Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The claimant's appeal to the Upper Tribunal is disallowed. The decision of the Birmingham First-tier Tribunal dated 9 December 2010 involved no material error on a point of law, for the reasons explained below, and therefore stands.

 

REASONS FOR DECISION

 

1. This case raises some interesting and difficult questions about the relevance to the provision in section 19(6)(a) of the Jobseekers Act 1995 for a “sanction” (ie the identification of a period up to 26 weeks for which jobseeker’s allowance (JSA) is not payable) where a claimant has “lost his employment … through misconduct” of the provisions introduced into the Employment Rights Act 1996 by the Public Interest Disclosure Act 1998 (“the public interest disclosure legislation”). Those provisions provide protections against an employer in certain circumstances for an employee who is a “whistleblower”.

 

2. At the request of the claimant, and as his appeal was not supported by the written submission dated 9 June 2011 on behalf of the Secretary of State for Work and Pensions, an oral hearing of the appeal took place on 9 February 2012. He attended without any representative. The Secretary of State was represented by Mr Stephen Brown of DWP Legal Services. The claimant had very helpfully supplied a written note of his intended submissions, in case adverse weather prevented his attendance, but I thank both him and Mr Brown for their measured and thorough submissions.

 

The background

3. The decision under appeal to the First-tier Tribunal was made on 7 May 2010 and was that JSA was not payable to the claimant for the period from 11 May 2010 to 27 July 2010 (12 weeks) because he had lost his employment through misconduct. The tribunal described the circumstances as follows in its statement of reasons (I know that the claimant disagrees with some of the details, but the essentials are not in dispute). I have also anonymised several names to avoid the identification of the claimant in what will be a public document (the front sheet that he receives not being part of what is available to the public).

 

“2. [The claimant] had been in the employment of Birmingham City Council since 1998, his latest position being that of business manager at [a secondary school] from July 2008. On 11.05.2009 he was suspended from duty pending investigation into two disciplinary matters, one of which resulted in his dismissal on 15.12.2009.

 

 3. One of [the claimant’s] duties was to approve expenses from school staff. In April 2009 he noted what he regarded as discrepancies in a claim put in by the headteacher, his direct superior. Having had an exchange of emails with her following his request for clarification, he sent an email on 08.05.2009 to [T], the Principal Employee Relations Officer with the Children, Young People and Families Directorate at Birmingham City Council, attaching a copy of the headteacher’s claim form and raising his concerns. [The claimant] copied this email to the Chair of Governors and also to the school’s Senior Finance Assistant, the Finance Officer, the Administration Manager and the school caretaker, all of whom reported directly to [the claimant]. [The claimant] was suspended on 11.5.2009 and, following a disciplinary hearing on 10.12.2009, was dismissed for gross misconduct (page 9 in the appeal bundle).”

 

4. The letter at page 9 was in fact the letter dated 15 December 2009 from the chair of the governing body’s disciplinary panel informing the claimant of its determination that he should cease work at the school. His dismissal followed by the letter dated 16 December 2009 from Birmingham City Council. The letter of 15 December 2009 recounted that two allegations of gross misconduct had been made, the first of which it found substantiated and the second of which it determined would on its own have merited only a final written warning. Allegation 1 was described as follows:

 

“That on 8 May 2009 you acted in an unprofessional and inappropriate way by copying a confidential email concerning the Head Teacher’s … mileage claim and suggesting that she had submitted fraudulent expense claims to a number of members of staff, namely the caretaker …, the Senior Finance Assistant …, the Finance Officer …, the Administration Manager … and the Chair of Governors.”

 

The reasons for finding that allegation substantiated and that the claimant should cease to work at the school were stated as:

 

“That it was unprofessional and inappropriate to circulate the email concerning [the Head Teacher] to other members of staff and that by sending the email, you breached confidentiality and brought the integrity of the Head Teacher into serious disrepute.

 

That this incident has resulted in an irreparable breakdown in trust and confidence between you and the Head Teacher.

 

That the circumstances you cited during the disciplinary hearing for circulating the email were insufficient to mitigate the seriousness of the allegation.”

 

Copies of the two letters were supplied by the Council to the Department when enquires were made about the reason for dismissal.

 

5. I should summarise the contents of the email on 8 May 2009, a copy of which was, as noted below, before the tribunal of 9 December 2010. In the subject box was written “Fraud Investigation ? Advice”. The message was as follows:

 

“This is a relevant document (Head teacher – car allowance form – April 2009) which I have refused to sign.

 It should be the basis for an audit investigation, due to incorrect content presented to me by Head-teacher.

 With queries raised, she (Head-teacher) has also asked me to challenge issues (on 6.5.09) through one of the governors.

Please can you advise me, how to proceed with this matter. Should I be contacting Birmingham Audit directly.

 Incidentally, the Head-teacher requested the original copy yesterday (8.5.09) to discuss with Chair of Governors.

 I have copied in relevant staff who report directly to me, in case they are exposed to unnecessary comments/bullying.”

 

A copy of the expenses claim form appears to have been attached to that message. I am not sure whether a copy was attached of the email exchange with the Head Teacher on 6 May 2009 in which the claimant queried the claims for attending on-site meetings on two dates. But if it was, the Head Teacher had replied that journeys of that type had been authorised by the governors. The claimant’s much more detailed and extensive challenge to the claims on the form appears to have emerged at a later stage.

 

The appeal to the First-tier Tribunal

6. In his challenges to the decision of 7 May 2010 the claimant made clear that his case was that all his disclosures were protected under the public interest disclosure legislation, so that he should not have been dismissed by reason of them, and that he had made a claim to the employment tribunal in respect of his dismissal for that reason. A First-tier Tribunal began hearing the appeal on 29 October 2010, but adjourned for lack of time with directions that the claimant was to send a statement setting out the full background to his dismissal at least 14 days before the reconvened hearing date. This the claimant did in the statement starting on page 30, with nearly 100 pages of additional documents, including the email of 8 May 2009. Among the many points made, and simplifying a good deal, he explained that he had copied the email to key staff reporting to him to secure evidence for the fraud investigation and to protect them from bullying and collusion, as had been mentioned in the email itself, and (paragraph 31) to secure vital CCTV and door swipe card evidence. He also put forward the argument that the decision on whether to dismiss him should not have been taken until the Council had completed its enquiries, through its proper procedures, into his grievance against the Head Teacher that had been raised by his email, what he called his whistleblowing complaint. In effect, he argued that that decision should not have been taken until the Council had established whether it found the allegation against the Head Teacher of submitting incorrect mileage allowance claims was made out or not. In the statement the claimant made many criticisms of the treatment of his whistleblowing complaint, the outcome of which as notified in the letter dated 24 February 2010 from the Council (page 112) was conclusions that there was no evidence to support allegations of fraudulent activity by the Head Teacher, although her recording and start and finish mileages had not been in accordance with procedures. A hearing of his appeal against dismissal was held on 12 May 2010.

 

7. At the hearing on 9 December 2010, before a different legally qualified panel member, the claimant explained the roles of the staff to whom he had copied the email of 8 May 2009. The two Finance personnel would have handled the Head Teacher’s mileage allowance claim form before sending it to him. The caretaker was in charge of CCTV for the school. The Administration Manager was responsible for the computerised door swipe access system for the school. Part of his case was that the Head Teacher had not actually made a particular journey away from the school and back.

 

8. The tribunal disallowed the appeal. In its statement of reasons it said this:

 

“4. Misconduct has been described as conduct which, having regard to the relationship of employer and employee and the rights and duties of both, can fairly be described as blameworthy reprehensible and wrong (R(U) 2/77). It must be shown that the employee acted or failed to act as alleged, that the action can be described as misconduct and that that misconduct was why the employment ceased.

 

 5. The basic facts were not in dispute. [The claimant] confirmed that he had acted as alleged but argued that his actions did not amount to misconduct. I found that they did. [The claimant] was entitled to raise any genuine concerns he had in relation to expenses claims submitted to him and since the headteacher was his direct superior it was appropriate for him to go outside the school and raise the matter with the principal officer at Birmingham City Council. However it was thoroughly inappropriate to copy his e-mail to junior staff within the school since it must have been clear to him that this would call into question the integrity of the headteacher and undermine her relationship with her staff. [The claimant’s] explanation that he had circulated the e-mail to prevent bullying and to preserve evidence was not convincing.

 

 6. The letter of 15.12.2009 (page 9) following the disciplinary hearing made it clear that the misconduct lay in the circulation of the e-mail to junior staff and that this was why [the claimant] had been dismissed.”

 

The statement went on to explain why the tribunal considered that a period of 12 weeks’ non-payment of benefit (less six days for which JSA had not been claimed) was reasonable, although on the lenient side. In doing so the following factors were noted in paragraph 8:

 

“[The claimant] was dismissed for a single disciplinary offence and there was no violence or dishonesty. However he held a senior administrative post within the school in which he was employed. By circulating an e-mail suggesting financial irregularities on the part of the headteacher to other staff within the school, including the caretaker, he was committing a serious breach of trust and risked jeopardising the headteacher’s position before any investigation had been carried out. I did not doubt that he was well aware of that and his action could be regarded as more serious because of his age and experience and the position which he held.”

 

The appeal to the Upper Tribunal

9. I gave the claimant permission to appeal against the decision of the First-tier Tribunal, asking in particular whether there were errors of law in failing to consider or even mention the public interest disclosure legislation or in failing to consider whether to adjourn to await the outcome of the three linked cases before the employment tribunal. The Secretary of State’s answer in the written submission dated 9 June 2011, and as confirmed by Mr Brown in rather more detail at the oral hearing, was no to both questions. I deal with those questions in turn and then with other points made by the claimant.

 

The public interest disclosure legislation

10. The relevant provisions are sections 43A to 43L, 47B and 103A of the Employment Rights Act 1996, as inserted by the Public Interest Disclosure Act 1998 with effect from 2 July 1999. Section 103A provides that a dismissed employee is to be regarded as unfairly dismissed if the reason or principal reason for the dismissal was that the employee made a “protected disclosure”. Section 47B provides that a worker has the right not to be subjected to any detriment by his employer on the ground that he has made a “protected disclosure”. Then sections 43A to 43L define what is a protected disclosure for those purposes. Under section 43A there has to be a “qualifying disclosure” as defined in section 43B in accordance with any one of sections 43C to 43H.

 

11. The Secretary of State has not disputed that in the present case what the claimant did would come within the definition of “qualifying disclosure”. He disclosed information which, in his reasonable belief (the genuineness of his concerns not having been challenged), tended to show either that a criminal offence had been committed (section 43C(1)(a)) or that the Head Teacher had failed to comply with a legal obligation (section 43C(1)(b)). Without exploring what the differences might be between information and allegations of wrongdoing, the copy of the expenses form undoubtedly constituted information. The question which could arise is whether the disclosures were in accordance with any of sections 43C to 43H.

 

12. Section 43C covers a disclosure in good faith to the worker’s employer (including in that category disclosure to another person under a procedure authorised by the employer). Section 43D covers a disclosure to a legal adviser. Section 43E covers a disclosure to a Minister of the Crown by civil servants and similar workers. Section 43F covers a disclosure to prescribed regulatory bodies. Section 43G needs to be set out in full:

 

“(1) A qualifying disclosure is made in accordance with this section if—

  (a) the worker makes the disclosure in good faith,

  (b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

 (c) he does not make the disclosure for purposes of personal gain,

 (d) any of the conditions in subsection (2) is met, and

 (e) in all the circumstances of the case, it is reasonable for him to make the disclosure.

 

 (2) The conditions referred to in subsection (1)(d) are—

  (a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F,

(b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or

(c) that the worker has previously made a disclosure of substantially the same information—

 (i) to his employer, or

(ii) in accordance with section 43F.

 

(3) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to—

  (a) the identity of the person to whom the disclosure is made,

  (b) the seriousness of the relevant failure,

  (c) whether the relevant failure is continuing or is likely to occur in the future,

  (d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,

(e) in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and

(f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.

 

(4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.”

 

Section 43H covers a disclosure of an exceptionally serious failure, which is not in issue in the present case. I do not need to mention the other ancillary provisions.

 

13. Mr Brown’s submission for the Secretary of State was that those provisions were of only limited relevance. The statutory test for JSA purposes was in section 19 of the Jobseekers Act 1995. Some specific exemption for protected disclosures under the public interest disclosure legislation could have been added in 1999, but was not. That legislation was itself restricted to an effect on the rights of workers as against their employers not to be unfairly dismissed or to subjected to any detriment and to the statutory remedies in the employment tribunal that could follow from a breach by the employer. Mr Brown submitted that, although some of the same issues might arise as under the public interest disclosure legislation when considering whether, in the terms used in Commissioner’s decision R(U) 2/77, a claimant had done something blameworthy, reprehensible and wrong that was causally connected with the loss of employment, it was the latter test that was decisive. The broadness of that approach provided the flexibility to deal with the concerns that were the subject of the public interest disclosure legislation without the need for any formal link. He submitted that in the present case the tribunal had considered the issues of substance about the justification for disclosure of the information in the email of 8 May 2009 to all the person to whom it was sent, had come to a conclusion that it was entitled to reach in the exercise of its reasonable judgment and had clearly and succinctly explained its reasoning.

 

14. I cannot accept Mr Brown’s submission on the lack of relevance of the public interest disclosure legislation. In my view the situation is different from that discussed in the, now rather old, Social Security Commissioners’ decisions about the weight to be given to decisions of the industrial (now employment) tribunals on whether a claimant had or had not been unfairly dismissed (R(U) 2/74, R(U) 4/78 and R(U) 3/79). In R(U) 2/74 the then Chief Commissioner, Sir Robert Micklethwait, pointed out in paragraph 14 that that question was a different one from that raised by the provision for what was then called disqualification for misconduct, where the main emphasis was on the conduct of the employer, although the behaviour of the employee could be relevant. By contrast, in relation to disqualification the main emphasis was on the behaviour of the employee, although that of the employer could also be relevant. He stressed that there could be no question of the decision of the tribunal in one jurisdiction being binding on a tribunal in the other, although the evidence and findings of fact of an industrial tribunal would be evidence on which the social security authorities could rely, and sometimes particularly cogent evidence bearing in mind that both employer and employee are parties to those proceedings and that there will often be a much fuller investigation of the circumstances than in social security cases. Those points were taken up and confirmed in the later decisions. However, in my judgment the emphasis of the public interest disclosure legislation is very much on the behaviour of the employee. It establishes as a matter of public policy an area of action by an employee as legitimate that might otherwise have caused an employer to take some adverse action, including dismissal. Although it takes effect directly only in relation to the statutory employment tribunal remedies, it alters “the relationship of employer and employee and the rights and duties of both” (to use the words of the classic formulation in R(U) 2/77 as rightly referred to by the tribunal of 9 December 2010) and what should in that context be regarded as blameworthy, reprehensible and wrong. I would find it very hard indeed to justify any decision which found, whether or not a decision to this effect had been made by an employment tribunal, that the conduct that led to dismissal consisted only of protected disclosures, yet the employee concerned had nevertheless lost employment through misconduct.

 

15. Accordingly, the First-tier Tribunal erred in law by failing to address the claimant’s contentions on the relevance of the public interest disclosure legislation. But was that a material error of law, that could have made some difference to the outcome and did it justify setting the tribunal’s decision aside? After careful thought I have concluded that the answer is no. If the tribunal had considered the public interest disclosure legislation, it could not, on the basis of its conclusions of fact, have decided that the claimant’s disclosures relied on in the letter of 15 December 2009 from the governing body’s disciplinary panel were protected disclosures.

 

16. The explanation of that result requires some close analysis of the terms of the public interest disclosure legislation. First, assuming that the sending of the email to the officer of Birmingham City Council and probably to the chair of governors was protected disclosure under section 43C, disclosure to the other school employees could only be protected under section 43G. It is a necessary condition for such protection that it was reasonable to make the disclosure to the person in question (section 43G(1)(e)). The tribunal of 9 December 2010 had concluded that it was “thoroughly inappropriate” for the claimant to have copied his email to what it called “junior staff” (by which it meant in my view simply the staff who reported to the claimant, rather than indicating that their responsibilities were junior). Therefore, in my judgment, if the tribunal had specifically asked itself the section 43G(1)(e) question, it would have concluded that it had not been reasonable to make those disclosures. The tribunal of course did not consider the rather particular context of the public interest disclosure legislation, but the test of reasonableness in section 43G(1)(a) is a very general one, requiring consideration of all the circumstances. I cannot see that the tribunal ignored any relevant factors or took into irrelevant factors. It did take account of the justifications put forward by the claimant, but rejected them. In my judgment, it was entitled to do so in its evaluation of the evidence and the explanation, although brief, was adequate. It would be relevant to that consideration that there was a problem in seeing how the email of 8 May 2009, even if the 6 May 2009 emails were attached, would alert the staff recipients to the need to preserve evidence. The email of 8 May 2009 itself did not identify what the claimant said was incorrect in the car expenses claim or the specific dates under query. It would also have been relevant that at the stage the matters raised were of a fairly minor nature, the allegation that one or more journeys had not in fact taken place emerging only later.

 

17. Second, under section 43G(1)(d) it is also a necessary condition that one of the three conditions in subsection (2) is satisfied. Condition (a) is not satisfied, because there was on 8 May 2009 no reasonable belief that the claimant would be subjected to a detriment by disclosing to his employer or a regulatory body. Condition (b) is probably not satisfied, because the Audit Commission for England and Wales had been prescribed in the Public Interest Disclosure (Prescribed Persons) Order 1999, as amended, in relation to the proper conduct of public business and for fraud and corruption in local government bodies. If that was not in fact a relevant prescription in the education context, there would still have been a problem. The claimant’s fear that evidence might be concealed or destroyed appears to have stemmed from his having raised the issues with the Head Teacher rather than as a possible consequence of the disclosure to his employer. Under condition (c), the worker must have previously made a disclosure of substantially the same information to his employer. Here, the disclosure to the staff recipients was made at exactly the same time as the disclosure to the employer, by the electronic transmission of the email. I have grave doubt whether the mere fact that they were copied the email rather than being primary recipients could get within section 43G(2)(c). Section 43G seems to contemplate, in a case in which a worker has not initially been deterred from making a disclosure to the employer, a period after which, if the results are not satisfactory, a wider disclosure might become reasonable. However, so far as I am aware, there is no case-law authority on the interpretation of section 43G(2)(c) and as the point was not raised until the hearing on 9 February 2012 the parties did not have the opportunity to investigate the case-law. My conclusions are therefore only provisional, but would tend to be that the tribunal of 9 December 2010 would have decided that the claimant did not satisfy the condition in section 43G(1)(d) as well as not satisfying section 43G(1)(e).

 

18. For those reasons it would not have made any difference to the outcome if the tribunal had considered the public interest disclosure legislation and the failure to do so was not a material error of law justifying setting its decision aside.

 

The employment tribunal proceedings

19. As at 9 December 2010 the tribunal knew, from the record of proceedings of the hearing on 29 October 2010, that the claimant had three linked cases before the employment tribunal which were due to be heard in September 2011 with an estimate of two and a half weeks. One of those cases was no doubt a claim for unfair dismissal under section 103A of the Employment Rights Act, with possibly also a claim alleging detrimental treatment. At any rate, it would have to be decided in those proceedings whether the reason or the principal reason for the claimant’s dismissal was that he had made a protected disclosure. Thus, in line with my conclusions in paragraph 14 above, a decision of an employment tribunal in favour of a claimant on that issue would be especially cogent evidence that the dismissal was due to a protected disclosure, bearing in mind the experience and expertise of such tribunals and the depth of the investigation of the circumstances (as instanced here by the two and a half week hearing, albeit involving other issues). One could not of course rule out the potential existence of evidence or argument in any such case that would cast doubt on whether a First-tier Tribunal should also find that employment had been lost through a protected disclosure (eg if an appeal to the Employment Appeal Tribunal were pending or if there were some apparently clinching point of law indicating that the disclosure was not protected that had been overlooked or the emergence of some new evidence). However, in the present case adjourning would not merely have involved a delay until September 2011, but until after a decision was issued. The time that that would take was an unknown quantity (as at 9 February 2012 the claimant had had no notice of the issue of a decision). The claimant, although he had made the employment tribunal claims a major part of his case, did not specifically ask the First-tier Tribunal to adjourn to await the outcome of his claim under the public interest disclosure legislation. In those circumstances, I am satisfied both that the tribunal of 9 December 2010 was entitled to proceed to make a decision on the appeal before it without adjourning on that basis and, in view of the lack of a specific request for an adjournment, without giving reasons for not adjourning. It would have been better if the tribunal had at least mentioned the existence of the employment tribunal proceedings in its statement of reasons, but in my view it was not required to do so as a matter of law, so that the failure does not amount to an error of law under the heading of inadequacy of reasons.

 

20. I should perhaps add that I see no reason to defer the present decision to await the outcome of the employment tribunal proceedings. That outcome, whichever way it goes, would of course be very interesting, but it would only become relevant if I had first set aside the decision of the tribunal of 9 December 2010 for error of law, so that the claimant’s appeal against the decision of 7 May 2010 had to be redetermined on the facts. The outcome is not relevant to the question of whether the decision of the tribunal of 9 December 2010 involved any error of law.

 

The claimant’s other submissions on error of law

21. The other substantial point put forward by the claimant was that the tribunal erred in law by failing to deal with his contention that the Council had acted prematurely by dismissing him before it had investigated and reached a conclusion on his whistleblowing complaint, including the truth of his allegations against the Head Teacher. Thus, he had argued, he had not lost his employment through misconduct, but predominantly through his employer’s decision to dismiss him before all the circumstances had been investigated and established. The tribunal’s statement of reasons said nothing about that argument or about how far it considered that there was truth in what the claimant put in his email of 8 May 2009.

 

22. In my judgment, those issues were not relevant to the tribunal’s decision, so that it was not a material error of law for it to fail to deal with them, although again it would have been better if it had explained why in its statement of reasons. Under the public interest disclosure legislation it is not a condition of protection that the information disclosed should be accurate or that a criminal offence had actually been committed or a legal obligation not complied with. All that is required in general is a reasonable belief on the part of the person making the disclosure. Thus, there was no need to make findings on the accuracy of the claimant’s disclosure in order to deal the claimant’s case on the public interest disclosure legislation, which I have rejected in paragraphs 15 to 18 above. Similarly, the misconduct for the purposes of section 19 of the Jobseekers Act 1995 identified by the tribunal did not depend on the accuracy of the contents of what was communicated to staff reporting to the claimant on 8 May 2009. That came out in paragraph 8 of its statement of reasons in the reference to a breach of trust and the risk of jeopardising the Head Teacher’s position before an investigation had been carried out. Although that was in the part of the statement dealing with the proper length of the sanction it clearly related back to the identification of the misconduct itself in paragraph 5. Thus, the misconduct found lay in the communication of the allegation of irregularities in the expenses claim, with a suggestion that fraud was involved, to staff below the claimant in the chain of management before those matters had been established objectively by an investigation by the proper persons higher up the chain. Then the tribunal’s knowledge of the outcome of the claimant’s whistleblowing complaint (with the vindication of the claimant at least to the extent of acceptance that the Head teacher did not always record her starting and finishing mileages at the time that the journeys claimed for were made) did not alter the nature of that misconduct. It was within the area of reasonable judgment allowed for the tribunal of 9 December 2010 to conclude that what the claimant did on 8 May 2009 was misconduct through which he lost his employment, precisely because of the communication to staff before there had been a proper investigation.

 

23. The claimant has also in written submissions raised objections to his employer’s treatment of his grievances and complaints. In so far as they relate to things that happened after 16 December 2009 that cannot be relevant, because the question for present purposes is whether he lost his employment on that date through his misconduct. So far as they relate to failures to process grievances before that date they are not relevant for the reasons just explained. The fact that certain people who had been concerned with the December 2009 disciplinary panel hearing were ruled out of participation in the claimant’s appeal against his dismissal does nit indicate that they were biased or prejudiced in December 2009.

 

24. The claimant has also referred in Section 4 of his written note of submissions to many matters that he said came to light in the course of the employment tribunal hearing in September 2011. In particular, he pointed to evidence that the disciplinary panel had been told, in his absence, that the Head Teacher had said that she would resign if the claimant were reinstated in his job. He said in effect that that unfair pressure undermined the causal link between his conduct and the dismissal, as should have been considered by the tribunal of 9 December 2010. That point had been made in paragraph 36 of the claimant’s statement produced after the adjournment (page 33), supported by an extract from the minutes of the panel (page 98). The tribunal did not deal with the point, but in my view that was a matter of incidental detail. It did not indicate any clear unfairness in the proceedings before the disciplinary panel, because the claimant plainly knew well before the hearing on 10 December 2009 that there had been an irreparable breakdown in trust and confidence between him and the Head Teacher. And even if there had been some unfairness in that procedure, that would have fallen into the category of matters primarily to do with the conduct of the employer, rather than with the conduct of the employee, as discussed in R(U) 2/74 (paragraph 14 above). Therefore the tribunal did not go wrong in law by failing to mention the point.

 

25. The claimant raised a number of other criticisms of the tribunal’s statement of reasons which he said demonstrated a significant misunderstanding of the circumstances and of his case. For instance, he submitted that describing the staff to whom he copied the email of 8 May 2009 as “junior” undervalued their roles and the importance of informing them what was going on. In particular, he said that it was misleading to refer to the “caretaker”, whose proper title was Building Services Manager and who oversaw 10 staff as well as managing the CCTV/video system with 64 cameras around the school. As already noted, I do not see the use of the word “junior” as denoting anything other than that the staff reported to the claimant. Nor do I see anything wrong in referring to the caretaker when that was the term used in his email address. There is nothing to indicate that the tribunal did not have fully in mind the responsibilities of the caretaker/building services manager and why the claimant considered that he needed to be sent a copy of the email. The other criticisms are in my judgment merely matters of detail. In general, the tribunal, apart from the failure to deal with the public interest disclosure legislation, focused rightly on the central elements of the claimant’s case and gave clear and succinct reasons to explain to him why it rejected that case. The statement of reasons was not perfect, but the standard is not perfection. It is adequacy and that standard was fulfilled.

 

Conclusion

26. Accordingly, I find that the tribunal’s decision involved no material error of law justifying its being set aside and the claimant’s appeal to the Upper Tribunal is dismissed.

 

 

 

(Signed on original):  J Mesher

  Judge of the Upper Tribunal 

 

Date:  15 March 2012