Appeal No. UKEAT/0284/11/ZT
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At
the Tribunal
On
2 November 2011
Before
HIS
HONOUR JUDGE BIRTLES
DR B V FITZGERALD MBE
LLD FRSA
MR P SMITH
MISS
L RUSTAMOVA APPELLANT
THE
GOVERNING BODY OF CALDER HIGH SCHOOL RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
Employment Tribunal held (by a majority) that a school teacher
was guilty of gross misconduct and the dismissal was fair. The EAT held there
was an absence of reasoning in the majority reasons (two paragraphs) which made
their Judgment not Meek compliant.
HIS HONOUR JUDGE BIRTLES
Introduction
1.
This is an appeal from the decision of an Employment Tribunal sitting in
Leeds in January and February 2011. The majority view of the Employment
Tribunal was that the dismissal of Miss Rustamova was fair, and the claim
was therefore dismissed. This was the Judgment of the two lay members; the
Employment Judge dissented. Today the Appellant, Miss Rustamova, is
represented by Mr Matthew Pascall of counsel, and the Respondent, the
governing body of Calder High School, by Mr Andrew McGrath of counsel. We
are grateful to both counsel for their written and oral submissions.
The factual background
2.
This is set out in detail in paragraphs 3‑46 of the Judgment
of the Tribunal. The Appellant was a teacher at Calder High School, which is
located in Hebden Bridge. Her employment commenced on
1 September 1998 and was brought to an end by her summary dismissal
on 31 May 2009. Prior to the events that give rise to her dismissal,
her career at the school was a successful one. The Tribunal record that in September 2002
she was promoted to a temporary pastoral role as Head of Year, and in
September 2006 she progressed to the upper pay spine. In
September 2008 she was appointed on a one‑year temporary contract to
the position of Social Cohesion Co‑ordinator. Her principal subject for
teaching was English. The Headmaster of the school at all relevant times was
Mr Stephen Ball.
3.
In the academic year 2007‑2008 the Claimant was asked to take
responsibility for a group of young men who had had a very troubled school
career; they were known as the “Commie Boys”. They were low achievers and
their behaviour had led to repeated exclusion. The Tribunal record that in
simple terms, as Miss Rustamova saw it, her responsibility was to
endeavour to get them through to the end of their academic careers at the
school without facing permanent exclusion and achieving some level of success
either academically or in terms of personal development. She was successful at
that. The Tribunal record that Miss Rustamova enjoyed the professional
challenge that these young men presented her with, recognised that conventional
schooling had failed them, and that to some extent unconventional means were
required to gain their support and re‑engage them within the school. It
appears that her efforts in doing so were appreciated within the school and
particularly by the Headmaster, Mr Ball.
4.
One method or technique that Miss Rustamova adopted was to engage
these young men to begin writing a story. Ultimately that story was turned
into a book entitled “Stop, DoN’t ReAD tHiS!” The Tribunal describe the novel
as being “racy” and “risky” [sic]. It adopts many of the cultural perspectives
or references of the young men. The Tribunal record that the book is littered
with bad language, with reference to drug‑taking and to criminal
behaviour. The principal characters within the book are the Commie Boys, who
are named as such by their first names. The story is based at Calder High School and the Claimant is also featured under her nickname, “Miss Rusty”.
Some members of staff are named and others, it is said, are recognisable. In
particular, one member of staff, who had long‑standing professional
difficulties with disciplinary issues concerning pupils in the school, was
readily recognisable; two other pupils were recognisable through sexual
innuendo.
5.
The process of writing the novel by a chapter at a time commenced. The
intention was to get the involvement of the group because the novel was
essentially about them. In early March 2008 Miss Rustamova gave the
Headmaster, Mr Ball, the first four chapters of the book. He wrote a note
to Miss Rustamova, which is recorded in paragraph 8 of the Judgment.
He said this:
“Leonora, thanks for letting me read this (an R.S. mock exam
invigilation provided the rest of the time I needed). Initially, I wasn’t sure
about how it would work as a concept, but I think it is a triumph. After the
first chapter, I began to feel really engaged and was fascinated by the idea of
the school break‑in. How I wish we really could have a CCTV tape of ‘CHS
greatest hits’; we wouldn’t have to come up with such a funny idea! I’d like
to come along and talk to the lads about this (in a positive way, of course) to
have a conversation and to pass on my congratulations – a very different
conversation from those I have often had with them previously. You’ve done a
superb job with this. Let me know if I can help.”
6.
The Tribunal record that at this stage the novel was perceived only to
be part of a school project. At the beginning of May 2008 the Commie Boys
were, no doubt along with others in the final year, no longer bound to attend
the school, having completed their studies. There was a barbeque at the home
of another teacher that involved the Appellant. On 27 June 2008 some
of the Commie Boys spent the night at the other teacher’s house. The name of
that other teacher was Mr Stephen Cann; he was a friend of the Appellant.
By August 2008 the Appellant had completed the book. She obtained the
assistance of her husband, who was in the publishing business, to publish it by
means of a website printer, lulu.com. The Appellant’s husband arranged to be
printed 12 copies of the book. At the same time the book was accessible
on the internet. The publishing method was unknown to the Appellant at that
time.
7.
On 9 September 2008 a copy of the book was left with
Mr Ball, together with a letter from the Appellant. By October 2008
copies of the book were printed and provided to the Commie Boys and to members
of staff. Further printed copies were obtained. In the same month
Mr Cann and the Appellant had a reunion with some of the Commie Boys, and
on 19 December 2008 Mr Cann and the Appellant took the Commie Boys
to Whitby for the evening. It would appear from the evidence that there were
22 hits on the website for the book.
8.
We turn to 2009. On 19 January 2009 the Appellant had a
meeting with Mr Ball and she was asked a series of short questions that
had been prepared before the meeting. The request to remove the book from the
internet was made at that meeting and done on the same day, so the effect was
that the book had remained on the internet for some five months. On
4 February 2009 there was a pre‑disciplinary meeting attended
by Mr Ball as investigator. The Appellant was represented by Ms Beverley Marshall,
her union representative. We have seen some of the notes of that session. On
13 March 2009 the Claimant was invited to attend a disciplinary
hearing at which six allegations were to be considered. They were as follows:
“(1) – failing to observe confidentiality in a manner consistent
with legal requirements.
(2) – failing to take reasonable care of pupils under your
supervision, with the aim of ensuring their safety and welfare: forming and
maintaining inappropriate relationships with pupils/ex‑pupils, contrary
to established Safer Working Practice.
(3) – deameaning or undermining pupils, parents and colleagues.
(4) – undermining the authority of the Head Teacher.
(5) – bringing the teaching profession into disrepute.
(6) – bringing the school into disrepute with pupils, parents,
partner agencies, within its local community and, potentially, more widely.”
9.
The disciplinary hearing was held by three Governors of the school,
presided over by Mrs Jean Bradbury, the Chair of the Disciplinary Committee.
They sat on 20 April, 5 May and 19 May 2009. By letter
dated 22 May 2009 Mrs Bradbury wrote to the Appellant setting
out the panel’s conclusions. The letter appears at appeal bundle pages 66‑72.
In each case of the six charges the panel found the charge proved. At
page 72 the letter goes on to say this as regards sentence:
“In summing up the headteacher told us that ‘trust has to be the
basis of the relationship between employee and employer and, in his view, that
relationship has been breached beyond repair by (you)’. Having heard your
evidence he told us that in his view there was no hint of recognition that many
of the things you have done cannot be justified and far from offering an
apology or expressing regret you seem convinced that you are correct and that
others around you do not match your high standards of excellence. You told us
that in your view rather than failing professional standards you far exceed
them. Mr Ball remained deeply troubled by your failure to understand that
there are boundaries around your professional role that exist to safeguard you
and the rights of children and parents. It is in these areas that you have
demonstrated repeatedly a failure of judgement. He told us that your
behaviours have had to be investigated and challenged to ensure that children
are safeguarded and that the integrity of our school is maintained. He had
begun believing that you had very seriously fallen short of the required
standards of professional conduct and was more convinced of this having read
and heard your defence than when he took the decision to suspend you.
He told us very clearly that your manifest failings in meeting
the required standards of professional conduct are wholly unacceptable in our
school, and that your ongoing employment within it now has become completely
untenable.
What your representative has asked us to do is to consider your
‘good intentions’, and your past contribution to the school, and to consider
any alternatives to dismissing you.
We did this, but find that we accept the headteacher’s case for
your dismissal. Given our findings above concerning the allegations, we also
take the view that they amount to gross misconduct, and a breach of trust and
confidence, and we are therefore dismissing you with immediate effect from the
employment of the school. Your last day of employment will therefore be
31 May 2009.”
10.
Against that decision Miss Rustamova appealed to a separate panel
of governors presided over by Mr Robert Good, the Chair of the Disciplinary
Appeal Panel. There was a hearing on 25 June 2009 and by letter
dated 29 June 2009 Mr Good wrote to Miss Rustamova
dismissing her appeal. The letter appears at appeal bundle pages 73‑76.
The Tribunal simply noted the existence of the letter; no point appears to have
been taken at the Employment Tribunal hearing about the hearing before the Appeal
panel, and we say no more about it.
11.
Against that appeal and the decision to dismiss her Miss Rustamova
made a complaint of unfair dismissal to the Leeds Employment Tribunal. The
hearing took place on 11‑14 January and 22 February 2011.
The Reserved Judgment of the Tribunal, which appears at appeal bundle
pages 1‑19, was sent to the parties on 17 March 2011. The
Tribunal set out the facts, as I have indicated, in paragraphs 3‑46
of the Judgment. At paragraphs 47‑51 they consider the submissions
of counsel and the relevant law. I should say that both Mr Pascall and
Mr McGrath appeared before the Employment Tribunal. At paragraphs 52‑71
the Tribunal set out their findings. They record in paragraph 52 that
they have been unable to come to agreement, with the two lay members forming
the majority. The majority’s Reasons are essentially set out at
paragraphs 53 and 54 of the Judgment; they say this:
“53. The majority conclude that a teacher has very high
standards of professional conduct to maintain. In particular,
Miss Rustamova was an experienced teacher, post threshold, and had
successfully demonstrated to her senior managers that she had the necessary
professional knowledge and attributes for progression to the upper pay spine.
Issues relating to confidentiality and propriety of professional conduct should
be second nature to a teacher. In the circumstances of this case,
Miss Rustamova repeatedly acknowledged her faults and acknowledged that,
in many respects, she had failed to meet the standards that her profession that
was entitled to require of her. The Governors formed a view as to the
seriousness of that conduct and the majority did not differ from their view or,
even if they privately did, they recognise their obligation not to substitute
their view for a view reasonably held by the Governors. The acknowledgement of
fault on the part of the Claimant demonstrates to the majority that the Governors
beliefs were reasonably held.
54. As to the issue of sanction, we recognise that other
employers may have imposed a lesser sanction. They accept the submissions made
by Mr McGrath that, at both the disciplinary and the appeal hearing, an
experienced Trade Union Officer conceded, on behalf of Miss Rustamova,
that it was an open issue for the Governors to consider whether the Claimant’s
conduct amounted to such a fundamental breach of trust to mean that she could
never work at the school again or, at the appeal, that a final written warning
would have been a more appropriate sanction. The majority therefore conclude
that the Governors cannot be criticised for forming the view that dismissal was
the appropriate sanction and, at any event, could not conclude that dismissal
was outside the band of reasonable responses.”
12.
There is then a reference in paragraph 55 to the involvement of
Mr Ball, but that does not concern us today. The views of the minority
Employment Judge begin at paragraph 56. He reminds himself of the words
of section 98(4) of the Employment Rights Act 1996,
records further facts, and raises a number of points that have not troubled us
today, in the sense that they have not been raised by counsel.
The grounds of appeal
13.
We begin by reminding ourselves that we are not deciding the merits of
the Respondent’s case against the Appellant; we are confined to ascertaining
whether or not there are any errors of law in the Judgment of the Employment
Tribunal that justify this appeal being allowed. In this case the Judgment of
the Employment Tribunal was of the two lay members. We remind ourselves that
we must not substitute our views for the views of the majority of the Tribunal;
neither, of course, must we substitute our views of the decision of the
Respondent Governors either in respect of the disciplinary hearing or the
appeal.
14.
Before turning to the grounds of appeal we should indicate that we have
been taken at some length by Mr McGrath and indeed by Mr Pascall
through the notes of the pre‑disciplinary meeting on
4 February 2009, as well as part of the notes of the disciplinary
hearing itself in April and May 2009. We have also been referred to a few
passages in part of the notes of the hearing before the appeal on 25 June 2009
but, as we have already indicated, we are concerned with the Judgment of the
Tribunal.
15.
There are effectively four grounds of appeal. The first, Ground 1,
is that the reasoning of the majority does not comply with Meek v City of Birmingham District Council [1987] IRLR 250. We were referred by
Mr Pascall, and there is really no challenge to the correctness of these
authorities, to the decisions in Meek; Tran v Greenwich Vietnam Community
[2002] IRLR 735; Sarwar v SKF UK Ltd [2010]
UKEAT/0355/09 (an unreported decision of this Tribunal); English v Emery Reimbold and Strick
[2002] EWCA Civ 605 at paragraphs 6(3) and 19; and Greenwood v NWF Retail Ltd
UKEAT/0409/09, and finally Fuller v The London Borough of Brent
[2011] EWCA Civ 267. The law is well known. Mr Pascall submits that if
one looks at the two paragraphs dealing with the majority’s reasoning, it is
not Meek compliant, to use the phrase used by Sedley LJ in Tran
and widely adopted thereafter. We agree. Reading that passage in
paragraph 53, the critical part seems to us to be this:
“The Governors formed a view as to the seriousness of that
conduct and the majority did not differ from their view or, even if they
privately did, they recognise their obligation not to substitute their view for
a view reasonably held by the Governors.”
16.
Two matters arise there. The first is that, “The Governors formed a
view as to the seriousness of that conduct and the majority did not differ from
their view.” That is simply a bald statement of agreement with the
disciplinary panel of Governors and the appeal panel of governors. In this
case there were six separate charges. This Tribunal would have expected the
majority to analyse, first, the charge; second, the evidence; and third, reach
a conclusion. They have not done so in respect of any of the six charges. The
second concern goes to the question of reasonableness. The sole reason given
by the majority is that the acknowledgement of fault on the part of the
Claimant demonstrates to the majority that the Governors’ beliefs were
reasonably held. Again, there is no analysis. In the course of his very
cogent submissions Mr McGrath took us to what he called, “the admissions
made by the Appellant,” at the pre‑disciplinary hearing, the disciplinary
meeting and the appeal meeting, and we readily acknowledge that he made cogent
submissions as to why the majority were entitled to reach the conclusions that
they did. The difficulty with that submission is that it simply does not
appear in paragraph 53 or indeed anywhere else in the Judgment; there is
simply no analysis.
17.
Ground 2 relates also to paragraph 53 and, indeed,
grounds 1 and 2 really, we think, run together. For the reasons
that I have just given, we think that the Appellant succeeds on Ground 2
as well.
18.
Ground 3 relates to the reasonableness of the sanction of
dismissal, and in essence is that the Tribunal were wrong in placing any or any
significant weight to the submission made at the disciplinary hearing by the
Appellant’s trade union representative that the issue whether to summarily
dismiss or issue a final written warning was open to the panel.
Mr Pascall argues that the real issue is not what the trade union
representative thought but that the Tribunal had a separate and free‑standing
duty to consider the options open to the Respondent in the light of its own
disciplinary procedures. It is important to look at what the Tribunal said in
relation to sanctions. Paragraph 54 says this:
“As to the issue of sanction, we recognise that other employers
may have imposed a lesser sanction. They accept the submissions made by
Mr McGrath that, at both the disciplinary and the appeal hearing, an
experienced Trade Union Officer conceded, on behalf of Miss Rustamova,
that it was an open issue for the Governors to consider whether the Claimant’s
conduct amounted to such a fundamental breach of trust to mean that she could
never work at the school again or, at the appeal, that a final written warning
would have been a more appropriate sanction. The majority therefore conclude
that the Governors cannot be criticised for forming the view that dismissal was
the appropriate sanction and, at any event, could not conclude that dismissal
was outside the band of reasonable responses.”
19.
I put to Mr McGrath at the close of his submissions that the
Tribunal do not appear in that paragraph, which is the only one that deals with
sanction, to have dealt with the reasons given by the Respondent; they are
contained at the end of the letter written by Mrs Bradbury, the Chair of
the Disciplinary Committee, and appear at appeal bundle page 72, which I
have already read. There is simply no discussion of page 72 in
paragraph 54 of the majority Judgment. We were told, and obviously
accept, that Mrs Bradbury and Mr Good both gave evidence at the
Tribunal about reasons for finding that this was a case of gross misconduct,
and that therefore summary dismissal was appropriate, but there is simply no
reference in the Judgment to that and indeed certainly no consideration in
paragraph 54 of that evidence. Again, we would have expected a full
analysis from the majority. On the face of it paragraph 54 seems to
suggest that the only reason they found that the Governors could not be
criticised for forming the view that dismissal was the appropriate sanction or
that dismissal was not outside the band of reasonable responses was a
concession or statement made by the trade union officer at the hearing. We
have looked at what the trade union representative said at both hearings, but
in effect she was leaving it to the Respondents to reach a decision. As we
say, we allow the appeal on Ground 3 because of the lack of analysis of
reasons. We do not accept Mr Pascall’s submission that this Disciplinary Panel
cannot consider the submissions made by a representative and take them into
account; not to do so would negate the purpose of having a representative there
at all. Likewise they are entitled to take into account the representations
made at the disciplinary hearing by Mr Ball, but that is a matter of
weight in both cases; it does not exempt the majority from carrying out a
reasoned analysis of the reasons given by the employer for (a) finding gross
misconduct and (b) finding that a dismissal was within the band of reasonable
responses of a reasonable employer. This whole case, of course, has to be read
against the background of British Home Stores Ltd v Burchell
[1978] IRLR 379.
20.
Ground 4 is a perversity challenge. The test for perversity is
well known; see Yeboah v Crofton [2002] IRLR 634 at
paragraphs 93‑95 (Mummery J). It is trite law that the hurdle
is a high one and we have carefully considered the submissions made by
Mr Pascall, but we do not think that the reasoning of the majority is
perverse in any of the four grounds that he sets out; we do not propose to go
through them in turn. This is a case not of perversity but of absence of
reasoning. For those reasons we allow the appeal on Grounds 1, 2 and 3
and dismiss the appeal on Ground 4.
Remedy
21.
Mr Pascall asks us to dispose of this case by remitting it to the
same Employment Tribunal to give its Reasons in the light of our Judgment.
Mr McGrath agrees, and so the order we are going to make is that the case
be remitted for a further hearing before the same Employment Tribunal, to be
read in the light of this Judgment. It does not mean that further evidence can
be called, but we would expect the Employment Tribunal to receive submissions
from both parties before it reaches its Judgment.