Appeal No. UKEAT/0453/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 April 2010

Before
HIS HONOUR JUDGE McMULLEN QC
MR P GAMMON MBE
MR B R GIBBS

LONDON BOROUGH OF BRENT	APPELLANT

MRS A FULLER	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS LOUISE PRICE
(of Counsel)
Instructed by:
London Borough of Brent
Legal Services
Town Hall Annexe
Forty Lane
Wembley
Middlesex
HA9 9HD	
For the Respondent	MR O AFOLABI OGUNBIYA
(of Counsel)
Instructed by:
Owoyele Dada & Co Solicitors
Suite 336
99-103 Lomond Grove
London
SE5 7HN	

SUMMARY
UNFAIR DISMISSAL
Reasonableness of dismissal

The Employment Tribunal substituted its judgment for that of the management as to the seriousness of the Claimant’s conduct.  The employer was entitled to rely on an earlier similar incident even though it did not result in a disciplinary sanction, because it alerted the Claimant to the conduct complained of.  The Claimant was not unfairly dismissed.

HIS HONOUR JUDGE McMULLEN QC

1.	This is an unfair dismissal case.  It is the judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed.  We will refer to the parties as the Claimant and the Respondent.

Introduction
2.	It is an appeal by the Respondent in those proceedings against a Judgment of an Employment Tribunal chaired by Employment Judge Goodman, sitting over three days at Watford, registered with Reasons on 18 August 2010.  The Claimant and the Respondent are represented, respectively, by Mr Ogunbiya and Ms Price.  The Claimant claimed unfair dismissal; the Respondent contended it dismissed her fairly for misconduct.  The Tribunal decided in favour of the Claimant.  The Respondent appeals.  Directions sending this appeal to a full hearing were given by HHJ Peter Clark.

The legislation
3.	The legislation is not in dispute. Employment Rights Act 1996 sections 98(1) and 98(2) allow for conduct to be a potentially fair reason for dismissal, as here. Fairness is determined in accordance with section 98(4):
“… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— 
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and 
(b) shall be determined in accordance with equity and the substantial merits of the case.”

4.	In cases of misconduct, the guidance given in British Home Stores v Burchell [1978] IRLR 379 is relevant, brought up to date, in that it does not now impose a burden of proof on the employer. The Tribunal must find that the Respondent had a genuine belief after as much investigation was reasonable in the misconduct of the Claimant.  Reasonableness, and the band of reasonable responses set out in Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, apply to the three stages set out in British Home Stores. 

The facts
5.	The Tribunal introduced the parties in this way:
“2.	Vernon House School is a Community Special School for about 30 Key Stage 2 Pupils who suffer from social and emotional difficulties and are therefore not in mainstream school.  There are about 20 staff, of whom 3, did not have direct contact with children - they were the Claimant, others, the site supervisor, and the secretary.  The staff with child contact are variously teachers, family support workers, teaching assistants and psychologists.  The school has a delegated budget, which means that it is subject to 2003 School Staffing Regulations and there is a Governing Body of some 6 or 7 active governors.  By the end of 2007 it was being chaired by Ian Van Every.  The Head Teacher, Lucy Addington, started at the school in January 2007 and her evidence was that there were considerable disciplinary problems at the school which have absorbed most of her attention over the next two terms.  She was spending most of her time in the classroom, and had very little secretarial support.  As a result she had little opportunity to develop a relationship with the Claimant, who was very much left to get on her with duties.
3.	Pupils were disruptive on a daily basis - this was unchallenged evidence.  We were told about an incident in May 2007 both by Ms Addington and the Claimant (although the Claimant herself was unaware of the date).  This involved a pupil known as TB, who was found by the Claimant screaming and shouting about pain in his legs while staff were trying to control him.  The Claimant said, in the presence of the child, that she could not bear the screaming anymore and that they (the staff members) should leave him alone and ‘have mercy on him.’”

6.	The Claimant was part of the administrative staff. Bertie Ross, the Vice-Chairman of the Governors, also a teacher employed at another school, chaired an Appeal Panel, which we will describe in due course.  The Tribunal went on to say this about the first incident (we will call this the May incident):
“4.	On the Claimant’s evidence, Ms Addington said to the Claimant that she would speak to her later about this, but never did; on Ms Addington’s evidence she told the Claimant on the spot that she was not to interfere with discipline and the application of behavioural restraint.  Our finding is that that was the limit of it - there was a brief conversation at the time, there was no fuller discussion of what the Claimant had done or should have done, and certainly nothing that most people would have recognised as a verbal warning about her conduct.”

7.	The circumstances leading to the Claimant’s dismissal arose on 19 October 2007 (the October incident), and they were these:
“8.	The main incident that led to the dismissal occurred on Friday 19 October 2007, the last working day before the start of half term.  It involved a pupil known as TD, aged 8, who by his own description was ‘a screamer’.  On this occasion he disrupted school assembly, then exited from the classroom slamming the doors so as to injure his class teacher Zara Zipper, and was then restrained in the corridor by Miss Addington and a family support worker called Lorraine Kazembe.  The Claimant came upon the group in the foyer of the school as she came out of her office complaining about the noise of the screaming, and there she saw TD, Ms Addington, Ms Kazembe, and standing by Jude Towell, SEN Coordinator, Ruth Glover, Psychologist, and Ms Zipper the Class Teacher.  The child was kicking.  The Claimant said that they needed to stop, that they were hurting him, that there were five of them and one small boy and that they did not care.  Ms Addington told the Claimant to go back into the office: ‘we can talk about this later’.  She then put her hand on the Claimant’s shoulder and turned her round.  The Claimant responded that she was not to touch her.  The child meanwhile, who was being held by Ms Kazembe saw that the adults were distracted and began kicking again.  Mrs Fuller then said of the way Lorraine Kazembe was restraining the pupil (which was by grasping him across the chest with her hands by wrapping her legs over his as she sat on the floor): ‘Look at the sexual way you are holding him; that’s sexual’.  Ms Addington then threatened the Claimant with suspension if she did not leave the scene.  The child contributed: ‘don’t talk to Avril (the Claimant) like that, you fucking bitch (meaning Ms Addington’, and Mrs Fuller was then asked again to leave and went out of the front door, Ms Addington with her.  The child followed behind them to the front door and kicked Ms Addington in the legs.  The child was then led away.  Ms Kazembe went to hospital for treatment but was not admitted.  Ms Addington asked the Claimant for her keys.  The Claimant left a message on the answerphone of Mr B Ross, Vice‑Chair of Governors, before leaving the premises.  Of these facts there is very little dispute, only that the Claimant says that the comment to Ms Kazembe was not: ‘that’s sexual’, but ‘isn’t that a bit sexual?’ and she denies that the child used the swear words of Ms Addington.”

As a result, all present were asked to prepare a statement by Ms Addington.  The Claimant did not, others did.  The Claimant was suspended.  She was charged with:
“… allegations of serious misconduct which I believe you committed.
•	Unacceptable and inappropriate language in front of a pupil;
•	Repeated and inappropriate intervention into behaviour management issues;
•	Failure to follow reasonable management instructions;
•	Professional competence of a serious or persistence nature”

8.	The Claimant contended she was sick. She was required to attend an Occupational Health examination.  She refused, so added to the above charges were that she failed to attend an Occupational Health appointment and failed to tell the Head Teacher that she would not be attending.  We will call this the OH issue.

9.	 The Claimant, on advice, did not attend a second OH appointment, nor the disciplinary meeting, when in her absence a decision was made that she should be dismissed for the reasons set out in a detailed letter dated 5 March 2008.  The decision was based upon the October incident and the OH issue. It paid attention to the May incident.  The Claimant appealed.  On advice, she did not attend. Some documents relating to the Appeal did not reach the Appeal Panel.

10.	The Appeal Panel, chaired by Mr Ross, came to this conclusion:
“Nevertheless, the Panel considered carefully the decision letter of 5 March 2008 and all the other paperwork to see whether the dismissal should be reversed.  In particular, the Panel considered whether the dismissal was too harsh a penalty.  The Panel accepted the submission put on behalf of the Disciplinary Panel that the gross misconduct findings was justified for the following four reasons:
1.	The previous warning of 22 May 2007 when the Head Teacher had advised Avril Fuller about another instance of an improper intervention regarding a (different) child;
2.	The serious breach of instruction on the day in question;
3.	The potential risks given that the child had been encouraged by Avril Fuller in his aggressive and violent behaviour;
4.	The gratuitous and wholly inappropriate comment made about Lorraine Kazembe.”

The Claimant contended that there was procedural unfairness, and that the decision was outside the boundary of reasonable responses.

11.	The Employment Tribunal went on to make criticisms of the procedure but it is accepted before us that the Claimant failed in her case of unfairness based solely on procedure.  Procedural automatic unfairness contrary to section 98A was rejected by the Employment Tribunal, and there is no cross-appeal.  The Tribunal’s findings about Ms Addington’s involvement and the way in which the other procedures were operated led to the conclusion that the procedural defects were not sufficient by themselves to render the dismissal unfair, and again there is no cross-appeal against that finding.  As both advocates before us recognise, the sole issue is the finding that the dismissal was substantively unfair, as it is generally known, because a reasonable employer would not have dismissed for this reason.

12.	The Tribunal concluded that the May incident was rolled up into the October incident and that, as a result, the October incident was more serious than the Appeal Panel had been led to believe.  The Tribunal accepted that the Head Teacher had the right to be concerned about what the Claimant did, but this behaviour did not, of itself, merit dismissal.  It came to the conclusion that no reasonable employer would have dismissed the Claimant for a one-off incident. The May incident, which was categorised as a verbal warning, was built up to more than it was.  The Appeal Panel said nothing about the OH issue and the Tribunal noted that that matter was rightly rejected by the Appeal Panel.  The dismissal, therefore, was unfair.

The Respondent’s case
13.	Two short points are made by the Respondent.  The first is that the Tribunal impermissibly substituted its Judgment for that of the management, contrary to the approach required under Iceland Frozen Foods. Illustrations of that approach are found in the language of the Tribunal directly in its decision-making on the substantive issue, and indirectly through matters to do with procedure which are not live on appeal.  The decision-making of the Appeal Panel based upon the special work of this school were for it, and the Tribunal wrongly substituted its view for that of the management.

14.	Secondly, the Tribunal, on its own findings, wrongly regarded the May incident as involving a warning which had not been conducted through the appropriate procedure, and the Tribunal was wrong to find that the Respondent had itself rolled up the two incidents.

The Claimant’s case
15.	On behalf of the Claimant, it is contended that the Tribunal made a decision based upon the correct self-direction.  In accordance with section 98(4) and British Home Stores, the matter was judged against the standard of a reasonable employer in relation to a one-off incident, and the Tribunal adopted the correct objective test.  The Claimant was right to intervene, because she regarded the child as being in agony.  The Tribunal was correct in regarding the Panel as having been influenced by the May incident, as to which no formal proceedings attached.

The legal principles
16.	In addition to the authorities we have cited above, the legal principles emerge from the Judgment of the Court of Appeal in London Ambulance Service v Small [2009] EWCA Civ 220, where Mummery LJ required the focus of an Employment Tribunal to be upon the actions of the relevant management to determine whether what was done was fair.  In Sarkar v West London Mental NHS Trust [2010] EWCA Civ 289, Mummery LJ reminded us of the approach to be taken in misconduct cases, for he said this:
“4. The landmark judgment in Iceland Frozen Foods Limited v Jones [1983] ICR 17 (Browne-Wilkinson J) and later authorities binding on this court and on the tribunals identify the question for the ET in this way: was it within the range of reasonable responses for this employer to have dismissed this employee?  The ET must answer the question without substituting themselves for the employer.  Substitution happens when the members of the ET decide what they would have done if they had been the employer.  That is an error of law.  It ignores the fundamental fact that the ET are not the employer and that their function under the 1996 Act is to judge the fairness of the actions of the employer objectively.  They must do that by applying to the circumstances of the particular case the test of the reasonable response of the hypothetical reasonable employer: Foley v Post Office [2000] ICR 1283 at 1293.”

17.	The approach which we adopted in Northwest London Hospital NHS Trust v Bowater UKEAT/0144/09 is to consider, in the case of professional carers, whether the standards which are to be observed are those of a reasonable employer faced with the particular circumstances.  Superficially, the case may also be assisted by a consideration of our Judgments in Henderson UKEAT/0072/09 and Bowater: what is proper for child protection, or for sexual remarks during professional restraint, are matters for the management of specialist care establishments.

Discussion and conclusions
18.	We prefer the argument of Ms Price. On substitution, the Judgment itself contains many passages which point towards a mindset by the Employment Tribunal that it was criticising the Respondent.  It is in order for an Employment Tribunal to decide what a reasonable employer would have done.  The criticism in this case is of what the employer did without measuring it against that standard.  Just because there are criticisms of what the employer did does not mean that the action fell below the standard, or outside the range of responses, of a reasonable employer in dealing with the three stages in British Home Stores.  The language of this case is telling from the following illustrations (our emphasis):
“We felt that in the circumstances it would have been wiser for the school to have appointed as investigator a more neutral party … We felt that a more conciliatory tone at this stage would have enabled the governing panel which made the decision to find out more about what the Claimant said …” 
“We felt that this would not be sufficient to show that she should have been aware that she should not interfere, and this means that her behaviour on 19 October was not as serious as the Panel had been led to believe … But having taken into account the Head Teacher’s right to be concerned about what the Claimant did, we felt that this behaviour of itself did not merit dismissal.  … if the Claimant had defied authority, it was based on her own lack of understanding of the purpose of the behavioural policy which in turn could have been rectified by training or reasoned discussion with the Claimant.”

19.	The initial reading of the full paragraph is that the Claimant was about to lose this case.  There is general endorsement by the Tribunal of the supremacy of the management view about what restraint was appropriate, noting there is often a misconception by people who are not trained professionals about the way in which children in this specialist condition are to be restrained.  The Tribunal, however, substituted its judgment about what it would have done in about the Claimant’s intervention and comments.  This was not for it to do.  This was a unique school with unique problems.  The professionals had been trained about what to do and the Claimant had not.  The way in which she responded in front of the child was felt by the management to be inappropriate and it caused the child to be more aggressive.  The Head and Governors were entitled to take the view that this was inappropriate.  

20.	The Tribunal also considered the way in which this matter related to the May incident. The evidence of Mr Ross was that the Appeal Panel considered that the Claimant’s behaviour in the October incident on its own warranted dismissal.  That was a matter for the leadership of the school; it cannot be said to be beyond the band of reasonable responses in the circumstances facing it for it to have taken the view that it did.

21.	The second issue relates to the role of the May incident.  The Tribunal wrongly regards this as an alleged final warning, see paragraph 33.  This is a straightforward factual error, but since it feeds into the decision-making by the Tribunal, it is important to correct it.  There are sophisticated disciplinary policies in this establishment, but none of them was applied to the May incident.  The Claimant had a clean disciplinary record.  The Tribunal paid considerable attention to this event, and found that the Claimant would not be aware that she should not interfere in the October incident, and so came to the view that the matter was not as serious as the Appeal Panel judged.  That is an inconsistency, for the Tribunal, expressly invoking its finding, came to this conclusion:
“4. On the Claimant’s evidence, Ms Addington said to the Claimant that she would speak to her later about this, but never did; on Ms Addington’s evidence she told the Claimant on the spot that she was not to interfere with discipline and the application of behavioural restraint.  Our finding is that that was the limit of it - there was a brief conversation at the time, there was no fuller discussion of what the Claimant had done or should have done, and certainly nothing that most people would have recognised as a verbal warning about her conduct.”

In our Judgment, this is a distraction.  It was not said that the Claimant received a final warning. It is said by the Respondent that she was aware that she should not intervene when a child is being restrained, that she had been instructed not to.  That is all it is, the reference to warning in the Appeal Panel’s letter is in context to a warning to stay clear when restraint is conducted.  It is relevant to the October incident because on its face the Claimant is doing the same thing again.  True it is, she considered that the child was in agony, and she was interceding on his behalf, but as the Tribunal noted, such restraints properly carried out by professionals can often be distressing to people who are inexperienced in seeing that.  She should not have interfered.

22.	The May incident was relevant to the October incident.  She was not disciplined for the May incident.  She was dismissed for the October incident and the background to it was the May incident. The Tribunal was wrong to criticise the Respondent for paying attention to that.  What is common ground is that the finding by the Tribunal as to what the misconduct was: it was the October incident.  The finding, see paragraph 32, of a genuine belief in serious misconduct, relates and relates only to the October incident.

23.	The OH issue died away, despite Ms Price’s attempts to resurrect it before us.  The Tribunal found that it was foolish for the Respondent to build this into a disobedience issue, and recognised that the matter was rejected by the Appeal Panel.  There is no trace of it in the Appeal Panel’s letter, and it must be borne in mind that the reason for the dismissal is that which was given at the end of the Appeal, which contains no reference to the OH issue.  That gives support to the finding by the Tribunal that it was the October incident which preceded the OH issue which was, alone, the reason for dismissal.  

24.	In short, it was the management case that the unacceptable behaviour in October was something the Claimant was aware of as a result of the May incident, and goes no further than that.  The Respondent was not to be criticised by the Tribunal for invoking it.  All matters relating to the background of a dismissal are relevant, see Airbus v Webb [2008] IRLR309, where even an expired disciplinary warning is relevant when considering whether to dismiss.  This was not a disciplinary warning, but an instruction to the Claimant that she should not interfere where a child is being restrained. When she did she made wholly inappropriate and unprofessional comments of a sexual nature, again a matter for the school to assess: see Bowater. 

25.	She did not assist herself by not attending the meetings. We consider the Tribunal went too far to assist the Claimant by suggesting what she might have said, had she been there to answer questions about the May incident.  The point is, on advice she eschewed all of the proceedings, from the initial statement which was given by all others who saw the October incident. It is not surprising that the Disciplinary Panel, and, on a more limited basis, the Appeal Panel, decided to dismiss her.

26.	The Employment Tribunal committed an error of law in finding that this case was substantively unfair. The Judgment is set aside, and we are asked, ourselves, to substitute a Judgment that the dismissal was not unfair.  It is sufficient for us simply to allow the Appeal and to dismiss the Claimant’s claim of unfair dismissal.