United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS JOHANNA DARBY (of Counsel) Instructed by: Gateshead Council Civic Centre Regent Street Gateshead NE8 1HH
For the Respondent	MR ABOU KAMARA (Representative) Free Representation Unit 6th Floor 289-293 High Holborn London WC1V 7HZ


 


SUMMARY

UNFAIR DISMISSAL – Reasonableness of dismissal

A teacher already on formal written warning for misconduct was dismissed for making a racist joke in hearing of staff and pupils. The Employment Tribunal upheld his unfair dismissal complaint on the basis that (a) there were no genuine grounds for belief of misconduct (despite direct evidence of more than one witness); (b) no adequate investigation (because employer did not interview pupils); and (c) dismissal outside range of reasonable responses. Appeal allowed. Plain case of Employment Tribunal substituting its own view and misdirecting itself about burden of proof. Remitted to different Tribunal.

MR RECORDER LUBA QC

Introduction

1. This is an appeal by Gateshead Council, hereafter referred to as 'the Council', against a decision of the Employment Tribunal sitting in Newcastle upon Tyne. The Employment Tribunal upheld a complaint of unfair dismissal brought by the Council's former employee, Mr Ian Hope. The Employment Tribunal delivered its written decision in September 2010.

Factual Background

2. Mr Ian Hope had been a teacher employed by the Council since January 2004. He was deployed in a specialist unit concerned with assisting pupils who otherwise faced the risk of a breakdown in their placements in mainstream education for reasons related to their behaviour.
3. In September 2008 Mr Hope was suspended temporarily from his employment following the Council's receipt of allegations concerning his conduct in relation to other members of staff. The Council looked into the allegations and a disciplinary hearing took place in February 2009. That hearing was chaired by a Mr Campion, who headed the relevant department of the Council.
4. He found at least some part of the allegations proved and decided it was appropriate to deal with the matter by way of a final written warning. The letter containing the warning was dated 18 February 2009 and indicated that any future misconduct may trigger further disciplinary proceedings which might result in dismissal. Mr Hope did not appeal against the decision to give this final written warning.
5. On his return to work, which we assume took place shortly thereafter in February 2009, Mr Hope was redeployed to another of the Council's specialist centres for children with behavioural problems. In October 2009, that is to say some eight months or so after his return to work, Mr Hope was again suspended by the Council. This suspension related to two matters of conduct relating to his interaction with both pupils and staff.
6. The Council, again, carried out investigations including an investigatory interview with seven other Council staff and with Mr Hope himself. The process culminated in a disciplinary hearing in December 2009. The hearing was, again, conducted or presided over by Mr Campion. He was satisfied that there had been misconduct. He decided that in the light of the fact that Mr Hope had already received a final written warning, the appropriate step to take was to dismiss him from the Council's employment.
7. Mr Hope appealed against that decision utilising the Council's appeals procedure, but his appeal was dismissed. In March 2010 Mr Hope presented his complaint to the Employment Tribunal. At a hearing in June 2010 the Employment Tribunal heard evidence from Mr Hope and, on behalf of the Council, evidence was given by Mr Campion and four other members of the Council's staff. We have been told today that subsequent to the oral hearing a sequence of written submissions were made by both the Council and Mr Hope.
8. Having considered the evidence and, no doubt, the written submissions, the Employment Tribunal found that in respect of the most recent allegations of misconduct Mr Campion had been satisfied that there had been misconduct, but that he had no reasonable grounds for believing Mr Hope to be guilty of the matter that was particularly held against him, that was to say the making of a racist joke.
9. Further, the Tribunal held that the Council had not carried out a reasonable investigation because most particularly it had not interviewed two pupils involved in the more recent allegation relating to that joke. The Employment Tribunal went on to hold that, even if it were wrong on the preceding matters, the response of the Council in dismissing Mr Hope was outside of the broad range of reasonable responses open to an employer faced with misconduct of this nature. That last finding must be put in the context – a context to which we will return - of the Tribunal noting that the conduct in question was different in nature to the conduct relating to the earlier disciplinary proceedings.
10. It is against those conclusions and against the ultimate decision of the Employment Tribunal that the Council brings this appeal.

The Relevant Law

11. Before we turn to the grounds of appeal, it is appropriate to have regard to the relevant statutory provisions. They are contained in two sections, 94 and 98 of the Employment Rights Act 1996. The former provides the statutory right for employees not to be unfairly dismissed. Section 98 of the Act fleshes out that right and it provides in subsection (1):

"In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held."

12. By dint of section 98(2)(b) the conduct of the employee is one of the reasons identified in the statute. Section 98(4) provides:

"In any other case where the employer had fulfilled the requirements of subsection (1), 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."

13. Those statutory provisions are accurately reproduced in the Employment Tribunal's Judgment in section 3 of its written decision. The Tribunal were evidently taken to the leading authority on conduct dismissals, that is to say the case of British Home Stores Ltd v Burchell [1978] IRLR 379. The Tribunal directed themselves at paragraph 3.2 that that decision required:

"The Tribunal to consider whether the Respondent held a genuine belief in the Claimant's guilt, if so, was that belief held on reasonable grounds and at the time that it formed that belief had it carried out as much investigation into the matter as was reasonable in the circumstances."

14. The Tribunal directed themselves that that was a threefold test which they then sought to apply. But as to the law they also directed themselves in paragraph 3.2:

"Once the Burchell test has been considered the Tribunal should ask itself whether the decision to dismiss the Claimant fell within the band of reasonable responses open to an employer in the particular circumstances of the case."

It ended that paragraph with this sentence: "The Tribunal must not substitute its own decision for that of the employer".

15. No issue is taken by either party with the correctness, or otherwise, of the Tribunal's distillation of the relevant statutory provisions or its summation of the Burchell case. In our judgment, the distillation offered is accurate.

Submissions on the Primary Ground of Appeal

16. Having set out a very limited summary of the factual background and the relevant statutory provisions, we now turn to the grounds of appeal. There are four grounds. For reasons which will become apparent, we will consider first in this Judgment ground 2 of the grounds. By that ground the Council complains that although the Tribunal correctly directed itself that it must not substitute its own view of the matter for that of the employer, it in practice in this particular case failed to apply that approach when considering the basis on which the Council had formed its belief and taken the decision to dismiss. In short, to put it in the terms advanced by Ms Darby, counsel for the Council, this was a case of "substitution" of the Tribunal's view for that of the employer.
17. Ms Darby developed her submissions on this second ground of appeal in three parts. First, she took us to the question which the Tribunal had to answer as to whether the Council had had reasonable grounds for its belief that Mr Hope had been guilty of the conduct alleged. She sought to demonstrate that the Employment Tribunal had substituted its own view of the evidence that had been before Mr Campion, rather than asking whether his view had been a reasonable one on the material before him.
18. She reminded us of the uncontested evidence as to what material Mr Campion had had before him. Nothing would be served by our setting out the detail of it at any length. She reminded us also of the evidence that Mr Campion had himself given to the Tribunal. At paragraph 2.11 of their written decision the Tribunal recorded in line 4:

"Mr Campion told the Tribunal that he felt that there was strong evidence in relation to the first joke".

Further in the same paragraph: "The evidence in respect of the joke incident was conclusive".

19. That, therefore, was the evidence of the decision taker as to his assessment of the weight of the material before him. Ms Darby, through her written submissions and in her skeleton argument, draws our attention to the fact that the Tribunal's conclusion on this issue was to hold that there were no reasonable grounds for the employer's belief that there had been the misconduct alleged. She submits that the use of the term "no reasonable grounds" suggests that the Tribunal had taken an absolutist view of the matter and she coupled her reference to that terminology with the mention by the Tribunal later in the written decision, at paragraph 4.4, that the finding "was not based upon any reasonable investigation".
20. The Employment Tribunal heard evidence from at least some of the witnesses who had given their evidence to Mr Campion. The Employment Tribunal formed for itself a less favourable view of the kitchen assistant, or dinner lady, Ms Hallas, who had heard the racist joke in question. The fact is that there were other adult witnesses, as the Tribunal record, giving secondary evidence of the precise same terms in which the joke was made. The Tribunal heard evidence itself from a further adult witness, albeit an indirect witness, Gail Gordon, but makes no mention of her evidence.
21. Taking all those matters in the round, Ms Darby submits, this is a clear case in which the Tribunal has substituted its own view of the material supporting the decision to dismiss, rather than asking itself the question whether there were reasonable grounds for Mr Campion's own assessment that the allegation was made out.
22. The second dimension of Ms Darby's submissions deals with the Tribunal's approach to the quality or calibre of the investigation conducted by the Council. She submits that the Employment Tribunal clearly formed and expressed the view that the employer's investigation was inadequate because it had not interviewed two pupils who may have shed further light on what was said. However, she submits, that the duty on an employer is not to make every conceivable inquiry but only to do such as is reasonable. She cites in support of that proposition the well-known case of Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23. That, she reminds us, is like this case; a case in which it was asserted that the employer had gone wrong by not approaching another person who might have been approached for evidence. In the event the employer's investigation could be reasonable and appropriate, even if such witnesses were not approached.
23. The Employment Tribunal, Ms Darby reminded us, hold at paragraph 4.2 that in this particular case they:

"[…] felt that an appropriate and reasonable step for the Respondent to take was for Ms Aciero or another senior member of staff to interview the two pupils S and J to obtain further information […]."

24. Ms Darby submitted that the question for the Tribunal was not whether further or other steps could have been taken but whether what was done in the circumstances was reasonable. She asked rhetorically in her written and oral submission why a reasonable employer in this environment could not reasonably have considered interviewing two pupils unnecessary in the light of the other information available.
25. The third feature of Ms Darby's submissions under this second ground of appeal related to the Tribunal's approach to the evaluation of witness evidence and, in particular, the assessment of the evidence of Ms Hallas, the dinner lady. The Tribunal hold at paragraph 2.10 of their written decision that they found "Ms Hallas to be an unconvincing witness".
26. The proposition urged upon us by Ms Darby is that the approach taken by the Tribunal is contrary to the well-known principle established in the case of Linfood Cash and Carry Ltd v Thomson [1989] IRLR 235, that it is not for the Tribunal to substitute its own evaluation of a witness for that of the employer. She took us in particular in her skeleton argument to paragraphs 22 to 23 of the decision in Linfood.
27. What the Tribunal did not do, submits Ms Darby, was make a finding that Mr Campion could not reasonably have accepted what Ms Hallas had said as being truthful when he received the information from her, accompanied as it was by the reports of others. Those then were the submissions of Ms Darby on this second ground of appeal.
28. Mr Kamara, appearing for Mr Hope, submitted that this was not a case of error by the Employment Tribunal, but was a case in which the Tribunal had correctly directed itself in law that it must not substitute its own view for that of the employer and that it had remained faithful to that direction throughout.

Conclusions

29. We remind ourselves that we should be particularly cautious about interfering with the decision of an Employment Tribunal that has, in express terms, correctly directed itself in law in its written decision, particularly on the basis that it then departed from its own self direction. Without hesitation and unanimously we are of the view that in this case the Employment Tribunal did depart, and significantly depart, from the direction it had correctly given itself as to the law.
30. In our judgment each of the three limbs of Ms Darby's attack on the Tribunal's Judgment under this ground are well made. We consider that the matters we have recounted at some length from her submissions do evidence a departure from the proper and correct approach. As is often said, context is all. We remind ourselves that this particular context is of an employee who is a teacher. He is necessarily, therefore, in a position of trust. Furthermore, this particular teacher was dealing with behaviourally disturbed young people who were already having difficulties in mainstream education. He was already on a final written warning when the matter of the racist joke arose.
31. Here the Tribunal have found in turn that the employer had no reasonable grounds for believing that the misconduct had taken place, had conducted no reasonable investigation and had reached a decision to dismiss which was outwith a range of reasonable responses. We are satisfied from the terms of the Tribunal's Judgment and the submissions upon it made by Ms Darby that this is a case in which the Employment Tribunal were plainly failing to examine the relevant questions from the perspective of whether the employer's responses were reasonable but were rather substituting their own views.
32. On this ground, therefore, this appeal will be allowed. It is in those circumstances, strictly unnecessary to go to the three other grounds of appeal but since they have been dealt with in the written submissions and, to an extent, in oral argument, we shall deal with each of them in turn.
33. Firstly, ground 1. Ground 1 of the grounds of appeal asserts that the Tribunal misdirected itself in law. As we have already indicated, the Tribunal correctly set out the relevant statutory provisions and correctly distilled the leading authority. However, they made no mention in their summary of the relevant law as to the standard or burden of proof. The complaint made under ground 1 of the grounds of appeal is not simply that the Tribunal failed to remind themselves expressly of the questions of standard or burden of proof but rather that the Tribunal, in the event, misdirected themselves as to the burden of proof.
34. It was common ground before us that the correct position on the burden of proof is that once an employer has established before the Employment Tribunal a legitimate reason for dismissal, the question of whether the dismissal was reasonable in the circumstances is one upon which neither party bears a burden of proof. To put it another way, the burden of proof may be, at that stage, treated as neutral. It is sufficient to mention by way of authority in support of that proposition the Judgment of HHJ Peter Clark of this Tribunal given in the Sheffield Health & Social Care NHS Foundation Trust v Crabtree UKEAT/0331/09 at paragraph 15.
35. The Council's case on this ground is that the Employment Tribunal wrongly treated the burden as falling on the employer and, thus, misdirected themselves. In support of that proposition, Ms Darby relies on the terms of paragraph 4.2 of the Tribunal's decision. The relevant part of paragraph 4.2 with emphasis added by our underlining reads as follows:

"The Tribunal considered whether or not the Respondent had carried out as much investigation into the matter as was reasonable in the circumstances. The burden upon an employer in such circumstances is not such that it is required to do everything that is possible to investigate the allegations but it is required to do what is reasonable in the circumstances. Where the possible outcome is dismissal the burden upon the employer must be greater than where the possible outcome is a verbal or written warning. In this particular case the Tribunal felt that an appropriate and a reasonable step for the Respondent to take was for Ms Aciero or another senior member of staff to interview the two pupils […]."

36. Later in the same paragraph the Tribunal say this:

"The risk inherent in giving such instructions [to its staff] is that those colleagues may feel that they were under an obligation to report something back and as their views were subjective and could easily have been misconstrued or taken out of context the burden upon the Respondent was to exercise the utmost caution […]."

37. Thus it is, submits Ms Darby, that upon three occasions in one paragraph in the conclusions section of their Judgment the Tribunal have referred to the 'burden' and the only sensible understanding of the sense in which that is used by the Tribunal is in relation to the burden of proof.
38. For Mr Hope, Mr Kamara submitted that there was here no misdirection as to burden of proof and that the word 'burden', although used three times in this paragraph, was being used in a context quite other than that of the burden of proof on the parties in an Employment Tribunal hearing. Mr Kamara was driven to accept, we think correctly, that it may have been better if the term 'burden' had not been used in this paragraph or, to put it in the terms Mr Kamara did in his submissions, that this paragraph might better have been "properly worded".
39. On this ground, we were minded that it might reasonably be suggested that this was simply a grammatical slip and that the Tribunal might have better used alternative terminology to express itself but was not misdirecting itself as to the relevant law. However, given the finding we have made as the error of approach made by the Tribunal under ground 2, it seems to us that there is sufficient here to demonstrate that the Tribunal was, again, going wrong in law.
40. The phrase used by the Tribunal upon three occasions is in turn as follows from paragraph 4.2: "the burden upon an employer"; "the burden upon the employer"; and latterly: "the burden upon the Respondent". We remind ourselves that this is a reserved written decision delivered by a legally qualified Tribunal Judge. It is highly unlikely that the Judge would have used terminology such as that other than in a context in which she was describing a burden of proof. In those circumstances we are satisfied that, taken with ground 2, ground 1 is made out.
41. Ground 3 of the grounds of appeal is summarised by Ms Darby under the heading "Inconsistent Reasoning". Her submission, put very shortly, is that the Tribunal were inconsistent in their handling of the two separate disciplinary investigations. She draws our attention to those passages in the Judgment which deal with the first disciplinary investigation and which conclude with the Tribunal indicating that it would not make findings of fact as to whether the outcome of that investigation had been fair or otherwise.
42. Yet, she submits, right at the end of its decision the Tribunal says in the final sentence of paragraph 4.4: "This alleged misconduct was substantially different to that of the first written warning […]." She, therefore, submits in support of ground 3 that there is an inconsistency here. The Tribunal, she asserts, must, in order to be consistent, first find as a fact what was the subject matter of the first disciplinary investigation and warning and then, secondly, make express findings about the subject of the second, or latter, disciplinary investigation in order to demonstrate that they were substantially different.
43. Although we consider that there is something in those submissions, we are satisfied by Mr Kamara's rejoinder to them that they are, in any event, immaterial. The full sentence from which we have read already in paragraph 4.4 is that:

"This alleged misconduct was substantially different to that of the first written warning but in any event as the Tribunal found that the second finding of misconduct was not based upon any reasonable investigation and that the decision to dismiss fell outside of the band of reasonable responses the dismissal in such circumstances had to be unfair."

44. The "but" in that sentence is significant. It demonstrates that the Tribunal were materially finding against the Council in relation to the reasonableness of its investigation and the decision to dismiss on other grounds, rather than simply a contrast in nature between the earlier and latter subject matters of investigation. We would, therefore, not allow the appeal on ground 3.
45. That leaves ground 4, which is a 'reasons' challenge. We can say shortly that we would not have allowed the appeal on a reasons basis alone. However, the reasons given do suffice to show that the Employment Tribunal erred in the respects already identified. There would be no point, and nothing would be gained, in us examining further what findings or reasons the Tribunal might otherwise have given.
46. In those circumstances and for those reasons we shall allow this appeal on ground 2 and also on ground 1. It is sufficient in those circumstances for our order to be that the appeal be allowed. The question then arises as to whether we are sufficiently confident about the matter to substitute our own decision for the decision that the Tribunal gave, or whether the matter should be remitted. We take the view that it would be appropriate in the circumstances of this case for the matter to be remitted for a complete rehearing before a differently constituted Employment Tribunal and that is the order we shall make.