits, the refusal to interview CA and to provide copies of contemporaneous notes together with the role of the second Respondent which at times appeared to go beyond merely providing advice.

The Employment Tribunal was concerned by the approach of the disciplinary panel and concluded it was influenced by Mr Nason's strong views and had adopted the wrong approach to deciding whether the Claimant was guilty of misconduct or gross misconduct by working backwards from the outcome it wanted to achieve. The approach to mitigation was flawed; there was concern about the inclusion of a teacher governor on the appeal panel, and confusion as to the process to be followed. Concern was expressed that the Claimant was required to conduct a grievance hearing before the panel due to hear the appeal. The Employment Tribunal concluded that this was likely to have caused the panel to have formed adverse opinions about the Claimant and his representative. Those grievances spilt over to the appeal hearing proper.

Finally, Mr Whitehead and his representative, Mr Griffith, found it difficult to participate in the appeal hearing because Mr Nason had not provided them with his presentation notes.

The Employment Tribunal, taking all of the matters we have mentioned into account, concluded that the Claimant was unfairly dismissed. It then went on to consider the issue of contribution. The Employment Tribunal found that the Claimant had been informed by Mr Nason he should not use physical intervention with pupils and was well aware he should avoid placing himself in situations where such allegations could arise. He had accepted that the situation with AF did not warrant physical intervention; the Employment Tribunal did not consider that this case was about the use of physical force. The suggestion by Mr Griffith (the Claimant's lay representative) that it was, was "incorrect and unsupported by the evidence". The Employment Tribunal went on to find there was evidence that the Claimant's actions on the day in question had been "culpable and blameworthy":

"4.3 …The claimant was a very experienced teacher [10.1], yet on the day in question he allowed a situation to develop which should not have done, failed to take action to prevent the situation from escalating [10.14] and was positioned next to the door when AF was injured when there was no reason for him to be there [10.15, 10.16, 10.19 and 10.44]. This came about because of his reaction to the fact that a third boy was leaving the room [10.19]. On his own evidence to the tribunal he should have simply allowed AF to leave. We have concluded that the claimant's culpable and blameworthy conduct was clearly causative of his dismissal and that it is just and equitable to reduce both the basic award and the compensatory award by fifty percent to reflect the extent of the claimant's contribution. In evaluating that contribution we have taken into account the fact that the claimant had not been provided with a telephone in his classroom [10.2] and we would have put the percentage contribution as much higher if he had been and had failed to use it. We did not take into account the fact that the claimant has not received training in the school's preferred physical restraint technique [10.2 and 10.5] as the claimant himself had told us the situation was not one which warranted use of physical restraint [10.15]."

Finally, the Employment Tribunal turned to consider the question of whether there had been a breach of the Claimant's contract of employment. We will refer to the relevant statutory provisions later in this judgment. The Employment Tribunal concluded that the wording of Regulation 17(2) of the School Staffing (England) Regulations 2003 imposed a mandatory requirement on the second Respondent to terminate the Claimant's contract within 14 days of notification being received. However, as Regulation 17(1) was silent as to when determination occurred; it concluded that the timing of the notification should be determined by the terms of the contract of employment. As the Claimant's contract provided that notification should occur after the appeal hearing, the Respondent was in breach of contract when it sent notification after the disciplinary hearing.

Discussion of the relevant law

It is important to bear in mind the circumstances in which an Employment Tribunal can reduce compensation in a case where it has found the dismissal to be unfair. For present purposes it is necessary to have regard to ss122(2) and 123(6) of the Employment Rights Act 1996. These provisions are as follows:

"122 Basic award: reductions.

(2) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.

123 Compensatory award

(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."

In the present case, the Employment Tribunal reduced the Claimant's compensation under s123(6) on the grounds of his contribution towards the dismissal. As HHJ Peter Clark said in Optikinetics v Whooley (EAT/1257/97):

"For the purposes of s.123(6) the employee's conduct must be known to the employer at the time of the dismissal… and have been a cause of the dismissal."

In Nelson v BBC (No.2) [1980] ICR 110 the Court of Appeal made clear (by reference to the predecessor of s123(6), paragraph 19(3) of Schedule 1 to Trade Union and Labour Relations Act 1974) that the actions of the employee had to be blameworthy if they were to be treated as causing or contributing to the dismissal. Brandon L J said at paragraph 121:

"121. I agree with the conclusion there reached that, on a proper interpretation of paragraph 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…

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.

It follows from what I have said that it was necessary for the industrial tribunal in this case, in order to justify the reduction of Mr. Nelson's compensation which they made, to make three findings as follows. First, a finding that there was conduct of Mr. Nelson in connection with his unfair dismissal which was culpable or blameworthy in the sense which I have explained. Secondly, that the unfair dismissal was caused or contributed to to some extent by that conduct. Thirdly, that it was just and equitable, having regard to the first and second findings, to reduce the assessment of Mr. Nelson's loss by 60 per cent."

The principle that only conduct known to the employer at the time of dismissal can be relied upon is analogous with the principle in Devis v Atkins [1997] AC 931 that a dismissal can only be justified on facts known to the employer at the time of dismissal. The position under 122(2) of the Act is different. Conduct not known at the time of dismissal but subsequently discovered by the employer can be taken into account by an Employment Tribunal in reducing compensation under s122(2) of the Act.

It is apparent, therefore, that an Employment Tribunal must direct itself carefully and make clear to the parties how it proposes to deal with the separate questions of fairness of dismissal and contributory fault reduction under s122(2) of the Act. This was made clear, for example, by Waite J in Iggesund Convertors v Lewis [1984] IRLR 431. We are content simply to refer to the head note which, in our opinion, accurately reflects the judgment:

"Whenever an Industrial Tribunal decides to allocate the issues of fairness on the one hand and contributory fault on the other to separate hearings, some direction as to how the evidence on the two issues is to be dealt with is essential. Such direction may take one of two alternative forms.

The most common form of evidential direction consists of a direction made at the outset of the hearing that although any question of contributory fault, should it arise, is to be dealt with at a separate and subsequent hearing, the evidence on the issue of fairness and the evidence on contributory fault are nevertheless to be taken together. This method places the evidence on the same footing as if there had been a composite hearing, avoids the double attendance of witnesses, alerts the employer at an early stage to the need to make out an independent case on contributory fault irrespective of the evidence adduced on fairness, reduces the risk of the employee being taken by surprise by last minute allegations and at the same time preserves the distinction between the categories of evidence relating to the issue of fairness on the one hand and to contributory fault on the other.

Conversely, at the outset of the first hearing, or even earlier, the Industrial Tribunal Chairman may direct that the evidence is to be treated as divided into separate categories and dealt with piecemeal at the two hearings. This method is well suited to the Devis v Atkins [1977] IRLR 314 kind of case where the misconduct relied upon by the employers for the purposes of contributory fault represents or includes conduct unknown to them at the time of the dismissal and the evidence thus lends itself readily to division into water-tight compartments for separate hearings.

In cases of alleged misconduct disputed by the employee it will normally be desirable, and frequently essential, for the Industrial Tribunal to make specific findings as to what allegations were put by the employers at any accusatory interview preceding the dismissal, what opportunity the employee was given of learning the nature of the evidence relied on, what opportunity he was allowed of replying to it, and what his reply was."

At paragraph 27, Waite J made clear:

"…the necessity to maintain clearly in the minds both of the Tribunal and of the parties at every stage the distinction emphasised by the House of Lords in Devis v Atkins [1977] IRLR 314 between the considerations relevant to an investigation of fairness on the one hand and those relevant to an investigation of contributory fault on the other."

We now turn to consider the relevant statutory provisions relevant to the claim for breach of contract that applied at the time the Claimant's contract was entered into. The relevant provisions are to be found in Schedule 16 to the School Standards and Framework Act 1998. Paragraph 25(1) provides that where the governing body of a school determines that a person employed by the local education authority should cease to work there, it should notify the authority in writing of its determination and its reasons for it. The local education authority is then required by paragraph 25(2) to determine the employee's contract.

Paragraph 27(1) requires the governing body of the school to afford any person against whom they propose to make a determination cease to work at the school the opportunity of making representations. By paragraph 27(2) they must make arrangements for giving such a person an opportunity of appealing against that determination:

"…before they notify the local education authority of the determination."

These provisions were repealed by the Education Act 2002 s215(2) and Schedule 22 Part 3.

The current statutory provision relating to dismissal of teachers in the position of the Respondent are to be found in the School Staffing (England) Regulations 2003 (SI 2003 No. 1963). We will first refer to Regulation 17:

"17.(1) Subject to regulation 18, where the governing body determines that any person employed or engaged by the authority to work at the school should cease to work there [13], it must notify the authority in writing of its determination and the reasons for it.

(2) If the person concerned is employed or engaged to work solely at the school (and does not resign), the authority must, before the end of the period of fourteen days beginning with the date on which the notification under paragraph (1) is given, either—

(a) give him such notice terminating his contract with the authority as is required under that contract, or

(b) terminate that contract without notice if the circumstances are such that it is entitled to do so by reason of his conduct.

(3) If the person concerned is not employed or engaged by the authority to work solely at the school, the authority must require him to cease to work at the school."

The Schedule to the regulations is also important. It contains transitional dismissal and disciplinary procedures which are accepted to apply in the present case. Paragraph 2(3) provides as follows:

"2(3) In the case of schools to which Part 2 of these Regulations applies and members of staff to whom regulation 26 applies, the governing body must make arrangements for giving any person, in respect of whom it has made a determination that they should cease to work at the school, an opportunity to appeal at a hearing before at least three governors and notify the authority of the outcome of the hearing within seven days."

With that background in mind, we now turn to the grounds of appeal and cross-appeal and arguments of the parties. At first blush, it appears as though the notice of appeal raises an appeal on questions of fact and as we said during argument, in the vernacular, the EAT does not do appeals on fact, it does appeals on law. However, closer examination shows that this initial view may be over-simplistic. It is helpful to set out a number of submissions of law which in the main are not controversial made by Mr Patrick Green who appeared on behalf of the Claimants:

(a) contributory fault is a distinct and separate issue in cases of unfair dismissal. It must be separately and properly considered;

(b) for the purposes of unfair dismissal, an employer can only rely upon matters it knew at the time of dismissal (see Devis v Atkins (supra)) after acquired knowledge is relevant to issues of compensation only, not to the fairness of the dismissal

There is a distinction between reductions that may be made to a basic award under s122(2) of the Employment Rights Act 1996 and 123(6). Whereas after acquired knowledge is relevant to a potential deduction under 122(2), deduction can only be made under s123(6) in reference to conduct of the employee known to the Respondent at the time of dismissal. We are told by Mr Green that at the hearing for the Employment Tribunal the Respondent only sought to establish a deduction under s123(6); it did not seek reduction in contribution either under s122(2) of the Act nor did it seek a Polkey deduction.

(c) The Employment Tribunal should make the procedure it proposes to adopt clear to the parties at the outset.

(d) Mr Green submitted that the error of the Employment Tribunal in this case was to vacillate between an approach that was appropriate to a reduction in contribution under s122(2) and the approach required to determine the unfairness of the dismissal and contribution under s123(6). There was a need for a clear self-direction as well as direction to the parties and a need for a firm demarcation between considerations relevant to fairness on the one hand and contribution on the other.

Mr Green drew attention to the direction in paragraph 1 relating to fairness of dismissal, which was in effect repeated in paragraph 2 which dealt with contribution. These directions, read together, he submitted, were inadequate and potentially confusing both to the Employment Tribunal and to the parties. This was all the more so as findings of fact in relation to causation were highly relevant to contribution because they go to the principle of contribution as well as the relevant percentage of contributory fault. Accordingly, Mr Green submitted, the requirements of justice were not met.

(e) Before making a finding of contributory fault, the Employment Tribunal should allow a Claimant the opportunity to give evidence on the issue;

(f) the phrase "caused or contributed to by" in s122(6) imposes a requirement of causation on which the Employment Tribunal must make proper findings.

It was submitted that the approach of the Employment Tribunal was flawed by confusion between the approach to fairness of dismissal and contribution. Mr Green drew our attention to the directions at paragraphs 1 and 2 as well as to paragraph 10.34 in which the Employment Tribunal held it was not its role to evaluate the Claimant's theory but:

"It is simply our role to review what steps the respondent took to evaluate that theory when it was put forward by the claimant."

(We would note in passing that a similar point can be made in relation to paragraph 10.51 when the Employment Tribunal, during the course of the proceedings, told the parties that an explanation about the door-closing mechanism was not relevant to its task). Mr Green pressed upon us that the Employment Tribunal had stated it would not examine the facts as to how the accident occurred, yet that is exactly what the Employment Tribunal went on to do, having discouraged the parties from leading evidence in this regard. He drew our attention in particular to paragraph 10.19 of the decision in which the Employment Tribunal:

"concluded that the claimant and AF were both rushing towards the door when the injury occurred, and that the injury should not have occurred if the claimant had simply interposed himself between AF and the doorway."

In the circumstances, it was submitted, the Employment Tribunal had made a decision on a basis different from that which it directed itself at the outset of its decision, and contrary to the way in which it explained its role to the parties, and that was unfair.

Mr Green went on to submit that the Employment Tribunal must make explicit findings as to the behaviour, action or conduct it takes into account in assessing contribution. That conduct in relation to s123(6) of the Act requires the dismissal to be caused by blameworthy conduct known to the Respondent at the time of dismissal. We note that this principle is not controversial. Mr Green submitted that the Respondent needed to consider two issues. First, what actually had happened, and secondly, to characterise what had happened; was it to be characterised as gross misconduct or not? He noted that the Claimant had not been permitted to present any mitigation. The Employment Tribunal should have addressed itself specifically to the issue of what the Respondent's dismissing officers knew. There were serious issues as to what information in fact had been placed before the disciplinary panel.

Mr Green then went on to submit that the conduct of the Claimant should have been judged in the light of the context in which he found himself. In a case where the Employment Tribunal had found the Respondent's evidential base and knowledge to have been unsatisfactory and significantly incomplete, a fortiori was vitiated by prejudice, unfairness and unreliability, it would be wrong in principle to make a finding as to contributory fault. This submission is more controversial. The Claimant submitted that the Respondent could not properly be said to have known of his misconduct. It could not be said there was sufficient evidence that the dismissal was caused by blameworthy conduct.

A reduction for contributory fault should be made if the conduct was not blameworthy and it must be more than minimal; this principle is not controversial. The Employment Tribunal is required to make careful findings as to what the Respondent knew at the time of dismissal and distinguish between the findings it makes in relation to the fairness of dismissal and contributory fault. The reduction on that basis would be just and equitable; a decision to reduce compensation under s123(6) must be made based on findings as to what in fact occurred; this was an exercise the Employment Tribunal failed to carry out, but on which it came to an apparent conclusion.

Mr Green went on to submit that the findings of the Employment Tribunal were inadequate; he relied upon the well-known principle in English v Emery Reimbold and Strick [2003] IRLR 710. He submitted that Article 6 of the European Convention on Human Rights, together with Article 1 of the first protocol, were engaged. This was particularly so because the findings of blameworthiness might have a serious effect on the Claimant's career.

Mr Green characterised the proceedings before the disciplinary panel and the appeal panel as unfair and indeed fairly spectacularly unfair and in those circumstances he submitted it was wrong for the Employment Tribunal to have placed any reliance on its findings of fact. The matter was compounded by the Employment Tribunal at paragraph 14 identifying what was known to Mr Nason as opposed to what was known by the persons who were responsible for the dismissal.

Mr Green then went on to attack the findings of fact made by the Employment Tribunal, which he considered were flawed and inadequate in a number of respects. He complained, inter alia, of the following:

(a) the Employment Tribunal should have made findings, and failed to do so, as to what he should have done differently; for example, as to how he might have prevented other pupils leaving the room.

Although on the surface the failure of the Employment Tribunal to make findings as to what the Claimant should properly have done appears to be an issue of fact, underlying that is an inadequate explanation of what it was the Claimant is said to have done that was characterised as blameworthy. The Claimant had said (see decision paragraph 10.14) that he took no action to prevent CA or to address what he perceived as a developing situation between CA and JS because there was so little time between JS and CA leaving the classroom and the next event which took place so that he was unable to take any action. The Employment Tribunal had accepted it was more likely than not that action could have been taken earlier by the Claimant to prevent the situation from escalating; however, the Employment Tribunal has not identified what that action might have been. What, for example, could the Claimant have done to prevent other pupils leaving?

(b) the Employment Tribunal had failed to address the distinction between the Claimant's decision to place himself between AF and the door and the decision not to use physical restraint. The Employment Tribunal appeared to have treated intervention and the use of force as synonymous and this, Mr Green submitted, led the Employment Tribunal into an error in so far as causation was concerned. This was crucial to the issue of blameworthiness;

(c) the Employment Tribunal ignored the Department of Education Circular 10/98 on physical restraint; this was an issue relative both to blameworthiness and culpability as well as causation;

(d) the Employment Tribunal failed to have regard to what, it was submitted, were the Respondent's contradictory written policies on physical intervention;

(e) the policies were not shown to the Claimant;

(f) the advice of the head teacher was said to have hamstrung the Claimant and conflicted with proper guidance based on allegations that had never been proven

(g) the Respondents had failed to provide the Claimant with any training in physical restraint;

(h) the Employment Tribunal, it was submitted, had failed to have regard to the speed at which the situation developed and the need for the Claimant to act quickly; it failed to have sufficient regard to the fact that the Claimant had attempted to defuse the situation by sending the pupil JS on an errand;

(i) it was submitted that the conclusion of the Employment Tribunal – that the Claimant was culpable and blameworthy and was clearly causative of his dismissal – was opaque and inadequate, thus engaging Article 6 of the European Convention on Human Rights. The reasoning also was insufficient and did not adequately permit the Claimant to understand the basis of the finding against him.

In relation to disposal, Mr Green went so far as to submit that, on the findings of the Employment Tribunal, the Respondent's "knowledge" of the Claimant's misconduct was so vitiated by unfairness and flaws in the investigation and hearings that no reasonable Employment Tribunal could have found the Claimant's conduct caused his dismissal. The Employment Tribunal found that the Respondent worked back from the result it wanted to achieve and was driven to that course by Mr Nason. The presentation was skewed and prejudicial. The fact that Mr Nason wrongfully kept the file on the allegation that had been made, and relied upon that allegation, showed prior animus. The finding that the investigation was inadequate, incomplete, and unfair undermined any proper finding of contributory fault. The Claimant's job was inherently difficult; the position taken on restraint by the head was contradictory; the school's policies were unclear and the Claimant had not been provided with a telephone to enable him to obtain assistance. There was no support teacher so the Claimant had to deal with the matter on his own. In the circumstances no reasonable Tribunal could have found that the Claimant had contributed to his own dismissal. The appeal should be allowed and not remitted to the Employment Tribunal. It was submitted that we should substitute a finding that there had been no contributory fault.

Respondent's submissions on appeal

Ms Findlay, who appeared on behalf of the Respondents, had no basic quarrel with the Claimant's submissions as to the law. She submitted that the Employment Tribunal got it right on the facts and that there was evidence that justified the finding of recklessness on the part of the Claimant. The Employment Tribunal had correctly directed itself in relation to contributory conduct in accordance with the decision in Nelson v BBC (No. 2) (supra). A distinction needed to be drawn between considering whether, and to what extent, the Claimant's blameworthy conduct contributed to his dismissal and deciding exactly how the injuries to the pupil were caused. The Employment Tribunal was correct to draw a line between deciding on the one hand how the injury occurred, and on the other what the Claimant did on that day and in the immediate aftermath and whether that conduct was blameworthy and contributed to his dismissal within the meaning of s123(6). She relied upon the decision in Maris v Rotherham Corporation [1974] 2 All ER 776, a decision of the National Industrial Relations Court, for the proposition that issues of contribution were not restricted to the conduct of the employers in dismissing the employee unfairly, but brought into consideration all the circumstances surrounding the dismissal. She drew attention to the findings of the Employment Tribunal that the injury would not have occurred if the Claimant had simply interposed himself between AF and the doorway.

Further, the disciplinary panel had not found that the Claimant deliberately caused AF's hand to become trapped but he was reckless and his behaviour was inappropriate. He had ignored instructions not to become physically involved and ignored policies designed to prevent an incident occurring and had allowed the situation to escalate out of control. She sought to submit that the Employment Tribunal was entitled to find that the Claimant had the opportunity to prevent the incident from escalating and could have sent another pupil to get assistance. This was a case where the Employment Tribunal had preferred one piece of evidence over another, so there was no need to set out its findings in detail as was made clear in English v Emery Reinbold (supra).

She drew attention to a number of other factors which, she submitted, supported the Respondents' case:

(a) this was not a case of imminent danger and there was no need to use physical force;

(b) the finding at paragraph 43 was based on the Claimant's own evidence that he should have allowed AF to leave;

(c) the Employment Tribunal did what was required of it and the information upon which it relied was clearly before the disciplinary panel;

(d) the threshold for determining what was known to the disciplinary panel was not a high threshold; it was wrong to place hurdles that might prevent the Employment Tribunal concluding that the decision was a proper one.