Kelsey v Kent County Council [1992] UKEAT 340_91_0810

EAT
Kelsey v Kent County Council
[1992] UKEAT 340_91_0810 · 1992-10-08
MR JUSTICE KNOX : This is an appeal by Mr Kelsey, a Preliminary Hearing. The decision appealed from was one reached by the Industrial Tribunal sitting at Ashford in Kent after hearings on 7 February, 25/26 March, 21 April 1991 and the decision was sent to the parties on 16 May 1991.The decision was a unanimous one to this effect, that Mr Kelsey was unfairly dismissed by the Respondents the Kent County Council, and secondly that there should be no award of compensation to Mr Kelsey. Mr Kelsey's appeal is naturally not against the first of those two decisions that he was unfairly dismissed, it is limited to the second, namely that his compensation should be reduced to "nil". The two provisions whereby that lies within the jurisdiction of the Industrial Tribunal are to be found in sections 73 and 74 of the Employment Protection (Consolidation) Act 1978, one section dealing with the basic awards calculation and the other dealing with the compensatory awards calculation. So far as the basic award is concerned, the relevant provision is S.73(7B). There is a slight misprint in Mr Kelsey's Notice of Appeal in relation to that but nothing turns on that, it is 73(7B) not 73(1B).The provision reads:
"Where the tribunal considers that any conduct of the complainant before the dismissal ....was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly."
The provision which is closely similar, not absolutely identical, with regard to the compensatory award, is in S.74(6) of the Act and reads:"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding".The history of the matter that led to Mr Kelsey's dismissal, after long service, because he was made a permanent Teacher in English at the Dartford Grammar School in September 1972 and was only dismissed in February 1990, revolved round a series of written warnings that were given to him by the headmaster, Mr Smith, who was appointed headmaster in April 1986. They were given at various times - one on 12 January 1988 which was extended in May 1988 and a final written warning was given on 10 October 1988.The Industrial Tribunal gave what seems to us a very lengthy, detailed and painstaking decision in which they reviewed both the facts and the law at very considerable length. We are not concerned on this appeal with the great bulk of that decision because it was concerned with the question upon which there is no appeal before us - was Mr Kelsey fairly or unfairly dismissed? That question was answered in his favour that he was unfairly dismissed. What we are concerned with is the exercise of their discretion under the two subsections that I have read to reduce the amount of the awards that he otherwise would have received and in relation to that, they said this, having found that the dismissal was unfair because of a denial of natural

justice which eliminated equity and fair play:

"We have, however, dwelt at some length in paragraphs 49 to 56 above on the reasonableness of the response by the respondents [that is the Kent County Council] to the applicant's misconduct and it is clear that there was ample evidence before us, both oral and documentary, (in particular, the notes of the hearing of 9 February the contents of which were not contested by the applicant) from which we have concluded that the applicant was flagrantly disobeying instructions from his Head Teacher, that his continued failure to carry out directions was wilful and that even at the time his dismissal was being considered, he was refusing to submit to the Head Teacher's authority."
Any employee who persistently fails to carry out instructions given to him in the workplace will surely risk dismissal since such disobedience can lead to anarchy. The applicant was guilty of rebellion against authority over the years and his attitude showed that he considered that he had complete autonomy in the classroom. He was wrong about that but Mr Smith's prolonged efforts to bring him into line had failed."At the hearing of 9 February it was clear that the applicant was still not setting the written work required and that he was failing to mark pupils' work in the manner in which he had been directed. He expressed no regret and gave no reasonable explanations at that hearing. We have concluded that there could have been no reasonable hope that improvements would ever be forthcoming.They then refer to the two subsections that I have already referred to and express their conclusion:
"Having regard to our conclusion, we are unanimous that considerations of justice and equity require us to reduce the applicant's compensation by 100% to nil."
Mr Kelsey has addressed us not at the length he would have liked because I prevented him from addressing us on matters which I ruled were irrelevant to this Appeal. The grounds of his Appeal, as stated in his Notice of Appeal do not in our view, amount to an identification of any error of law in the process with which we are concerned, that is to say that the exercises of the discretion to reduce the awards basic and contributory from 100% to nil. It would be right, because this is an important matter for Mr Kelsey, for us to look at the grounds of Appeal that he advanced and to identify the reasons why in fact they do not in our view, amount to an error of law on the part of the Industrial Tribunal.The first ground was that it was wrong, he submitted, for Mr Kelsey not to have been given the right to appear before the governors and the County Council in the proper way and that of course only goes to whether he was fairly or unfairly dismissed which is a battle which he won and therefore that is obviously not concerned with the reduction in his award. He then goes on to point out that there were other witnesses who might have been able to give evidence and he says that they were reluctant to attend what he describes as:"non-educational judicial structures such as the Industrial Relation Tribunal at Ashford".That in our view is not a matter that reveals an error of law on the part of the Industrial Tribunal. We have in this tribunal to take life as we find it and the fact that there were potentially other witnesses who were not in fact brought before the Industrial Tribunal, cannot possibly amount, in our view, to an error of law on the Industrial Tribunal's part.The second point was this:
"The Governing Body and the County Councillors Committee could have come to many different conclusions after hearing me and witnesses for me, as to what could have been done."
He elaborated this in argument and submitted to us that in fact if a proper procedure had been followed, his dismissal could not have been decided upon in practical terms before 1 April of the year in which he was dismissed, when a new system would have been introduced which would have led to a different body dealing with the matter and things might have again turned out differently.There again that is not an identification of an error of law in the Industrial Tribunal in its decision. It is another "might have been" which in fact did not occur. Even if it could have been substantiated, and there is no material in the Industrial Tribunal's decision to substantiate it, that there was some deliberate planning in the unfairness of the procedure that was adopted by the Kent County Council, it still would not have amounted to an error of law on the Industrial Tribunal's part in reducing the awards.Thirdly, he submits that a local education authority has to act reasonably. No-one is likely to dispute that proposition, but the conclusion that he draws from this is that his workload was unduly heavy and that this was unreasonable behaviour on his employer's part, such as to justify compensation in his favour.This is a pure issue of fact but it is in fact irrelevant because the issue before us is concerned with whether or not Mr Kelsey was guilty of contributory default and the point that is here being made is that he did a very great deal of work over and above what could properly have been required from him and that is a completely different question as to whether he did more work than he was legally bound to do. It is not a ground that impinges at any point on contributory default.His fourth point is that the warning procedure was improperly followed by his employer. This goes to the question of whether or not he was fairly or unfairly dismissed and as we have mentioned more than once I fear, he won that battle and that goes to unfair dismissal. It does not go to any conduct on his part justifying the reduction of the awards in his favour. This is a typical example of many that arose during Mr Kelsey's address to us where he sought to draw our attention to activities and shortcomings on the part of his employers in which expression I include the County Councillors, their committees, their officers and the officers in the schools such as the Head of Department and the Headmaster.Those are all matters which may well go to questions of whether the dismissal was fair or unfair, but they do not go to the question of whether the school master in question here, Mr Kelsey, was guilty of contributory default. In looking at those questions one has to look at the employee's conduct and not the shortcomings, if there were shortcomings, of the employer.The fifth point was that guidelines are not the same as instructions and he cites a statement by Mr Justice Scott as he then was, that "teachers don't have to jump every time a Head Teacher tells them to do so". One appreciates of course, that professional persons are not subject to the sort of detailed directions that an unskilled operative in a factory for example, is. However, this is a matter which is a matter for judgment for the Industrial Tribunal, a matter that they looked at very carefully in relation to Mr Kelsey's very firm view that he was subjected to an undue degree of supervision. There were issues between him and his Headmaster as to whether the Headmaster was entitled to look at his pupils' folders and other similar points arose over the years - that is a matter of judgment for the Industrial Tribunal and is not a matter which we can consistently with section 136 of the Employment Protection (Consolidation) Act interfere.Sixth, he says that the Tribunal did not take into account sufficiently, or at all, various matters when deciding on the amount of compensation that he should receive. The first point was that appeals by teachers against warnings in Kent appear not often to be crowned with success. That is not a relevant reason in relation to this appeal for a variety of reasons. One reason is that even if the proposition on which the submission is based is true, it is perfectly possible that the appeals do not succeed because they are not good appeals and that the warnings were justified, but more seriously and more importantly, what happens to other people with regard to their appeals, is irrelevant to what happened to Mr Kelsey. One has to look at what the evidence with regard to his case is.Secondly, he submits that he received salary increments and he deduces from that that he was not seriously unsatisfactory as a teacher. It is fair to record that when the Industrial Tribunal analysed the reasons why he was dismissed and came to the conclusion that they did, that dismissal was within the range of responses available to a reasonable employer in the circumstances of the case, they did go out of their way to say that Mr Kelsey was not dismissed for his incompetence as a teacher, but for his refusal to accept any help, guidance or instructions from the Head Teacher or Head of Department so this is not a case where it was found that Mr Kelsey was dismissed for incompetence.Next it said that there were secret letters sent by the Heads of the English Department to the headmaster and they destroyed a basis of trust by the employer. That is (a) a question of fact on which there is no material before us but more significantly so far as we are concerned, it is nothing to do with Mr Kelsey's conduct and the question whether that justified a reduction of his awards. Similarly the next reason which was the absurdity of the reasons given for his dismissal, that he was not setting work for the GCSE conditions in accordance with the syllabus, which was in his view disproved by the excellent GCSE results of his class in August 1989, is not a matter which impinges on his conduct as identified by the Industrial Tribunal. It would of course, have been relevant material, it might not have been conclusive but it would have been relevant material, if this had been a case of dismissal for incompetence which it was not. Finally, under this head, he said that there was a change in the Chairman between the one who dealt with interlocutory matters such as witness orders, information orders and document orders and that the Chairman who presided at the ultimate hearing was not the same person and did not know about the changing Chairman until half-way through the proceedings. That again is wholly irrelevant to any question of Mr Kelsey's conduct and its justification for reducing the awards in his favour.His seventh and last reason in his Notice of Appeal is that he wants to investigate the possibility that his eventual successor was appointed before he himself was dismissed. That I fear is wholly irrelevant because obviously it does not impinge on the justification for the reduction in his award.For all those reasons, at perhaps rather tedious length, we have reached the conclusion that it would be a disservice to Mr Kelsey to allow him to continue this appeal and we dismiss it.