Appeal No. UKEAT/0065/13/BA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON
EC4Y 8JX
At
the Tribunal
On
18 July 2013
Before
HIS
HONOUR JUDGE SHANKS
MRS R CHAPMAN
MR D NORMAN
(1)
GOVERNING BODY OF LIMINGTON HOUSE SCHOOL
(2) HAMPSHIRE COUNTY
COUNCIL APPELLANTS
MS M SMITH RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
The Appellants dismissed the Claimant for gross misconduct in
relation to two incidents following a disciplinary hearing. There was no
dispute that they had an honest belief that the Claimant had committed gross
misconduct nor that they had carried out a reasonable investigation. The Employment
Tribunal made findings about what had happened in the two incidents and on the
basis of those findings found that there was in fact no misconduct and that
there was no way that any employer could reasonably come to the view that there
was. The appeal was allowed because the ET had not referred to the very full
decision letter, had not expressly asked themselves whether there were reasonable
grounds for the belief the Appellants had reached and appeared to have
substituted their own findings for those of the Appellants. The matter
remitted to be reheard by a fresh ET.
HIS HONOUR JUDGE SHANKS
1.
This is an appeal by employers against a decision of the Employment
Tribunal sent to the parties on 19 December 2012. The Tribunal, sitting
at Havant, decided that the Claimant employee had been both unfairly and
wrongfully dismissed.
2.
The Claimant was a deputy head of the primary section of the Limington House School, which is a school with severe learning disabilities. She worked
there for 1 September 1996 until she was summarily dismissed on
12 September 2011. The dismissal arose out of two incidents
involving children that took place on 10 May 2011 and
11 May 2011. The Claimant was suspended on 8 July 2011,
and there was a governors’ disciplinary committee hearing on 12 September
followed by a nine‑page decision letter dated 14 September. The
letter at pages 34 to 43 of our bundle is on its face a careful document,
making full findings and coming to the view that she should be dismissed for
gross misconduct. There was also a very full appeal hearing, which took the
form of a complete rehearing, on 14 and 17 November 2011,
and that in turn resulted in an 11-page letter that upheld the decision to
summarily dismiss. That letter we have not really looked at; it is at
pages 44 and following.
3.
There is no dispute, at least for the purposes of this appeal, that the
governors who made the decision honestly believed that the Claimant was guilty
of gross misconduct, and there is no dispute that they carried out a reasonable
investigation, although the Tribunal makes some reference to being troubled by
the fact that the main investigator was the headmistress, who apparently had a
difficult relationship with the Claimant, but at least for today’s purposes
there is no dispute raised about that. The key question before the Employment
Tribunal and before this Tribunal was whether the governors who took the
decision to dismiss had reasonable grounds for their belief that the Claimant
was guilty of gross misconduct.
4.
The Appellant employers say that on this issue the Employment Tribunal
failed to consider the position from the point of view of the employers but
instead looked at their own findings of fact about the two incidents and allowed
those findings to seep into the decision so that they substituted their own
views for those of the employer, and on that rather depressingly familiar basis
they appealed to this Tribunal.
5.
The Employment Tribunal heard evidence from the Claimant herself, from
the headmistress who had carried out the investigation and from the two
governors who had respectively chaired the disciplinary and appeal hearings.
They also had a bundle running to 445 pages. It is worth noting at the outset
that the only evidence they heard that directly bore upon what had taken place
on 10 and 11 May 2011 was of course the Claimant’s
evidence.
6.
The Tribunal start their reasons, after introductory matters, by going
straight to the two incidents, 10 and 11 May 2011, and making
findings of fact about them. The first incident related to an occasion when
the Claimant had left a child unattended in the playground for a short period
of time, that child having soiled himself and there being a need to deal with
all the other children who were coming in from the playground. The Tribunal
made a number of findings of fact, which it is worth referring to at this
point. At paragraph 11 they say this:
“The claimant’s evidence is that she could see where E [the
child] was sitting and knew that he was alright and safe in that position
whereas other evidence suggests that she could not have actually seen where he
was. However what is important is that the evidence does clearly show that if
E had moved across the playground, or attempted to leave by either gates he
would clearly have been seen by the claimant and probably by several other
staff. It is suggested that E had a history of absconding. That appears to be
something of an exaggeration in that there had just been one incident a couple
of years before when doors and gates had been left open or insecure and he had
simply wandered out. There were no evidence [sic] of any problems since then.
How long he was alone on the playground is not clear but the best estimate
appears to be that it would be around three minutes.”
At paragraph 13 the Tribunal said this:
“It is suggested by the respondents that E was left in a
dangerous situation where he could have absconded from the play area. The
Tribunal accepts the claimant’s evidence that the gates would have been closed
and that he could not have opened them. She had checked them before the break
time and although she did not check them at the end they looked closed and
indeed the most crucial gate has a mechanism whereby it closes itself and
catches itself so if it was not properly closed it would have been open and
that would have been seen quite clearly by the claimant [sic].”
And in paragraph 14 they said this:
“It has been suggested to the claimant that there were various
alternatives open to her to get another member of staff to attend to the needs
to E immediately. The Tribunal do not accept that there was any significant
shortcoming in that respect.”
And then at the bottom of that paragraph the Tribunal said:
“[…] the actions the claimant took that day appear to be a
sensible decision and not one that could be described in any as misconduct
[sic]. The class teacher gave a statement saying if she had been on duty she
would probably have taken the same decision.”
7.
And then on the incident the following day, on 11 May, which
related to an allegation in any event that the Claimant had forced a child to
eat an apple unpeeled and uncut by way of some kind of punishment knowing that
he did not like apples in that form, the Tribunal made findings of fact at paragraphs 21 and 23.
At paragraph 21 the Tribunal recited that the case the employer was
running was that imposing an apple on the child was an inappropriate punishment
and that he should have been given a choice of what fruit he wanted. The
Tribunal went on to say:
“The Tribunal accepts the claimant’s evidence that she did not
intend it as a punishment but she simply thought apple was an appropriate thing
to say because she knew he did not like apple.”
And then the Tribunal say a bit later on:
“Regardless of exactly what was said what is important is that
the claimant knew there was no reason why the child should not eat apple. She
knew he just disliked eating apple.”
And at paragraph 23 the Tribunal say:
“The Tribunal accept the claimant’s evidence that she had said
to [the child] that he should have an apple because that was the first fruit
that came into her mind and that it was not a deliberate punishment.”
8.
Before turning to the appeal, we note that the matter was raised because
the headteacher received a complaint from a parent governor relating to the two
incidents, and apparently that parent governor had overheard conversations
between various members of staff about the two incidents; that simply fills the
gap as to how the matters came to be dealt with at the disciplinary hearing at
all.
9.
There was in addition to a claim for unfair dismissal a claim for
wrongful dismissal, and it is therefore permissible and indeed logical that the
Tribunal set out the findings as to what had actually happened at the beginning
of their Judgment. That process is understandable and logical, as we say, but
it does always introduce the danger that an Employment Tribunal, when it turns
to deal with unfair dismissal, will allow its own view of the facts to
influence their decision on whether an employee had reasonable grounds for any
conclusions they have reached.
10.
The Tribunal dealt with the question of unfair dismissal really at
paragraphs 31 to 34, possibly 35, of the Judgment. At paragraph 31
they say that they had taken a full note of all the evidence and all of the
submissions, and then they say:
“We are very aware of the importance that we must not substitute
our own views for those adopted by the respondents’ [sic]. What we need to
focus on is whether the respondents in deciding to dismiss the claimant came to
a decision that falls within the band of appropriate responses open to an
employer acting reasonably.”
They then say at paragraph 32 that so far as procedures are
concerned they make no criticism, and then at 33 they say this:
“We have noted the decision that the Governors came to initially
at the disciplinary hearing and then at the appeal hearing and fully accept
that the Governors were trying to do the best job possible. Nevertheless the
evidence is such that there is no basis upon which they could possibly have
concluded that either of the incidents amounted to gross misconduct. Indeed,
the more evidence we have heard over the last few days, the more it has become
clear to us that there was nothing that could even be described as misconduct.”
At paragraph 34:
“The evidence shows that there is nothing that could even amount
to misconduct certainly not gross misconduct.”
And then the final sentence of that paragraph says:
“We are therefore quite satisfied that there is no way that any
respondent could reasonably have come to the conclusion that what occurred
amounted to misconduct justifying dismissal.”
11.
At paragraph 35 the Tribunal speculate as to why or how the Governors
could have come to a decision that in the Tribunal’s eyes was so very wrong,
and the suggestion is that it may have been because the headteacher’s
representations on behalf of the employers were so forceful, and there is
mention elsewhere of a governor in question being inexperienced in holding such
hearings.
12.
Looking at those paragraphs, it seems clear to us that in this case the
Tribunal have indeed allowed their findings of fact about what happened to
influence and seep into their decision about whether there were reasonable
grounds for the belief that the governors came to that there had been gross
misconduct. It is notable that the Tribunal do not anywhere expressly ask themselves
the question that British Home Stores Ltd v Burchell
[1978] IRLR 379 invites them to as to whether there were indeed reasonable
grounds for their belief, and it is notable that in two places they refer to
evidence in the present tense that can only in our view be a reference to the
evidence that they, the Tribunal, had heard about the incidents and there does
not appear to be any reference to the evidence that was before the disciplinary
committee. It is noticeable also that the Tribunal do not refer at all to the
letter mentioned earlier running to nine pages, apparently on its face anyway a
careful and full job by the disciplinary committee hearing.
13.
It seemed to me, at any rate, that the high point of the Claimant’s case
so far as resisting the appeal in relation to unfair dismissal may be the last
sentence of paragraph 34, where the Tribunal said:
“We are therefore quite satisfied that there is no way that any
respondent could reasonably have come to the conclusion that what occurred
amounted to misconduct justifying dismissal.”
That, as a bald statement, would certainly stand up in reaching
the conclusion they did as to unfair dismissal were it not for the word
“therefore”;’ it seems to us that that can only be a reference back to the
evidence that they refer to in the preceding two paragraphs, which is all the
evidence that they had heard about the incidents.
14.
Mr Griffiths has addressed us with considerable force on behalf of
the Claimant. He suggests that the decision by the disciplinary panel was
unsupportable. He says the first matter was simply an operational decision and
with the second incident there was no reasonable inference to be drawn that the
Claimant gave the apple to the boy as a punishment, and he says that the
committee clearly set the bar too high. The problem with that is that the
letter sets out findings of fact and the Tribunal based their decision on other
findings of fact that they had made about what happened. He may be right that
the committee set the bar too high or that there was not the material for a
finding of gross misconduct, but the Tribunal do not seek to analyse that in
the way that they should have.
15.
So far as the finding of wrongful dismissal is concerned, the Tribunal
do not anywhere expressly address it in the body of their decision, although it
is clearly implied by item 2 in the Judgment, namely that the dismissal
was a breach of contract by the Respondents in that it was a dismissal without
notice. At one stage I for one was of the view that the appeal in relation to
wrongful dismissal could not succeed because the Tribunal had made their
findings about what actually happened; they were clearly relevant to the
wrongful dismissal element of the claim, and, the Tribunal having found that
there was nothing that could even amount to misconduct, the finding of wrongful
dismissal clearly followed. However, I am persuaded by Mr Self that the
Tribunal have not really addressed their minds at all to the question of gross
misconduct, they do not refer to any of the codes of conduct or matters that
are particularly relevant in dealing with special schools, they have not made
findings that are sufficiently clear in the earlier section to be sure that the
conclusion that there was no misconduct justifying instant dismissal can stand,
and, given our conclusions on unfair dismissal, we are of the view that the
whole matter should go back to the Tribunal, and we also allow the appeal in
relation to wrongful dismissal.
16.
It is unfortunate that the Employment Tribunal has gone wrong; the
matter must go back, we are afraid, to another Employment Tribunal to look at
afresh. When they are looking at the question of unfair dismissal, they must
concentrate on the employers’ procedures, on the evidence that the employers
had to consider and on the sanction that the employers decided on in the light
of relevant codes of conduct and, of course, the Claimant’s employment record
and so on, but what they must not do when they are thinking about unfair
dismissal is concentrate on what they find actually happened on
10 and 11 May. We have enormous sympathy, of course, with Ms
Smith, who has done nothing wrong to bring about this result, but unfortunately
the Tribunal must do their job properly, and so we send the matter back. We
would say that the ultimate result is by no means a foregone conclusion. The
points forcefully made by Mr Griffiths may prevail, but it has to be
analysed properly.
