United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0522/12/JOJ

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

 

 

At the Tribunal

On 18 April & 17 May 2013

Judgment handed down on 11 July 2013

 

 

Before

THE HONOURABLE MR JUSTICE KEITH

MR C EDWARDS

MS S M WILSON CBE

 

 

 

 

THE GOVERNING BODY OF STORY WOOD SCHOOL AND

CHILDREN’S CENTRE APPELLANT

 

 

 

 

 

 

MRS S JONES RESPONDENT

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MS SOPHIE GARNER (of Counsel) Instructed by: Birmingham City Council Legal Services PO Box 15992 Birmingham B2 2UQ
For the Respondent	MS SAMANTHA COOPER (of Counsel) Instructed by: Thomsons Solicitors The MacLaren Building 46 Priory Queensway Birmingham B4 7LF

 

 

SUMMARY

Unfair dismissal - Constructive dismissal

 

Tribunal expressing itself in unusually robust language – whether tribunal lost its objectivity – whether tribunal identified sufficiently the conduct of employer which caused employee to resign – whether some of the tribunal’s findings of fact were findings which tribunal could not reasonably have reached.

 

 

 

THE HONOURABLE MR JUSTICE KEITH

Introduction

1. The claimant, Mrs Sandra Jones, was employed at a nursery school now known as Story Wood School and Children’s Centre (“the school”) from 21 October 2001. The school’s governing body was her employer. On 29 July 2011, she wrote to the chairman of the governing body giving notice of her resignation from her employment, which was treated by everyone as expiring on 31 August 2011. In due course, she brought claims of unfair dismissal and of having been subjected to a detriment for having made protected disclosures. She subsequently withdrew the latter claim, and it was only her claim of unfair dismissal which proceeded to a hearing, her case being that she had been forced to resign by the way she had been treated by the school’s head teacher, Mrs Jo Jones, and to a lesser extent by her deputy, Mr Alan Beale. An employment tribunal at Birmingham (Employment Judge Lloyd presiding) upheld her claim of unfair dismissal, and the school now appeals against that finding to the Employment Appeal Tribunal. Since the claimant and the head teacher have the same surname, we shall refer to Mrs Sandra Jones as Mrs Jones and Mrs Jo Jones as the head teacher. All the dates in this judgment refer to dates in 2011 unless otherwise stated.

 

The sequence of events

2. The events leading up to Mrs Jones’ resignation were not really in dispute, and the tribunal summarised them in paras 1-4 of its judgment. Mrs Jones was employed by the school as its pastoral care manager. She had been designated as the member of staff responsible for child protection issues. She was also responsible for running the school’s breakfast club. 

 

3. Two families with close connections to the school were to feature in the events which led up to Mrs Jones’ resignation. One was a family described by the tribunal as the K family. The mother in the family was referred to as SK. She was an employee of the breakfast club. There had been issues concerning the welfare of her children “because of neglect and generational sexual abuse”. The local authority, Birmingham City Council (“the Council”), had previously commissioned Alan Hassall of the NSPCC to work with the family. SK had wanted Mrs Jones to be the member of staff at the school who dealt with the child protection issues relating to her children, and Mrs Jones was authorised to discuss the family with other professionals. The other family was the family of a former chairman of the governing body and a justice of the peace, who the tribunal referred to as Mr X. Mrs X was another employee of the breakfast club. There had been child protection issues in respect of Mr X’s family as well. Mr X had told Mrs Jones in the past that one of his two adopted daughters had accused him of sexual abuse, and she had been removed from the family home. The daughter of that daughter attended the breakfast club.

 

4. On 25 May, the head teacher spoke to Mrs Jones about two things. First, she raised her concerns about the way Mrs Jones had handled an incident on 19 May when Mrs Jones had had to speak to SK about SK shouting at a pupil. The head teacher said that Mrs Jones had told SK off and had made her feel unappreciated. Secondly, the head teacher told Mrs Jones that on the previous two days Mr X had taken the keys for the breakfast club to SK’s home and had asked her to go into work early to open up the club. He had told SK that Mrs X was unwell and was unable to go to work. Mrs Jones was concerned about that. She told the head teacher that she had a “gut feeling” that Mr X’s actions were not appropriate. She felt that Mr X was using his position to groom SK and her children. She was uncomfortable about Mr X’s presence at the school, even though he was ostensibly there to see his granddaughter. The head teacher and Mr Beale had previously removed unsuitable volunteers from the school based on what Mrs Jones had reported to them, and Mrs Jones thought that the head teacher would do the same thing with Mr X. In fact, the head teacher took no action over Mr X at that stage.

 

5. On 7 June, Mr Hassall telephoned Mrs Jones to discuss the recommendation he was going to make to the Council that SK should be assessed to see whether she was capable of recognising sexually inappropriate behaviour in her family. Mrs Jones mentioned her concerns about Mr X to him.  She went into greater detail with him about those concerns than she had mentioned to the head teacher, since she told him about similar concerns which other members of staff had about Mr X. On 8 June Mr Hassall wrote to the head teacher about what Mrs Jones had told him. His letter said that Mrs Jones had not given him a name or any information by which Mr X might be identified, but it resulted in Mrs Jones being asked to see the head teacher. They met on 10 June. The school bursar was there taking notes. Mrs Jones’ evidence to the tribunal was that the head teacher was angry with her about speaking to Mr Hassall about Mr X. The head teacher denied that she had got angry, but she acknowledged to the tribunal that she had been disappointed that Mrs Jones had spoken to Mr Hassall about Mr X. She thought that Mrs Jones should have raised the matter with her. She believed that that had been a breach of confidentiality, and that Mrs Jones had not followed protocol. Mrs Jones repeated her concerns about Mr X, and told the head teacher about allegations by the school’s cook that Mr X had behaved inappropriately towards her and another member of staff, and by another member of staff that Mr X was sexually aroused when he spoke to her.

 

6. The upshot of that meeting was that the head teacher removed Mrs Jones’ responsibilities for child protection issues from her. A few days later staff were informed by the head teacher that in the future any child protection issues should be referred to her or Mr Beale, and the head teacher gave instructions for all the posters at the school which showed Mrs Jones as responsible for child protection issues to be removed. They were replaced with new ones which did not name Mrs Jones, and callers would be informed that Mrs Jones was no longer dealing with these issues. There was an issue about whether the removal of those responsibilities was intended to be permanent (as Mrs Jones thought it was) or whether it was intended to be temporary pending an investigation about whether it had been appropriate for Mrs Jones to have involved Mr Hassall (which is what the head teacher said she had intended it to be). The tribunal found that the head teacher had in fact intended it to be permanent. Either way, Mr X continued to visit the school. The following day the head teacher assessed the risk which Mr X posed. She recommended that Mr X be supervised when visiting the breakfast club, and that he should not be allowed behind the counter where staff worked. He would be spoken to about that, and reminded that he was permitted to go to the breakfast club only to supervise his granddaughter.   

 

7. The head teacher reported what she believed to have been a breach of the appropriate protocol to the Council in its capacity as the local education authority. The advice she received was that the breach of protocol should be investigated by Mr Beale. He wrote to Mrs Jones on 13 June informing her that a formal investigation was being undertaken under the school’s disciplinary procedure. The investigation was to be into her conduct in speaking to Mr Hassall. In doing so, she was alleged to have (a) failed to follow the appropriate protocol and guidelines which had resulted in the head teacher no longer having any confidence in her ability to perform her responsibilities relating to child protection issues competently, (b) failed to set an example of personal integrity and professionalism, and (c) totally breached confidentiality in respect of information relating to the school and to the people associated with it. He required her to meet him as part of his investigation on 20 June. Although that meeting took place, the tribunal made no findings about what was said at the meeting or its outcome.

 

8. On 1 July, an incident occurred over a child referred to by the tribunal as DC. Her mother was not allowed to collect DC from school, and DC was usually collected by her grandmother. On the day in question, DC’s mother came to the school to collect her. Mrs Jones was asked by another member of staff about the arrangements for the collection of DC, but she declined to give that information saying that she was no longer responsible for child protection issues. That incident resulted in Mrs Jones being asked to see the head teacher. They met on 4 July. Mr Beale was there. The head teacher accused Mrs Jones of being obstructive, and said that by not giving any information about the arrangements for DC’s collection, she had put DC at risk. Mrs Jones told the tribunal that the head teacher and Mr Beale had been aggressive to her, and had turned their swivel chairs on her when they had finished speaking to her. They denied that.

 

9. On 7 July, SK told Mrs Jones about various things which Mr X had said to her and about something she had seen him do. They raised child protection issues. Mrs Jones made a detailed note of what SK had told her, and gave it to Mr Beale on 12 July. Mrs Jones was called in to see the head teacher that day. The head teacher told her that she was disappointed that Mrs Jones had passed on SK’s claims when she had been asked not to deal with child protection issues, and formally suspended her from her duties pending the possibility of disciplinary proceedings. The tribunal did not disbelieve Mrs Jones’ claim that the behaviour of the head teacher and Mr Beale that day had bordered on the aggressive, and that it was only tempered by the presence of Mrs Jones’ representative. As we have said, Mrs Jones resigned a few weeks later on 29 July. She had been offered another job (albeit at a significantly lower salary) a few days previously. Indeed, she acknowledged in the tribunal that she had been looking for a new job, but she claimed that her decision to leave the school had been in direct response to how the head teacher and Mr Beale had treated her.

 

The tribunal’s findings

10. The tribunal’s judgment was expressed in unusually robust language. It stated its overarching view in para. 11 of its judgment in the section headed “Findings of fact”. That was that the assessment by the head teacher and Mr Beale of Mrs Jones was “acutely unfair” as it was “coloured” by “unreliable” gossip on “the grapevine”, which gave rise to “a preconception” of Mrs Jones as “a difficult and confrontational person”, and took no proper account of (a) Mrs Jones’ “years of unblemished” performance of her responsibilities in connection with child protection issues, or (b) of “the very difficult, socially deprived and often hostile environment in which she had to work”. The upshot was that the head teacher and Mr Beale had “exceeded their reasonable stewardship of school affairs by taking a demeaning and uncorroborated view of [Mrs Jones’] character and her competence in the role of pastoral [care] manager”. The head teacher thought that Mrs Jones had “too much” responsibility when it came to child protection issues, and that had led the head teacher to believe that Mrs Jones was not capable in that role and that her judgment was not to be relied upon. This “mindset” and the head teacher’s actions which followed from it were “a flagrant denial of the committed contribution” which Mrs Jones had made to the school over the years. It led to the “marginalisation” of Mrs Jones’ position which had been the head teacher’s “underlying agenda”, and the “tainting of her reputation” with colleagues and those who used the school, and amounted to “a cumulative undermining not only of [Mrs Jones’] job but also of her integrity and self-esteem”. The tribunal rejected what it described as the “unsupported … allegations of [Mrs Jones’] shortcomings”. It said that “in an environment sadly characterised by hostility on the part of parents, wider families and individual pupils [Mrs Jones] did her very best in the discharge of her proper duties”.

 

11. The tribunal expressed its findings about the sequence of events in the last few months of Mrs Jones’ employment in para. 12 of its judgment in the section under the sub-heading “Further findings”. The tribunal was critical of the criticisms Mrs Jones got for raising her concerns about Mr X. Telling Mr Hassall about them had not amounted to a breach of good faith or confidentiality on her part. Even if those concerns had been no more than “a gut feeling”, expressing them had been not only her “proper function”, but also a matter for “the serious and immediate attention” of the head teacher, especially as the concerns were being expressed by “someone experienced in pastoral issues” and socially dysfunctional families. Once Mrs Jones had brought her concerns to the head teacher, responsibility for addressing them rested with the head teacher. Mrs Jones had not warranted “the fobbing off” which the tribunal believes she had got. The head teacher’s reaction to Mr Hassall’s letter was “all too consistent with her dismissive yet confrontational attitude” to Mrs Jones, and it was likely by then that Mrs Jones “could do no right” in her eyes. The head teacher and Mr Beale “were blinkered by their almost obsessive view of [Mrs Jones] as a domineering loose cannon”, and Mrs Jones’ actions in speaking to Mr Hassall about Mr X had provided “a springboard” for the head teacher to implement “her underlying agenda” of marginalising Mrs Jones. Mrs Jones’ “inevitable culpability” in reporting concerns about “a well-known individual was seen as a self-fulfilling prophecy”. The reluctance on the part of the head teacher and Mr Beale to investigate Mr X, to whom they had albeit briefly been responsible, was probably because they considered him to be in a special relationship with the school and the community, though in the case of Mr Beale, the tribunal thought that there was a degree of reticence on his part in questioning the head teacher’s views, certainly in actually challenging them.

 

12. The tribunal found that the bursar’s notes of the meeting on 10 June did not “adequately convey the hostility of that meeting in terms of the way in which [Mrs Jones] was ‘ambushed’” by the head teacher over Mr Hassall’s letter. The decision announced at that meeting to remove Mrs Jones’ responsibility for child protection issues on the “assumption of breach of confidentiality by her was at best cavalier and at worst autocratic and vindictive”. It was “demeaning and humiliating to [Mrs Jones] on every personal and professional level”. The way in which staff were informed that Mrs Jones would no longer have the responsibility caused “considerable embarrassment” to Mrs Jones, and was bound quite unjustifiably “to call into question in the minds of others her competence and her integrity”. The tribunal evidently accepted Mrs Jones’ evidence that her name had been “airbrushed” from anything to do with child protection issues.

 

13. The tribunal did not think that the incident relating to DC added much to “the evidential mix”. It noted that Mrs Jones’ response at the time “might at one level have been seen as a little selfish and unprofessional”, but Mrs Jones by that time “could rightly feel ostracised from what she had been at the centre of for so long”. It found that Mrs Jones’ handling of SK’s claims had been consistent with the “sense of obligation which she had exhibited all along, and which had been the catalyst” for the removal of her responsibilities for child protection issues. And when it came to Mrs Jones’ suspension pending the possibility of disciplinary proceedings, the tribunal made the point that the school had failed to identify what protocols or policies Mrs Jones had broken. The tribunal found that in retrospect the head teacher “probably recognised … her own lapses in safeguarding policy”, and as the saga unfolded, consciously or otherwise, she “attributed failures” to Mrs Jones.

 

14. In short, the tribunal described the head teacher’s attitude towards Mrs Jones as “little short of a ‘witch-hunt’”. The head teacher’s response to the genuine expressions of concern on Mrs Jones’ part was “at best entirely disproportionate, and at worst utterly groundless”. Mrs Jones’ reputation was likely to have been soured “wider than just the school community”. In the light of all this, it is not surprising that the tribunal concluded that “the accumulation of events amounted to a wholesale undermining of the trust and confidence in her employer which [Mrs Jones] should have been entitled to expect” from the head teacher and Mr Beale.

 

The language of the tribunal

15. In an appendix to the grounds of appeal, one of the members of the tribunal was criticised for questioning Mr Beale, and particularly the head teacher, aggressively. The member of the tribunal was said to have accused them of having already been on a campaign against Mrs Jones, and to have strongly implied that the head teacher had knowingly allowed a “paedophile” onto the school premises. However, Ms Sophie Garner (who represented the governing body both here and in the tribunal) disavowed any reliance on this aspect of the grounds of appeal, though she did say that the language which the tribunal used in its judgment was not just robust. It was pejorative, intemperate and vitriolic, and inappropriately so.

 

16. It is difficult to say when robustness ends and hostility begins, but there are dangers in a tribunal using language which is stronger than is appropriate. That applies to any judge, and not just to an employment judge. You lay yourself open to the criticism that you have lost your objectivity. It is one thing to want to tell it how it is, but it is quite another to do so in a way which might lead some people to think that you have abandoned your detachment, and that you have an agenda of your own. It was, we think, unwise for the tribunal to express itself in a way which was less than judicious. The use of moderate language indicates that you approach things in a measured way. The upshot of it is that the robustness of the language which the tribunal used in this case has caused us to subject the judgment to even greater scrutiny than might otherwise have been justified.

 

17. In addition to the robustness of its language, what made the tribunal’s decision unusual was the emphatic nature of its findings in para. 11 of its judgment about what lay behind the actions of the head teacher and Mr Beale. The tribunal found in effect that they did not think that Mrs Jones was easy to work with, that the head teacher doubted her capabilities and her judgment, and that had made the head teacher want to marginalise her. The argument here is that it had not been necessary for the tribunal to go this far. It would have been sufficient for the tribunal to make findings about the sequence of events which led up to Mrs Jones’ resignation, to deal with how they impacted on Mrs Jones, and to consider whether the treatment of her fundamentally undermined the mutual trust and confidence which had to exist between Mrs Jones and the school if their relationship was to work. The fact that the tribunal went as far as it did is said to show that it lost its objectivity, and did not approach the case with the detachment which one expects of a judicial body.

 

The tribunal’s reasons

18. Employment tribunals must give reasons for their decisions. As Bingham LJ (as he then was) said in the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250 at [8], those reasons need not be “an elaborate formalistic product of refined legal draftsmanship”, but they must contain “an outline of the story which has given rise to the complaint”, together with “a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts”. The bottom line is that the parties “are entitled to be told why they have won or lost”. But it is not just the parties who need to know that. There should be a “sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, [the Court of Appeal] to see whether any question of law arises”.

 

19. In an attempt to provide a structure within which adequate reasons for the decision can be given, the rules identify what the judgment of an employment tribunal must include. Rule 30(6) of the Employment Tribunals Rules of Procedure in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 require the written reasons for the judgment to include the following information (so far as is relevant for present purposes):

 

“(a)  the issues which the tribunal … has identified as being relevant to the claim; …

(c) findings of fact relevant to the issues which have been determined;

(d) a concise statement of the applicable law;

(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues …”

 

20. No-one could seriously say that they could not tell from the tribunal’s judgment why Mrs Jones won and the school lost. Ms Garner accepts that in that sense the judgment is “Meek-compliant”. But she says that the tribunal’s reasons did not state sufficiently the particular facts which had led to the tribunal’s conclusion or the precise legal route by which the tribunal had got there. To be precise, it is said that the tribunal’s judgment did not identify the particular conduct on the part of the head teacher and Mr Beale which gave rise to Mrs Jones’ claim that she had been constructively dismissed, and it did not state with sufficient precision what the legal test was for determining when an employee’s resignation can be treated as their dismissal.

 

21. (i) The test which the tribunal applied. As everyone knows, when an employee resigns, the test for determining whether their resignation should be treated as their dismissal is not whether their employers behaved unreasonably towards them, but whether their employers broke their contract of employment in some fundamental way. In many cases – and the present one is one of them – the term of the contract of employment which the employers are alleged to have broken is the implied term of trust and confidence, i.e. the term that the employers will not act towards the employee in such a way as is likely, or is intended, to destroy or damage seriously the trust and confidence between them which is at the heart of the working relationship between employer and employee. The question whether the employers behaved reasonably comes into its own when the fairness of the employee’s constructive dismissal is being addressed. It is a little artificial to have to ask what the reason for an employee’s dismissal was in a case of constructive dismissal, which is why in such a case it had been held that the reason for the dismissal of an employee who has been constructively dismissed is the reason why the employers behaved in the way which constituted the breach of contract. The issue then arises whether the employers acted reasonably in treating that reason as a sufficient reason for dismissing the employee. That is what the Court of Appeal said in Buckland v Bournemouth University Higher Education Corporation [2010] IRLR 445, though in that respect it was only confirming what had been decided in previous cases.

 

22. The school did not argue in the tribunal that, if Mrs Jones was found to have been dismissed, her dismissal was nevertheless fair. If Mrs Jones was found to have been dismissed, the only remaining issues would have been whether she would have been dismissed for misconduct had she not resigned, and whether she had contributed to her dismissal by her conduct, both of which would have reduced the compensation to which she would otherwise have been entitled. It follows that whether the head teacher, and to a lesser extent Mr Beale, had behaved reasonably towards Mrs Jones was relevant only to the extent that it helped the tribunal to resolve the critical question whether the school had broken the implied term of trust and confidence. The criticism of the tribunal is that it decided the question whether Mrs Jones had been constructively dismissed by deciding whether the head teacher and to a lesser extent Mr Beale had behaved unreasonably towards Mrs Jones, when reasonableness could only have come into the equation if the tribunal had been considering whether Mrs Jones’ constructive dismissal had been fair. And the reason why the tribunal made that error, it is argued, is because the tribunal did not state with sufficient precision what the legal test was for deciding whether Mrs Jones’ resignation amounted to her dismissal.

 

23. At first blush, that is a difficult argument to sustain. In the section of its judgment headed “The Law & the Arguments”, the tribunal said a number of things which ostensibly show that it appreciated that the test of constructive dismissal was a contractual one. It is true that the tribunal did not refer to Buckland even though Buckland had been cited to it. But as we have said, Buckland only confirmed what had been decided in previous cases. The tribunal referred to the case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 in which the contractual test was established. It referred to the implied term of trust and confidence, and the case of Malik v Bank of Credit and Commerce International SA [1997] ICR 606 in which the existence of that implied term was confirmed. It cited a lengthy passage from the case of Hilton v Shiner Ltd – Building Merchants [2001] IRLR 727 in which it was noted that the implied term of trust and confidence had been qualified in Malik by the requirement that the conduct which was complained of had to be engaged in without reasonable and proper cause. And it referred to Tullett Prebon PLC v BGC Brokers LP [2011] IRLR 420 which confirmed that whether there was a repudiatory breach of the implied term of trust and confidence had to be determined objectively, i.e. from the perspective of the reasonable person in the position of the innocent party. When summarising the arguments, the tribunal made repeated reference to the elements of trust and confidence, in particular to Ms Garner’s argument that the school’s conduct “did not amount to a fundamental breach of the implied term of trust and confidence”. And when the tribunal came to identifying in para. 10 of its judgment the issues it had to address, it said:

 

“We are satisfied that the primary questions for us are:

10.2 Whether there was a fundamental (repudiatory) breach by the [school] of the implied mutual obligation of trust and confidence in [Mrs Jones’] contract.

10.3 As part of that and for [Mrs Jones] to succeed in her claim she must have demonstrated by the evidence that she resigned in response to the serious breach in a timely fashion and not to have affirmed the contract in the light of any such breach.”

 

Finally, there was the tribunal’s conclusion which we have already quoted about the “wholesale undermining of the trust and confidence in her employer which [Mrs Jones] should have been entitled to expect” from the head teacher and Mr Beale.

 

24. All of this shows that the tribunal had in mind the correct legal test, even if it did not spell out that test fully, and we think that what the tribunal said in the section of its judgment headed “The Law & the Arguments” was sufficient, if not perfect, compliance with the requirement to include in the judgment a concise statement of the applicable law. Ms Garner’s argument therefore has to be that despite having the correct test in mind, the tribunal unwittingly applied the wrong test, perhaps because it thought that the behaviour of the head teacher and to a lesser extent Mr Beale had been particularly discreditable. That is where the language which the tribunal used comes in. It was so critical of the head teacher and Mr Beale that it is said that you cannot exclude the possibility that the tribunal was really deciding the issue of whether Mrs Jones had been dismissed by reference to the unreasonableness of their behaviour, especially as it did not refer to Buckland which identified the limited circumstances in which reasonableness comes into the picture. We do not agree. When dealing with behaviour which is said to have undermined the trust and confidence between employer and employee which is so necessary to a proper working relationship between them, it is sometimes difficult to avoid using language which focuses on the unreasonableness of the employers’ behaviour. It is the unreasonableness of that behaviour which will very often, though not invariably, amount to the undermining of the trust and confidence which the tribunal is considering. The fact is that the unusually robust language of the tribunal in this case was just as consistent with the tribunal deciding that the unreasonable conduct of the head teacher and to a lesser extent Mr Beale amounted to a breach of the implied term of trust and confidence as with the tribunal saying that their conduct was so unreasonable as to entitle Mrs Jones to resign.

 

25. There is a subsidiary point here. The tribunal was critical of the head teacher for having been critical of Mrs Jones’ conduct in telling Mr Hassall her concerns about Mr X (even though she did not name him) and in passing on SK’s claims about Mr X when Mrs Jones had ceased to be responsible for child protection issues. The tribunal is criticised for substituting its own view of Mrs Jones’ conduct for that of the head teacher. There would have been some substance to that criticism if Mrs Jones had been actually dismissed, rather than constructively, for that conduct. In that situation, the tribunal would have had to consider whether it was reasonably open to the head teacher to conclude that that conduct really was misconduct, and whether it was sufficiently serious to justify the invocation of disciplinary proceedings which could lead to Mrs Jones’ dismissal. But those questions did not arise. The issue for the tribunal was whether, when viewed objectively, the head teacher had behaved towards Mrs Jones in a way which was likely, or intended, to destroy or damage seriously the trust and confidence between Mrs Jones and the school. In order to decide that question, the tribunal had to come to its own view about Mrs Jones’ conduct (as well as what lay behind the actions of the head teacher), because only then could it sensibly assess whether the head teacher’s response to it undermined that trust and confidence.

 

26. (ii) The facts which the tribunal found. The criticism of the tribunal here is that when one looks at the tribunal’s judgment as a whole, it was long on rhetoric and short on factual analysis. It did not identify with sufficient precision the particular conduct on the part of the head teacher and Mr Beale which was found to have undermined the necessary trust and confidence between Mrs Jones and the school, and it failed to explain why that conduct had been engaged in without reasonable or proper cause.

 

27. We acknowledge that the robustness of the tribunal’s language has made it less easy than might otherwise have been the case to identify what the tribunal regarded as the particular conduct of the head teacher and Mr Beale which amounted to the breach of the implied term of trust and confidence. But in the final analysis, it is not that difficult to see what that conduct was, and why the tribunal thought that it had been engaged in without reasonable or proper cause:

 

(a) The criticism levelled at Mrs Jones on 10 June for speaking to Mr Hassall about Mr X was unjustified. There was no evidence of any protocol which she had breached. Nor was confidentiality breached because Mr X’s anonymity had been preserved. Indeed, Mrs Jones had been right to relay her concerns about Mr X to Mr Hassall: it had been her “proper function”.

 

(b) The way the criticism had been levelled at Mrs Jones on 10 June was inappropriate. Mrs Jones had been given no warning of the criticism and she was treated in a hostile fashion.

 

(c) The decision that Mrs Jones should no longer be responsible for child protection issues was unjustified. She had in truth done nothing wrong, and the head teacher had acted vindictively in removing that responsibility from Mrs Jones.

 

(d) The way in which that decision was announced was inappropriate. It resulted in considerable embarrassment for Mrs Jones and was likely to be viewed by others as a reflection on her competence and integrity.

 

(e) The decision to undertake a formal investigation under the school’s disciplinary procedure was unjustified. It was based on the flawed view that Mrs Jones had acted in breach of protocol and confidentiality by speaking to Mr Hassall about Mr X, whereas in truth it had been her duty to take such steps as she thought were appropriate when it came to Mr X.

 

(f) Mrs Jones’ suspension for disclosing to Mr Beale SK’s concerns about Mr X was unjustified for the same reasons.

 

28. There are a number of related points here. First, these findings of the tribunal mirrored the contents of the ET1 and a document which Mrs Jones’ counsel, Ms Samantha Cooper, handed to the tribunal at the beginning of the hearing identifying in some detail the conduct on the part of the head teacher and Mr Beale which was said to amount to the breach of the implied term of trust and confidence. In her written submissions at the end of the evidence, Miss Cooper summarised that conduct in headline form. That summary included for the first time an allegation that in addition Mrs Jones had been the victim of inconsistent treatment at the hands of the head teacher. That inconsistent treatment was said to have taken two forms. First, she had herself been treated inconsistently at different times. For example, she had been criticised for not disclosing to other members of staff the arrangements for the collection of DC, whereas she had also been criticised for disclosing to Mr Beale SK’s concerns about Mr X. Secondly, she had been treated inconsistently when compared with other members of staff. The allegation here was that other members of staff would not have been investigated to determine whether disciplinary action should be taken against them for doing what Mrs Jones had done in disclosing to Mr Hassall her concerns about Mr X, and other members of staff would not have been suspended with a view to disciplinary action being taken against them for doing what Mrs Jones had done in disclosing to Mr Beale SK’s concerns about Mr X. The tribunal was alive to this new allegation because it referred to it when summarising the case advanced on Mrs Jones’ behalf, but one of the criticisms of the tribunal is that it did not make any findings about it.

 

29. We do not think that that omission undermines the tribunal’s decision. The tribunal was not obliged to deal with every point which was raised. If it had agreed with the complaint of inconsistency, that would have been yet another reason why the implied term of trust and confidence had been broken. If it had not agreed with the complaint of inconsistency, it would still have decided that the implied term of trust and confidence had been broken.

 

30. Secondly, in the section of its judgment headed “The Law & the Arguments”, the tribunal summarised the conduct on the part of the head teacher and Mr Beale which was said to amount to the breach of the implied term of trust and confidence. But instead of summarising the conduct identified in the document handed to the tribunal at the beginning of the hearing, it repeated the headlines of that conduct in Ms Cooper’s closing submissions. It is said that those headlines were different from the conduct referred to in detail in the document handed to the tribunal at the beginning of the hearing. The criticism of the tribunal is that it did not tell Ms Garner that it was going to treat the headlines in the closing submissions as the conduct which had to be looked at rather than the conduct identified in far greater detail in the document handed to the tribunal at the beginning of the hearing. The “agenda” for the hearing therefore changed without the school having been given an opportunity to deal with the new way in which Mrs Jones’ case was being advanced.

 

31. We cannot accept this argument. Apart from the new allegation of inconsistency of treatment, the headlines in the closing submissions were just that – headlines. They did not purport to be a substitute for, or a derogation from, the conduct of the head teacher and Mr Beale set out in greater detail in the document handed to the tribunal at the beginning of the hearing. In any event, when you look at the whole of the tribunal’s judgment, it is plain that the tribunal considered the conduct of the head teacher and Mr Beale identified in the document handed to it at the beginning of the hearing.

 

32. Thirdly, the tribunal referred in glowing terms to Mrs Jones’ employment at the school. We have already mentioned the tribunal’s reference to her “years of unblemished” performance of her responsibilities in connection with child protection issues. But it also spoke of her having been “a long-standing, committed employee of the school”, whose performance reviews had confirmed her to be “a capable and conscientious manager of pastoral care issues”. In contrast, the tribunal said nothing about the background of the head teacher and Mr Beale. They had both begun to work at the school in 2008. They had been teaching for 23 and 21 years respectively at the time of Mrs Jones’ resignation. They were said to be highly respected professionals who had improved standards at different failing schools in areas of varying social deprivation. Again, we do not think that this omission undermines the tribunal’s conclusion. We acknowledge that the background of the head teacher and Mr Beale was important when it came to considering what lay behind their actions, but of greater importance was how their actions impacted on Mrs Jones, since the tribunal was having to decide whether their actions amounted to a repudiatory breach of the implied term of trust and confidence when viewed from the standpoint of the reasonable person in Mrs Jones’ position. Her years of unblemished service were an important factor in that determination.

 

The tribunal’s findings of fact

33. The tribunal’s ultimate conclusion about whether there had been a repudiatory breach by the school of the implied term of trust and confidence was based on a series of findings of facts which all contributed to that conclusion. Some of those findings are said by Ms Garner to have been findings for which there was no evidence or which were so against the weight of the evidence that the tribunal could not reasonably have reached them. There are seven of them, and we must deal with each in turn.

 

34. (i) The reason for the removal of Mrs Jones’ responsibility for child protection issues. The tribunal found that the reason why Mrs Jones’ responsibility for child protection issues had been removed from her was because she had told Mr Hassall about her concerns over Mr X. The argument advanced on behalf of the school is that that was not the finding which the tribunal should have made in the light of all the evidence. It is true that the head teacher had questioned Mrs Jones’ right to raise her concerns over Mr X with Mr Hassall, but her real criticism of Mrs Jones was that Mrs Jones had told Mr Hassall much more about Mr X than Mrs Jones had told her. Mrs Jones had merely told her that she had “a gut feeling” about Mr X, whereas she had told Mr Hassall that there had been allegations of abuse made against him in the past, and that members of staff had raised concerns about Mr X’s behaviour. That was the head teacher’s own evidence, and it was borne out by (a) the note taken of the meeting on 10 June by the bursar, the accuracy of which has never been challenged, (b) a note on the Council’s records of the complaint which the head teacher had made about Mrs Jones, namely that Mrs Jones “did not follow protocol and guidelines by raising concerns with [the head teacher] first”, and (c) Mrs Jones’ own witness statement.

 

35. There is no doubt that Mrs Jones told Mr Hassall things which she had not told the head teacher. Her evidence was that the school’s cook had not wanted her complaint about Mr X to go any further (and that is what the bursar’s note says Mrs Jones told the head teacher at the meeting on 10 June). But the issue is whether that was the principal reason why her responsibility for child protection issues was removed from her, or whether it was simply because she had spoken to Mr Hassall about her concerns over Mr X. On that issue, we do not think that the evidence was anything like as clear as Ms Garner says it was. The bursar’s note referred to the head teacher twice telling Mrs Jones that her conduct amounted to “a breach of confidentiality”. That strongly suggests that the conduct actually being complained of was the fact that Mrs Jones had spoken to Mr Hassall about her concerns over Mr X, rather than that she had not told the head teacher beforehand about the basis for those concerns. Moreover, the bursar’s note shows that the head teacher was more concerned with whether there was evidence which supported what Mrs Jones had told Mr Hassall, rather than with the fact that Mrs Jones had told Mr Hassall things which Mrs Jones had not told her: the note refers to the head teacher telling Mrs Jones a number of times that it was necessary to separate fact from opinion, and asking Mrs Jones repeatedly: “Is it fact?” And when you read Mrs Jones’ witness statement, it is plain that she was saying that although the head teacher had been angry with her because she had told Mr Hassall things which she had not told the head teacher, she was also saying that initially at any rate the head teacher had been angry with her because of the letter she had got from Mr Hassall. Of course the head teacher could have been put out because the letter told her that Mrs Jones had told Mr Hassall things which Mrs Jones had not told her, but she could just as well have been put out because the letter had revealed that Mrs Jones had spoken to Mr Hassall about Mr X. The upshot of all this is that the evidence cuts both ways, and it was for the tribunal to assess it. It cannot be said that it was not open to the tribunal to find that it was the fact that Mrs Jones had spoken to Mr Hassall about Mr X which was predominantly what the head teacher was criticising Mrs Jones for.

 

36. (ii) The justification for the removal of Mrs Jones’ responsibility for child protection issues and the setting up of the investigation. The tribunal found that Mrs Jones should not have had her responsibility for child protection issues removed from her, and that there should not have been an investigation into her conduct. It is argued on behalf of the school that that too was a finding which the tribunal should not have made. Apart from anything else, the head teacher’s decision to begin an investigation was based on the advice she had got from the Council. We do not see how this argument can be maintained in the light of the tribunal’s finding about what the reason was for the removal of Mrs Jones’ responsibility for child protection issues. Since the reason for that had been because she had spoken to Mr Hassall about Mr X, the criticism of Mrs Jones had to have been because that had constituted a breach of confidentiality. No question of breach of confidentiality could have arisen since Mr Hassall had wanted to speak to Mrs Jones about SK, and Mrs Jones’ concerns over Mr X related in part to her anxiety that Mr X may have been grooming SK and her children. In the circumstances, it would, as the tribunal found, have been wrong of her not to alert Mr Hassall to her concerns about Mr X.

 

37. (iii) Mr X’s presence at the school. The criticism of the tribunal here is that it was wrong for the tribunal to find that the head teacher had been wrong in permitting Mr X to remain on the school’s premises. If the tribunal had indeed made that finding, we would have agreed with this criticism of the tribunal. You cannot lightly exclude someone from the school’s premises with all that that entails. But the tribunal made no such finding. The tribunal merely found that the concerns which had been expressed by Mrs Jones to the head teacher about Mr X’s presence at the school had been ignored.

 

38. (iv) The head teacher’s and Mr Beale’s behaviour towards Mrs Jones at the meetings on 10 June and 12 July. The tribunal found that the head teacher had been hostile towards Mrs Jones at the meeting on 10 June, and it did not disbelieve Mrs Jones’ evidence that the behaviour of the head teacher and Mr Beale at the meeting on 12 July had bordered on the aggressive. The criticism of the tribunal is that these findings were against the weight of the evidence, bearing in mind that (a) it was contradicted not just by the head teacher and Mr Beale, but by the bursar as well, and (b) the bursar’s notes of the meeting on 10 June did not support the allegation of hostility. But as Ms Garner accepts, minutes of meetings rarely reflect their atmosphere, and it was open to the tribunal to prefer Mrs Jones’ evidence about the atmosphere at the two meetings.

 

39. (v) and (vi) The “ongoing campaign” against Mrs Jones and the “underlying agenda” to marginalise her. The criticism of the tribunal here is that there was no basis for the tribunal to conclude that there was an “ongoing campaign” against Mrs Jones, or that the head teacher had an “underlying agenda” to marginalise her. In fact the tribunal did not refer to an “ongoing campaign”. Those are Ms Garner’s words, but we take the two “findings” together, because they come to the same thing. The school’s case is that this really was where the tribunal went off on its own. The evidence was that Mrs Jones’ appraisals had always been good, and that no disciplinary action had been taken against her in the past. There was no justification for the tribunal to conclude that the head teacher was, in effect, “out to get her”.

 

40. That does not fit all that well with the things which the head teacher said about Mrs Jones in her witness statement to which we shall come in a moment, but we think that this argument misses the point. The tribunal was not saying that the head teacher had wanted to be shot of Mrs Jones for some time, even though the head teacher was critical of her, describing her as “delighting in the fact [that] parents and staff did not like her”. Indeed, Ms Garner agreed that the case put by Ms Cooper to the head teacher in cross-examination was that Mrs Jones’ attitude towards parents and other members of staff had not been anything like as bad as the head teacher painted it, but that the head teacher was only saying what she had because she wanted to see the back of Mrs Jones as she had resented the fact that Mrs Jones had spoken to Mr Hassall behind her back. It seems to us that that was what the tribunal accepted. What the tribunal was saying was that the head teacher was so annoyed by Mr Hassall’s letter and the fact that he was expressing concerns about Mr X’s presence at the school that she decided to take it out on the person who was responsible for getting Mr Hassall involved in the first place. There had not been a long-standing agenda to marginalise Mrs Jones. The decision to marginalise her had been the head teacher’s reaction to Mr Hassall’s letter. In our view, it was open to the tribunal to infer that the head teacher wanted to marginalise Mrs Jones for that from (a) the speed with which she removed Mrs Jones’ responsibility for child protection issues, (b) the public way in which that was announced, (c) the strength of the language in the letter of 13 June notifying Mrs Jones of the investigation into her conduct under the school’s disciplinary procedure, and (d) the head teacher’s extreme reaction when Mrs Jones drew SK’s new allegations about Mr X to Mr Beale. This was an unusually robust finding, but we cannot say that it was not one which the tribunal could not have reached.

 

41. (vii) The “unreliable gossip on ‘the grapevine’”. It will be recalled that the tribunal found that the head teacher’s and Mr Beale’s assessment of Mrs Jones was “coloured” by “unreliable” gossip on “the grapevine”. The tribunal never spelt out what that was, or where the evidence for it had come from, and it is said that the tribunal could not have found that it had played any part in how Mrs Jones was treated. In fact, the head teacher’s witness statement referred at some length to her view that Mrs Jones’ “social skills” were not that “professional”, her manner was “blunt and abrasive”, “she frequently upsets parents”, and there was “a steady stream of parents complaining about her attitude or how she dealt with their child”. The head teacher acknowledged in her witness statement that very few of the parents ever put their complaints in writing, though she referred at length to a few who did. In the circumstances, we think that it was open to the tribunal to make the finding which it did.

 

Conclusion

42. With all this in mind, we return to the complaint that this was a tribunal which lost its objectivity and got side-tracked from the real issues in the case by its own belief that Mrs Jones had been shabbily treated. We understand entirely where the school is coming from in the light of the strength of the tribunal’s language, but in the end we think that the findings it made about what the head teacher thought of Mrs Jones and what her agenda was in the months of June and July were findings which it was entitled to make. In the circumstances, we are unable to attribute those findings to a lack of objectivity on the tribunal’s part, though the tribunal (and particularly the employment judge who would have written the tribunal’s judgment) must take its share of responsibility for giving such an impression. We trust that the employment judge will be more circumspect about the use of inappropriate language in the future. .

 

43. For all these reasons, we do not think that any of the criticisms which have been made of the tribunal’s findings of fact or its reasons undermine the ultimate conclusion which the tribunal reached, and this appeal must be dismissed.