United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/2011/0163_11_2909.html
Cite as: [2011] UKEAT 0163_11_2909, [2011] UKEAT 163_11_2909

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Appeal Nos. UKEAT/0162/11/ZT

UKEAT/0163/11/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 September 2011

Before

HIS HONOUR JUDGE PETER CLARK

MR B R GIBBS

MISS S M WILSON CBE

UKEAT/0162/11/ZT

(1) THE GOVERNING BODY OF BEECHVIEW SCHOOL

(2) BUCKINGHAMSHIRE COUNTY COUNCIL APPELLANTS

MR R GRIFFIN RESPONDENT

UKEAT/0163/11/ZT

MR R GRIFFIN APPELLANT

(1) THE GOVERNING BODY OF BEECHVIEW SCHOOL

(2) BUCKINGHAMSHIRE COUNTY COUNCIL RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For Mr Griffin

MR R GRIFFIN

(In Person)

For the School and County Council

MR R HIGNETT

(of Counsel)

Instructed by:

Buckinghamshire County Council

Legal Services

County Hall

Walton Street

Aylesbury

HP20 1UA

SUMMARY

UNFAIR DISMISSAL – Reasonableness of dismissal

PRACTICE AND PROCEDURE – New evidence on appeal

Claimant’s application to adduce evidence ruled inadmissible by Employment Judge refused. Respondents’ appeal against finding of unfair dismissal allowed in part. One issue of procedural unfairness remitted to Employment Tribunal for reconsideration. A second held to be erroneously decided by Employment Tribunal. Polkey issue to be determined if dismissal found procedurally unfair on remission.

HIS HONOUR JUDGE PETER CLARK

Introduction

1. The parties to these proceedings before the Reading Employment Tribunal were Mr Griffin (Claimant) and (1) the Governing Body of Beechview School (“the school”) and (2) Buckinghamshire County Council (Respondents).

2. The Claimant was employed at that school as a music teacher from September 1999 until his summary dismissal in May 2009. He brought a complaint of unfair dismissal. There was no claim of wrongful dismissal. The claim was resisted.

3. No material distinction appears to have been drawn between the Governing Body of the school which took the decision to dismiss, and the County Council which, as the Local Education Authority, was strictly his employer. We shall therefore refer to the parties as Claimant and Respondents.

4. An Employment Tribunal chaired by Employment Judge Gumbiti Zimuto heard this substantive complaint between 13 and 16 September 2010 and, following a day’s deliberations in private, promulgated their Reserved Judgment with Reasons on 9 November 2010. The Employment Tribunal upheld the Claimant’s complaint of unfair dismissal, found that he had contributed to his dismissal by his own conduct to the extent of 65 per cent and did not, it appears, make any ruling on the Respondents’ contention that, in addition, any compensatory award should be reduced or extinguished under the Polkey v A E Dayton Services Ltd [1987] IRLR 503 principle.

5. Against the finding of unfair dismissal, the level of contribution (too low) and the non-determination of the Polkey question, the Respondents appeal. Against the contribution finding (there was none) the Claimant appeals. Both appeals now come before us for full hearing.

The facts

6. The background to the Claimant’s dismissal concerned alleged incidents on three successive days: 19, 20 and 21 May 2008. The first two incidents concerned the Claimant’s alleged inappropriate treatment of pupils: on the first occasion, pupils known as EA and LW; the second involved LW only. The third incident concerned the Claimant’s reaction to his being excluded from the school by way of suspension by Ms Melero, Acting Head Teacher, on 21 May. The Employment Tribunal made various findings of fact about those three incidents at paragraphs 9-37.

7. An investigation report was prepared by a Mr Finn, and on 13 December 2008 the Claimant was given notice of four disciplinary charges. They are recorded at paragraph 45 of the Employment Tribunal’s Reasons in this way:

“(i) that the Claimant’s conduct towards a pupil, LW, was inappropriate, as set out in a complaint made by his parents to the Ms Melero;

(ii) that the Claimant’s conduct towards Ms Melero was inappropriate and that the Claimant failed to obey a reasonable instruction at the time when Ms Melero attempted to deal with the concerns raised by the parents of LW on 21 May and subsequently;

(iii) that the Claimant’s conduct towards a pupil, EA, was inappropriate as set out in information supplied by Ms Melero;

(iv) the disciplinary panel was also going to consider the evidence disclosed by the investigation report about the relationship between the Claimant and the school.”

8. A disciplinary hearing was convened first for 8 January 2009, then 12-13 February and finally 30 April to 1 May. The Employment Tribunal do not record in detail the reasons for those postponements (see paragraph 47).

9. The disciplinary panel was chaired by Mr Preston. Mr Preston found some of the Claimant’s questioning of witnesses called before the panel so offensive that he felt he had no option but to dismiss those witnesses. The Claimant, on the other hand, described the disciplinary hearing as a “kangaroo court” and complains that he did not receive a fair hearing.

10. The disciplinary panel found all four allegations proved and considered (see paragraph 55) that the Claimant failed to realise that he had done anything wrong and showed no insight into the effect of his behaviour on children. He was then summarily dismissed.

11. Against the dismissal decision the Claimant appealed. The appeal panel was chaired by Mrs Higgs. The appeal hearing on 13-14 July 2009 proceeded by way of a rehearing. At paragraph 57 the Employment Tribunal found:

“57. In the appeal the Chairman of the panel took a different approach to Mr Preston. Unlike Mr Preston who adopted what appears to have been an approach which involved the Claimant being refused the opportunity to put his case to the witnesses, Mrs Higgs told us that she reformulated the Claimant’s questions and put the matters to the witnesses in the form of a question that could receive an answer.”

12. The appeal panel again found the four charges proved and concluded that there had been an irrevocable breakdown of the working relationship between the Claimant and Ms Melero, and that the trust and confidence between the two of them had gone. So, too, had Ms Melero. She had left the school by the date of the Claimant’s dismissal in May 2009 (Reasons, paragraph 86) although we are told that she gave evidence at both the disciplinary and appeal hearings. The appeal was dismissed.

The Employment Tribunal Decision

13. Having directed themselves as to the law (paragraphs 68 and repeated 65 and 66; the numbering goes awry here) they express their conclusions at paragraphs 67-87. In summary they made the following findings:

(1) The reason for dismissal related to the Claimant’s conduct between 19 and 21 May 2008 (paragraphs 70 and 71).

(2) Mr Preston “overstepped the mark” in his conduct of the disciplinary hearing (paragraph 78).

(3) Although Mrs Higgs’ conduct of the appeal hearing was different to that of Mr Preston, and the appeal was by way of rehearing, that did not cure the fundamental procedural failings at the original disciplinary (paragraph 80).

(4) There was unjustifiable delay in carrying out and completing the disciplinary process (paragraph 82). We have earlier set out the relevant date between May 2008 and July 2009.

(5) Substantively, had a fair process been followed (see (3) and (4) above), dismissal for the conduct reason found was reasonable (applying section 98(4) of the Employment Rights Act 1996 (ERA), paragraph 83).

(6) The Employment Tribunal opined that the Claimant’s conduct did not amount to gross misconduct (paragraph 85). The relevance of that finding is unclear. There was no complaint of wrongful dismissal before the Employment Tribunal. Whether or not an employee is guilty of gross misconduct (that is, repudiatory behaviour) justifying summary dismissal at common law is not directly relevant to the section 98(4) reasonableness question. See my observations in Weston Recovery Services v Fisher (UKEAT/0062/ZT, 7 October 2010) paragraphs 12-16.

(7) The Employment Tribunal accepted that there was a breakdown of trust and confidence between the Claimant and Respondents which might have justified the Claimant’s dismissal. The remainder of that paragraph (86), and precisely what the Employment Tribunal draw from this aspect of the case is, at best, obscure.

(8) In their summary (paragraph 5) the Employment Tribunal found that the Claimant’s dismissal was procedurally unfair (see above). We infer that it was not substantively unfair; that is, the penalty of dismissal did not fall outside the range of reasonable responses open to the Respondents in view of the misconduct found.

(9) In these circumstances the Polkey question, identified as an issue in the case at paragraph 2.6 of the Reasons, required answering. It was not, on the face of the Employment Tribunal’s Reasons. Further, in answer to questions posed by HHJ Richardson under the Burns/Barke procedure in an EAT order dated 21 Jan 2011, the Employment Judge has informed the EAT that the Employment Tribunal did not reach any conclusions on the Polkey issue (his letter, dated 4 March 2011).

(10) The Claimant’s behaviour clearly contributed to his dismissal. His contribution was assessed at 65 per cent (paragraph 87).

Preliminary issue

14. Mr Griffin applied to adduce fresh evidence on appeal, specifically a DVD recording of his teaching pupils at the school. Apparently, he applied to have that material played before the Employment Tribunal. They declined to admit the evidence on grounds of relevance. We agree. It is not relevant to the issues raised below, nor in these appeals. Accordingly, we did not admit that evidence.

The appeals

15. Mr Hignett has advanced a number of challenges to the Employment Tribunal’s finding of unfair dismissal and submits, in the alternative, that the Employment Tribunal ought to have resolved the Polkey issue based on a finding of procedurally unfair dismissal and, finally, that the level of contribution found, 65 per cent, was far too low. The proper assessment would be 100 per cent.

16. Mr Griffin appears in person as he has throughout these proceedings. He has tried, he tells us, without success, to grasp the Polkey Principle. He does not understand the difference between statutory unfair dismissal and common law wrongful dismissal. He has listened to the discussion between counsel and the bench on the legal issues raised in the appeals, without engaging with those issues in response. None of this is said as any criticism of the Claimant. He is a pedagogue not a lawyer. I have attempted to explain the principles of law which arise to Mr Griffin but not, I fear, with any real success. His case before us, as it has always been, is that he is an excellent teacher; that he did nothing wrong to justify his dismissal; that LW, an eight year old boy, was an “idiot”; that such behaviour hampers the majority of pupils seeking to learn; and that his attempts to apply appropriate discipline were undermined by Ms Melero, the Acting Head, who concocted evidence against him. No contribution finding should have been made. He was not guilty of any culpable or blameworthy conduct.

17. Having considered the rival submissions, we find ourselves broadly agreeing with the final position taken by Mr Hignett, in his reply. It may be summarised in this way:

(1) The Employment Tribunal made a clear finding that the reason or principal reason for the Claimant’s dismissal related to his conduct, encapsulated in the four charges found proven at the internal disciplinary and appeal hearings.

(2) Applying the three-fold Burchell test, to which the Employment Tribunal directed themselves at paragraph 65, the Respondents had a genuine belief, based on reasonable grounds following a reasonable investigation, that the Claimant was guilty of that conduct (paragraph 83).

(3) Consideration of whether that conduct amounted to gross misconduct is irrelevant to the section 98(4) reasonableness question.

(4) In these circumstances, dismissal for that reason fell within the range of reasonable responses, subject only to the question of procedural unfairness.

(5) As to that, the Employment Tribunal’s finding at paragraph 80 cannot stand. It is internally inconsistent and wrong in law. Assuming against the Respondents that the conduct of the disciplinary hearing by Mr Preston was procedurally defective, in view of the findings at paragraph 57, such defect was plainly cured by the appeal, at which the witnesses were heard and cross-examined again. Unfairness at the disciplinary hearing cannot dislodge the effect of a fair appeal procedure. On the Employment Tribunal’s findings we uphold this part of the Respondents’ appeal and set aside the finding of procedural unfairness in relation to the conduct of the disciplinary proceedings.

(6) That leaves only the finding of unfairness in relation to the Respondents’ delay in completing the disciplinary process (paragraphs 47 and 81-82). In this respect we agree with Mr Hignett that the Employment Tribunal fell into error in failing to ask themselves two questions: (a) whether the delay in the circumstances fell outside the procedural range of reasonable responses open to the employer (see Sainsbury’s Supermarket v Hitt [2002] EWCA Civ 1588, referred to in part by the Employment Tribunal at paragraph 66); and (b) whether the Claimant suffered any disadvantage as a result of the delay. Not every procedural failing will render a dismissal unfair. The Employment Tribunal is asked to reconsider this aspect of its original findings.

(7) Plainly the Polkey issue will arise for determination if the Employment Tribunal, on remission, conclude that the delay rendered the Claimant’s dismissal procedurally unfair.

(8) As to contribution, if it arises, we reject the Claimant’s appeal against the Employment Tribunal’s finding (paragraph 87) that his behaviour contributed to his dismissal. That is clear from the Employment Judge’s answer to the first Burns/Barke question raised by Judge Richardson. As to this part of the Respondents’ appeal, we bear in mind that the assessment of the level of contribution is essentially a matter of judgment for the Employment Tribunal. We can find no error of law in their assessment of a 65 per cent contribution and therefore dismiss this part of the Respondents’ appeal.

Disposal

18. It follows that the Respondents’ appeal succeeds in part. The Claimant’s appeal is dismissed. The case will be remitted to the same Employment Tribunal, which has yet to hear the remedy issue, to determine (1) the delay question, and whether or not that alone rendered the dismissal unfair; (2) if unfair, it then must decide the Polkey issue before applying the 65 per cent contribution finding to the compensatory award (that deduction will apply to the basic award); and (3) to determine the level of compensation payable to the Claimant, if any.