Fletcher v. St Leonard's School [1987] UKEAT 25_87_1606

EAT
Fletcher v. St Leonard's School
[1987] UKEAT 25_87_1606 · 1987-06-16

LORD MAYFIELD :

The appellant was employed by the respondents as an assistant art teacher from 23 April 1985 until 31 August 1986. He was dismissed on that date. An industrial tribunal held that he had not been unfairly dismissed. He has appealed against that decision.The respondents admitted that the appellant had been dismissed and maintained that he had been dismissed for a reason which related to capability under the provisions of the Employment Protection (Consolidation) Act 1978, as amended. The respondents are an independent boarding school. Miss Hamilton has been headmistress for 16 years. She has full power to engage and dismiss members of staff and is responsible for the school syllabus.The industrial tribunal's findings in fact were that the appellant's appointment was made because there was a need for an additional teacher to be responsible for two-dimensional work.There were four teachers in the art department. It was made clear to the appellant that he was expected to work in close co-operation with other members of staff in the department, to be responsible for the art studio, and to take particular interest in graphics and design. Other matters entrusted to the appellant were the painting by pupils of part of the scenery for a Christmas play, for submission of designs for Christmas cards, and of cartoon illustrations for inclusion in the school gazette. He was given time during the summer of 1985 to allow him to adjust to the work of the department.The industrial tribunal found that it soon became obvious to the heads of the art department that the appellant's teaching was not up to the standard expected by the school, particularly with reference to preparation for examinations. In their opinion, the art work produced by the appellant's pupils for assessment before Christinas 1985 would have failed at internal assessment. As a result, the girls had to be changed from the normal internal assessment course to a set three paper course and the results achieved were one grade below that which the girls would have been expected to attain. Although staff meetings to discuss problems were held weekly, the appellant was unwilling to communicate with other staff members and appeared completely disinterested in what was being discussed. When the headmistress requested a report from the heads of department, she was informed that the appellant was not communicative and that he himself decided what he should do and was not concerned with the work of other members of the department The headmistress was also dissatisfied with the Christmas card designs and gazette illustrations submitted by the appellant and with the fact that his lower sixth pupils were engaged in painting scenery for the Christmas play, without having first produced sketches and designs for the scenery.On 26 November 1985, the headmistress wrote to the appellant expressing her concern about some of these matters and asking him to discuss his work with the heads of department. The appellant replied by letter dated 7 December 1985, to which the headmistress replied on 19 December 1985 in which she again urged the appellant to co-operate in discussions with other members of the department. On 13 February 1986, the headmistress again wrote to the appellant expressing her concern with various aspects of his work and indicating that if there was not a substantial improvement by the end of the term she would have to consider whether to give notice terminating his appointment. There was no improvement in the appellant's work and it became obvious to the headmistress that the appellant was not prepared to work in the manner she had indicated to him, although she conceded that he had genuine talent as an artist. At the request of the appellant, the headmistress had a meeting with him on or about 5 March 1986, when she informed him verbally that his services would not be required after the summer term. The headmistress confirmed the dismissal by letter dated 25 March 1986, in which she gave notice that his appointment was to he terminated as at 31 August 1986.The industrial tribunal then heard various submissions by the solicitor for the respondents and the appellant. They concluded that the respondents, as employers, had the right to decide on the standard of teaching required from their employees and on the period of time they would allow for any new employee to attain those standards. The industrial tribunal concluded that it was clearly established in evidence that the appellant had failed to meet the standards expected of him within a period of one year from the commencement of his employment, which the tribunal considered to be a reasonable trial period. The tribunal accepted that the standards set by the respondents differed from those in comprehensive schools, as St Leonard's endeavoured to cater for the individual requirements of their pupils. They therefore found that the reason for the appellant's dismissal related to his incapability of performing his work to the standard expected of him and that in the circumstances, and in accordance with equity and the substantial merits of the case, the respondents had acted reasonably in treating that as sufficient reason for dismissing the appellant. The dismissal was therefore fair.Counsel for the appellant made submissions under various headings, namely, procedure for dismissal; the absence of facts relating to the appellant's performance; and the procedure at the hearing. He submitted that there had been no genuine appraisal of the appellant's work as a teacher. The headmistress had written to the appellant in November 1985, but it was submitted she paid scant regard to his reply and to his replies to other letters. By early February 1986, she had already decided to dismiss the appellant and there was a note to that effect by the headmistress written by her prior to her letter of 13 February 1986, In that letter the headmistress expresses her disquiet about the progress of some of the girls under the appellant's instruction, and states she would have to consider his position very carefully indeed and, if necessary, give the required weeks notice. Counsel submitted that there had been evidence before the industrial tribunal relating to an objective assessment of the standards obtained by the girls but it had not been considered by the industrial tribunal. He submitted that the evidence accepted by the industrial tribunal was really opinion evidence. They had misconstrued the facts. There was no reference in the decision to objective standards. There was no justification for the conclusion that the appellant's dismissal related to his incapability of performing his work to the standard expected of him. His lack of capability as a teacher had not been established. Further, the appellant had tape-recorded a number of meetings with the headmistress and staff meetings, which would have supplied valuable evidence if the tribunal had found them to be admissible. The industrial tribunal had not acted reasonably in dismissing the appellant.Essentially, counsel for the respondents submitted that all the facts had been put before the industrial tribunal; that the appellant had received warnings and had been given the opportunity to improve; and that the industrial tribunal had not erred in law by refusing to admit transcripts of the tapes. The procedure both at the industrial tribunal and in relation to the appellant's dismissal had been satisfactory.As stated by the industrial tribunal, the appellant was employed by the respondents between April 1985 and August 1986. The industrial tribunal had before them evidence by the heads of the art department and the headmistress that the appellant's teaching was not up to the standard expected by the school, particularly with reference to preparations for examinations. Those findings were criticised on the basis that they were findings in fact based on opinions. It is clear to this Tribunal, however, that they were only arrived at after consideration of the various facts relating to the appellant's performance. Specific criticisms of the appellant's performance are made by the headmistress in her letters of 26 November 1985, 19 December 1985, 13 February 1986 and in the letter of dismissal dated 25 March 1986. Those letters, in our view, express wide-ranging dissatisfaction as to the appellant's performance in various aspects of his duties. The letters reflect not only the headmistress' own view but the views of the joint heads of the art department. Those views were accepted by the industrial tribunal.It was submitted to us that the industrial tribunal had not considered various matters which pointed to a more objective and favourable assessment of the appellant's performance. It appeared to us from the terms of the decision that the matter had been comprehensively considered by the industrial tribunal and that in the light of the short-comings of the appellant referred to by the headmistress in her letters and their comprehensive nature, that they were entitled to reach the conclusions set out namely in general terms that the appellant's teaching was not up to the standard expected by the school.Quite apart from the teaching aspect, it is clear that the industrial tribunal accepted the evidence before them that the appellant was not communicative with the other members of staff. It appeared from the findings of the industrial tribunal that the appellant had made tape-recordings of conversations between himself and the headmistress and of staff meetings. Transcripts were provided, lodged as a production, and were before the industrial tribunal.As counsel for the respondents pointed out, Rule 8 of the Industrial Tribunals (Rules of Procedure) (Scotland) Regulations 1985 confer on the tribunal a discretion as to what evidence be admitted. That rule states:-
"(1) The tribunal shall conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings; it shall so far as appears to it appropriate seek to avoid formality in its proceedings and it shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law."
According to the findings of the industrial tribunal, the chairman's refusal was based on the fact that the recordings had been taken without the knowledge or consent of the other parties. Neither counsel raised before us the position of such evidence in civil law. There have no doubt been cases where such evidence is admissible. Rule 8, however, states that a tribunal shall not be bound by a rule of law relating to admissibility before the Courts. They have to have regard to the just handling of the case. The chairman of the tribunal took the view that, in the circumstances it would not be just to admit such evidence. It is safe to assume that he thought that it would be unfair to allow the evidence. As stated, the transcripts were lodged before the tribunal. While we do not think the use of tape-recordings in such circumstances should be encouraged in this particular field, and there may be instances where recordings are admissible, we are not prepared to interfere with the discretion exercised by the chairman in the particular circumstances of this case. In any event, we were given a very brief summary of the transcript of these recordings and it did not appear to us that even if they had been admitted they would have made any difference to the decision. For example, it was stated that the headmistress had said that the appellant "did not fit in". It was suggested that that indicated that there was really no dissatisfaction with his work as a teacher. We do not consider, however, that if the headmistress made that statement that it is inconsistent with her evidence before the industrial tribunal and her views as expressed in the letters. No cogent extracts were referred to by counsel in relation to the transcripts.We are satisfied also that the headmistress had regard to the responses by the appellant to her letters. Indeed, in the letter of 19 December 1985 it is clear that she considered his letter of an earlier date in December. She continued to express a dissatisfaction with the appellant's performance by her letter of 13 February 1986, by which time she had dismissal in mind.In our view, it is clear that the industrial tribunal were entitled to conclude that from an early date there were doubts about the appellant's performance, and his lack of communication with the rest of the staff. The letters by the headmistress from 25 November 1985 right through to the final letter indicate an increasing anxiety about the appellant's performance, in spite of his efforts in his letters to explain his position.The fact of the matter seems to be as the industrial tribunal found, that the standards, approach, and method of working at the respondents* school differed from the standards required elsewhere. In our view, the industrial tribunal were entitled to take the view that the respondents had the right to decide on the standards of teaching in their particular school.In the circumstances we dismiss the appeal.