Harrison v Hertfordshire County Council [1995] UKEAT 96_93_1605

EAT

Harrison v Hertfordshire County Council

[1995] UKEAT 96_93_1605 · 1995-05-16

JUDGE HULL QC :

This is an appeal to us by Mr Harrison. The first matter we are considering now is an application by him to amend his Notice of Appeal. He is represented today by Mr O'Brien, instructed through the Free Representation Unit, to whom of course, we are very grateful. The history of the matter I will set out shortly, to show the grounds of the application.

The Appellant complained of a decision to dismiss him. He was dismissed effectively from 30th April 1992 but the essential decisions were taken at the end of 1991. He was employed by the Respondents, Hertfordshire County Council, as a school teacher, at Beaumont School, St Albans. He had been employed there for no less than thirty years. He was employed, amongst other things, in teaching science and there was an incident there, which led to complaints against him. He was dismissed.

He applied to the Industrial Tribunal on 9th January 1992, complaining of unfair dismissal. The Industrial Tribunal sat at Bedford, under the chairmanship of Mr Drysdale, with two industrial members, on 9th, 10th, 11th and 16th November 1992. They promulgated their decision on 9th December 1992 and an application for review, by Mr Harrison, who up to this point had acted in person throughout, was rejected on 18th January 1993.

There was an appeal, made timeously. That appeal came before this Employment Appeal Tribunal on 28th April 1993 for a preliminary hearing in front of Judge Peppitt QC, with two members. They heard Mr O'Brien. They said that the appeal should proceed. They gave leave to the Appellant to amend the Notice of Appeal in respect of the draft grounds submitted to the Court.

Now, that Notice of Appeal, the amended grounds of appeal, settled by Mr O'Brien, are at pages 1 and 2 of our main bundle. They were received by this Tribunal on 21st June 1993.

There is now an application to us to re-amend that Notice of Appeal to raise a serious matter. We find the draft of what Mr Harrison is seeking at pages 2 and 3 of the preliminary application bundle, as it is called, which is before us now.

He says:

"The Tribunal's decision that the appellant was not unfairly dismissed was made contrary to the requirements of natural justice and/or in breach of the appellant's statutory right under Section 8(2) of the Industrial Tribunals (Rules of Procedure) Regulations 1985 to address the Tribunal. The decision was accordingly unsafe ..."

We need hardly say that, if there was denial of natural justice to Mr Harrison before the Industrial Tribunal, that is a matter of law, which we can, of course and will, entertain.

He then says in his particulars:

"The appellant's application was heard over 4 days ..."

The authority, the Employers, were represented by Mr Pearl. Mr Harrison says that:

"... the Tribunal chose to hear Mr Pearl's final address before that of the appellant. Mr Pearl was permitted to avail himself of notes ..."

And then he says this:

"The appellant had prepared notes the previous day and wished to read from them and add to them, in particular, to comment on evidence heard by the Tribunal on the last day. The appellant told the Chairman (Mr Drysdale) that he wished to address the Tribunal. The Chairman informed the appellant that he was not to address the Tribunal in that way and the Tribunal members would simply read copies of the notes. The notes were taken from the appellant in spite of his protests. Although he saw that the appellant was at that point without his notes the Chairman asked if he had anything to say. The appellant made an effort to speak, at which point the Tribunal members began to read the notes to themselves [ and I think the next word should be "without" ] the benefit of any amplification or explanation or criticism of evidence of the final day's proceedings.

The proceedings concluded without the appellant having had the opportunity to address the Tribunal and, as a corollary, without having had an opportunity to present his own case."

Then he attached an affidavit which purported to support that, and also that of a bystander. The bystander said that what happened was that Mr Harrison was asked for his notes when he rose to make a closing speech.:

"The Chairman said that they could read faster than Mr Harrison could read them. I remember Mr Harrison protested at this strongly at this course of action and I recall that the notes were taken from him despite his objections."

What happened was, evidently, that the notes were copied by an officer of the Tribunal, then brought back apparently, and we have looked at a total of twelve pages, which are said to be the notes in question from which, apparently, Mr Harrison started to read.

Mr O'Brien tells us that he was not instructed to put these matters in the Notice of Appeal and therefore the Notice of Appeal, as amended by Mr O'Brien in the first place, does not contain any complaint on that ground. This matter, as I say, came up later; it was not till 27th October 1994, page 1, that the application was made, and the affidavits were put in.

So far as the County Council is concerned, we have today been shown an affirmation by Miss Morgan, a solicitor, of the Department of Law of the Authority. She deposes to what happened. She produces her notes, as to what happened, and she also produces the notes of Mr Pearl's pupil. This pupil is trained, says Mr Pearl, to take a note, and in particular to take a note of timings. We have looked at those, and various things are perfectly apparent, unless these notes are fabrications, which is not suggested. So far from Mr Pearl addressing the Tribunal before Mr Harrison, he addressed the Tribunal after Mr Harrison. That is a colossal difference in recollection. In addition, those notes show quite plainly that Mr Harrison, so far from being silenced by the conduct of the Chairman, did address the Tribunal. His notes were copied and he addressed the Tribunal. And we have looked at Miss Morgan's notes, which are exhibited by her. There are here three pages recording the copying of Mr Harrisons notes, the way the notes were handed out, and various argumentative points which passed between the Tribunal and Mr Harrison, exactly the sort of argument which one would expect to see. And it is after that, as one would expect, that Mr Pearl addressed the Tribunal.

Quite apart from what Miss Morgan says in her affidavit, important as it is, we have the enormous benefit of Mr Pearl's recollection. We have no doubt that if there had been unfairness, as it appeared to Mr Pearl, Mr Pearl would have intervened. Quite apart from counsel's duty, of which we are sure that Mr Pearl was mindful, it is a disastrous thing if a result is obtained favourable to the Authority, through some unfairness. It would not be merely the Authority's duty, through their counsel, but also in their interest, to protest, if there was any apparent unfairness taking place, to ask the Chairman to reconsider his rulings. Mr Pearl makes it quite clear to us, that there was nothing of that sort. What happened, in Mr Pearl's recollection, accords with the notes taken by his pupil. He recalls that Mr Harrison went first and then Mr Pearl addressed the Tribunal. He says that during the time, which is recorded as being devoted to Mr Harrison's address, he (Mr Harrison) spoke throughout. And of that, Mr Pearl has a vivid recollection. Then Mr Pearl made his final submissions.

Mr Pearl is reasonably certain that what the Chairman said was "what are you reading from?", because Mr Harrison was reading from his notes, and the Chairman asked for them to be handed up. Mr Pearl is reasonably sure about that, and then of course they were copied.

He points to some previous intimations in the papers, in the original Notice of Appeal and in Mr Harrison's application for review - as does Mr O'Brien - in which this matter is put in a muted way, as being a possible ground of complaint.

So that is the material before us, but I have not yet mentioned a most important point. The Chairman was quite properly consulted about this, as he has to be if there is a complaint against the conduct of the Tribunal:

"My recollection of the events of over 2 years ago, as confirmed in my notes, is in line with the account given by the respondents. [ That is of course the notes which had been shown to the Chairman. ] Mr Harrison put in written submissions which were copied and returned to him. He was also allowed to make oral submissions. This was on the afternoon of the final day and was followed by the closing submissions on behalf of the respondents. I do not recall doing anything to restrict Mr Harrison. [ Then the Chairman adds ]:

"... He sent numerous other letters to the tribunal since then and so far as I can see has never before raised the points now raised."

We have no doubt, looking at that evidence, that whether or not Mr Harrison was put out by what happened, there was no such denial of natural justice as is alleged here. We have Counsel's notes, Counsel's pupil's note, we have the solicitor's note and we have the Chairman's word for it, and we look at how the matter has developed. This is a grossly belated application. We are told that very belatedly, just a week or so ago, application was made to this Tribunal to request the Chairman to produce his notes. The learned President of this Tribunal said that, "In his view, it was unnecessary and he would not ask for those notes to be produced." We respectfully agree with that ruling. There appears to us to be no need whatsoever for the Chairman to add his notes to all the rest of the material. It may very well be that Mr Harrison was, as indeed the witness, Mr Mason, who swore the affidavit says, prevented from reading all his notes out loud. That was certainly something he had no right whatever to do. If the Chairman sees that somebody is reading from a long document, he is fully entitled, any court or tribunal is entitled, to say, "we will read this to ourselves, and then if you wish to comment on it, paragraph by paragraph, or make one or two comments, or add to it, then of course you may do so afterwards." That appears to us to be what happened here. It seems to us that there are no grounds shown for this exceedingly belated application to amend the Notice of Appeal. And having looked into it very fully with the assistance of Mr O'Brien and Mr Pearl, for which we are very grateful, we refuse the application for leave to re-amend the Notice of Appeal, and propose to hear this case on the basis of the amended Notice of Appeal of June 1994, which was drafted by Mr O'Brien on instructions, after he had been given leave by the Tribunal presided over by Judge Peppitt QC, in April of last year.

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JUDGE HULL QC :

In this case, I have already set out the facts once in dealing with the application for leave to amend, but I will set them out shortly again, for the convenience of those who may read this decision.

Mr Harrison, the Appellant to us, is a school teacher. He was first employed by the Respondents, the Hertfordshire County Council, at a different school from the one we are dealing with, in September 1961. So, since he was not dismissed until 30th April 1992, he did slightly over thirty years in the service of the Respondents. For seventeen years, we are told, he was employed at the school which does come into this story, Beaumont School, St Albans. There had been a Mr Isted who was the head teacher and then a Mrs Rawlinson was the head teacher.

There had been some untoward incidents towards the end of Mr Harrison's period of employment. He had, on four separate occasions, been rebuked by the head teacher, or warned by the head teacher, for using force in some way or other, not apparently very seriously, against pupils. But the use of force was prohibited, indeed it is unlawful since an Act of 1986, and he had been rebuked.

These incidents began in 1988. On 20th September 1991, Mr Harrison was taking a class in a laboratory, we are told that it was the biology laboratory, and a boy misbehaved, a boy referred to as "C". He was apparently aged fourteen. Mr Harrison, who was in charge, saw a cloud of smoke rising, went to investigate, and found, though not immediately, that what had happened was that this boy had been heating up a pair of forceps in the bunsen burner flame and had thrust them against the top of the desk or bench, thereby causing the smoke, and was in fact concealing them. Mr Harrison asked to see what the boy was trying to conceal, and the boy put into his hand the forceps which were still extremely hot, and Mr Harrison's hand was actually burnt, fortunately not very seriously, but no doubt, as with many small burns, the pain was severe. Thus provoked, Mr Harrison struck the boy on the face. The boy apparently became upset and ran out of the class and Mr Harrison followed him out, leaving the rest of the class alone in the laboratory. Mr Harrison followed the boy who went to the head teacher. The boy and Mr Harrison both spoke to the head teacher and the head teacher told Mr Harrison to return to the class. He did, and fortunately there had been no further mishap, although he had left the class in the laboratory, a matter for which he was criticised.

He then, four days later, being aware that the matter was being taken further, wrote a letter to the parents of the boy concerned. That letter is with our papers, and was the subject matter of a further complaint against him. It is an odious letter. It is a letter which no professional man should have written and it amounts to a threat; and it might be called a blackmailing letter.

So he was made the subject of disciplinary charges at the instance of the head teacher. He was charged with striking the boy, with leaving his class unsupervised in a laboratory, and with writing this letter to which I have referred. He had been interviewed by the head teacher. There was a disciplinary interview on 3rd October 1991, with a Mr Waldram, an educational officer. Then there was a disciplinary hearing before the governors on 14th November 1991, who recommended that he should be dismissed. On 20th December 1991 there was a disciplinary hearing before the appeals committee of the Authority. Four councillors sat to hear that. The Industrial Tribunal said that the committee spent eight hours and that the matter was heard de novo. All the matters which Mr Harrison and anybody else wished to put before them were investigated by the appeals committee. And they took the decision that he was to be dismissed. In their view, he was guilty of gross misconduct in the first two matters, and misconduct in relation to the letter. They recommended that he should be dismissed and in spite the fact that they considered he had been guilty of gross misconduct, they said that in view of his long service he should be given his period of notice and thus his eventual effective date of termination, after a letter had been written to him, was on 30th April 1992.

He complained to the Industrial Tribunal on 9th January 1992 that he had been unfairly dismissed and that was resisted by the Authority. There was a hearing on 9th, 10th and 11th and 16th November 1992 in front of the Industrial Tribunal sitting at Bedford under the chairmanship of Mr Drysdale, who is an experienced chairman, sitting with two industrial members and they promulgated their decision on 9th December 1992.

Mr Harrison appealed. He had at all times, up to this point, been acting without the benefit of legal assistance. He appealed, and his original notice of appeal was not the one which he eventually put forward with the assistance of counsel through, I believe, the Free Representation Unit. The matter came before this Tribunal chaired on that occasion by Judge Peppitt QC, and Mr O'Brien appeared and was able to put the matter to this Tribunal in a way which ensured that it was ordered that the appeal should proceed; and leave was given to amend the original Notice of Appeal. An amended Notice of Appeal was duly drafted with Mr O'Brien's assistance. That is the case which we have today.

It is probably convenient now if I read parts of the Industrial Tribunal's decision. They record the facts, in rather more detail than I have. They record in particular that Mr Harrison saw his doctor on the day on which this incident in the laboratory took place and the doctor reported that his left index finger had burns on it, and it had clearly caused Mr Harrison considerable pain.

They record his leaving the laboratory unsupervised. And they refer to the four previous incidents which I have referred to.:

"... Having regard to the incident in question, and to 4 previous incidents concerning striking or pushing pupils by Mr Harrison, about which he had received warnings, Mrs Rawlinson decided to initiate disciplinary proceedings against Mr Harrison and informed him accordingly at 3.30 pm the same day."

"6 On the 22 September 1991,[ that is two days later ] C's parents wrote to Mrs Rawlinson stating that Mr Harrison, as a teacher with experience, should not lose control or strike out at a pupil in the way that he did. Subsequently, Mr Harrison sent a letter to C's parents, dated the 24 September 1991, enclosing a statement of his own version of the facts of the incident concerning their son. However, he went further than this in threatening to disclose to others information, concerning certain alleged incidents involving C, of which he had heard, unless C's parents withdrew their complaint. Mr Harrison seems to have overlooked the fact that Mrs Rawlinson had started disciplinary proceedings against him, before she ever heard from C's parents, as she had in fact told him at the time. Mr Harrison's letter to C's parents subsequently became a further matter of complaint against him, in addition to his striking C on the 20 September 1991, the previous history of striking pupils and his leaving the laboratory unattended."

Then they record the disciplinary interview by Mr Waldram and the disciplinary hearing before the governors of the school. They say at the conclusion:

"... the governing body had decided that he was guilty of gross misconduct and recommended that he should be dismissed. This decision was communicated to him in writing by letter of the 7 November 1991. He was then suspended on full pay pending a further decision of the Education Authority"

"9 A further hearing was held at County Hall, Hertford, on Friday the 20 December 1991 before 4 members of the Appeal Sub-Committee, all County Councillors. ... At the conclusion of the hearing, Mr Harrison was told that the Sub-Committee's unaminous decision was that he should be dismissed. This decision was confirmed by letter of the 23 December 1991."

"10 In this letter Mr Harrison was told that he was dismissed because, the Sub-Committee had decided, firstly, that his striking of C, especially in the light of previous incidents of hitting or pushing pupils about, for which he had received warnings, constituted gross misconduct; secondly, that leaving the class unsupervised also amounts to gross misconduct; and, thirdly, that the threatening letter written to C's parents constituted misconduct but not gross misconduct."

"11 In our view the respondents' procedure is a reasonable one and was scrupulously followed. In this connection, we accept that Mr Harrison was not represented at all the hearings, but this was at his own request. However, at his own request, his wife was allowed to accompany him."

They were there considering the matter, which it was their duty to consider, whether quite apart from the grounds of the dismissal, the hearings concerning the matter, the disciplinary hearings, had been conducted properly and fairly.

"12 At the conclusion of the hearing before the Education Sub-Committee, Mr Harrison said that he accepted that the hearing had been a fair one. At the tribunal hearing, he resiled to some extent from that statement. He complained that he had not been allowed to call pupils to give evidence at the hearing. We do not think that this complaint is a reasonable one since the facts of the case were agreed and Mr Harrison's version of events was accepted."

They go on to direct themselves in paragraph 14 of their decision:

"14 The reason for Mr Harrison's dismissal was gross misconduct. We must now consider whether, in the words of Section 57(3) of the Employment Protection (Consolidation) Act 1978, the respondents acted reasonably in treating this reason as a sufficient reason for dismissing Mr Harrison in all the circumstances of the case. It is well established that in doing this we must not put ourselves in the shoes of those who decided that Mr Harrison should be dismissed or substitute our own views for theirs. What we have to do is the different exercise of deciding whether the Appeal Sub-Committee have acted reasonably in deciding that Mr Harrison should be dismissed or, as it has been put, whether their decision to dismiss Mr Harrison was so wrong as to be unreasonable, or outside the band of reasonable responses of a reasonable employer, in the light of the information known to them when they made that decision."

That appears to us to be an impeccable direction to themselves, as to the steps they must take in pursuing their enquiry. They go on:

"15 In the respondent's Disciplinary Rules, which apply to all schools in the County, gross misconduct is stated to include violence involving children or young people, other serious kinds of violence, and physical violence towards other members of the school staff/parents/pupils/Governors, members of the public/Officers of the Authority. These Rules are amplified by documents circulated to the staff from time to time, of which Mr Harrison accepted he had received copies."

That again is a very important finding, and one which, as the Tribunal said, was not in any way in dispute.

They go on to deal with certain contentions about that, which perhaps owe more to a legalistic approach than to common sense. Of course, a school master/mistress is entitled to defend themselves reasonably against force or to use force to save life and so on.

Then they go on:

"18 It is now time to say something about the earlier incidents involving Mr Harrison, which the Sub-Committee took into account in deciding that he should be dismissed."

They go through them, there are letters dealing with these which start in 1988. The next one was in 1989 and they deal with the correspondence in which Mr Harrison was warned repeatedly about these matters. It is true to say, as is pointed out on his behalf, that he was not on these occasions given disciplinary warnings in the strict sense by reference to particular paragraphs of the rules, or warned that this was a final written warning or anything of that sort. But these were undoubted and emphatic rebukes from his head teachers, both Mrs Rawlinson and her predecessor. And no person, in our view, could have received such letters and not felt that he was receiving a serious warning about his future behaviour in the matter of striking or pushing pupils.

They go on:

"20 At the hearing before us, as at the hearing before the Education Sub-Committee, Mr Harrison at first contended that this action in striking C, was a mere involuntary reflex action. However, at this hearing he subsequently withdrew this contention."

"21 Mr Harrison accepts the Committee's view that his action is striking C was a retaliation but contends that retaliation is a defence in law to the charge of assault, and therefore that the decision to dismiss him was unreasonable. Mr Harrison really did mean retaliation (i.e. repayment (of injury or insult) in kind) since he spoke of "an eye for an eye".

They go on to say, quite rightly, that in English law there is no such right. They refer to Halsbury's Laws . It would be an astonishing matter, one thinks, to lay before Governors, a local Education Authority or an Industrial Tribunal: that a school master was entitled to retaliate against an unruly pupil. But that was what Mr Harrison did say. And of course therefore the Tribunal had to consider that.

They go on in paragraph 22:

"22 Mr Harrison's action in striking C did nothing to defend him against the act which caused the burn, since this act had already taken place. Once Mr Harrison dropped the forceps, there was no danger of this act being repeated. Although Mr Harrison was of the view that C wanted to hurt him when he handed him the forceps, Mr Harrison accepted that it was possible that this was not so. He added that, if it had been an accident, this would have made no difference to his reaction, nor would there have been any difference if the pupil concerned had not been C but some well-behaved member of the class. In our view the Sub-Committee were correct in concluding that Mr Harrison's act was one of retaliation, not mere defence."

And they go on, of this it appears that there can be no criticism:

"23 The real point in Mr Harrison's favour, and it is a substantial one, is that he was provoked, indeed severely provoked, before he struck C. If this had been an isolated incident, the Eduction Sub-Committee might well have decided that he should not be dismissed. However it was not. The Sub-Committee took account, in our view rightly, of previous incidents of violence to pupils. We agree with Mr Pearl that it is significant that, in all the incidents, except one, the complaint against Mr Harrison was that of striking pupils about the head. [ And they add this, which is the subject of complaint to us today. ] Each previous incident of striking pupils was in itself an act of gross misconduct under the respondent's disciplinary rules, for which Mr Harrison might have been dismissed. In the workplace a single act of violence is usually considered sufficient to warrant dismissal. Employees are not normally given a second, let alone a third and fourth chance."

They go on:

"24 Even as things were, we think that Mr Harrison might well have avoided dismissal had he taken a more conciliatory stance. Instead, he obstinately refused to accept that he was in the wrong at all, either for the incident involving C, or the other associated incidents, or the previous incidents of violence, which he treated as trivial matters and indeed sought to justify. This led him to rebuff the respondents' attempts at conciliation. Mr Harrison seems to have been obsessed by a notion that Mrs Rawlinson was pursuing a vendetta against him, overlooking the fact that the County Council's disciplinary rules were not introduced by her but were imposed upon her by the County Council, and it was her duty to enforce them. Mr Harrison seems also to have overlooked, until it was brought to his attention by the tribunal, the fact that the decision to dismiss him was taken by the four members of the Education Sub-Committee, not Mrs Rawlinson, on facts agreed by him, and that what we have to consider is whether that decision was reasonable or unreasonable."

"25 We now turn to consider briefly the other matters referred to in the Sub-Committee's dismissal letter, namely Mr Harrison's having left the laboratory unattended and the threatening letter. We agree with Mr Harrison, as regards his leaving the laboratory, that there were mitigating circumstances and that the view the Committee took was somewhat harsh. [ Again that is a matter which has been underlined for our benefit. ] We accept Mr Harrison's evidence that he was in a real dilemma as to whether he should follow C to ensure his safety or stay with the class. We also accept his evidence that he did all he could to make the class safe before leaving. As regard the threatening letter, however, we consider this a more serious matter than the Sub-Committee appears to have done, in particular in an experienced teacher having long service who ought to have known better than to indulge in such improper conduct. However, we do not think that these differences with the Sub-Committee's decision have the slightest effect on our conclusion that, on balance, they have acted reasonably in deciding that Mr Harrison should, in all the circumstances of the case, be dismissed.

"26 We would add that, by this decision, we do not in any way seek to condone C's actions any more than, we believe, the Sub-Committee has done."

Then they refer to another case: I do not think we need to refer to that.

So that was their decision. A very important preliminary test is for us to read that decision, as we have done, not once now, but more than once, and to say to ourselves: is there anything there that appears to be wrong, is there anything there that stands out from the page as making us think that there must be something wrong with this decision? It did not appear to any of us, on our prima facie view, that there was anything in that decision which was transparently wrong or unreasonable. On the contrary, the directions of law which the Tribunal gave to themselves appear to be impeccable. The way in which they went through the evidence appears to have addressed precisely the right issues. And the comments which they made were moderate and, it appears to us, entirely fair. They were by no means wholly against Mr Harrison's submission to them. And indeed they supported him in saying that they thought that the committee were somewhat harsh in all the circumstances with regard to his behaviour in leaving the laboratory. It could be said, as I commented in the course of argument, that the emergency and dilemma arose from his own conduct in striking the boy, and precipitating that part of the emergency, to which Mr O'Brien made a retort, which if I may so does illuminate his client's approach perhaps, that it was the boy who caused it in the first place. Certainly the boy provoked the master and it was for the master, of course, to react in a proper way to the provocation to which he was subjected. The Tribunal quite obviously gave full weight to that.

Now we have to turn to the grounds of appeal, which Mr O'Brien has put forward, if we may say so, very steadfastly and with great firmness. He prefers us to deal with them on the basis of his skeleton argument which, says Mr O'Brien, puts the matter rather more neatly than his Notice of Appeal. So I will deal with the arguments, if I may, in the order in which Mr O'Brien put them to us.

Ground No. 1:

He first of all goes to paragraph 25 of the decision, he says:

"Although the appellant contends that the Industrial Tribunal has found as a fact that the charge that the appellant left the class in potentially dangerous circumstances was not established before it, it is possible that is not the meaning of Paragraph 25 of the decision. Ground No 1 deals with this possibility."

It does appear to us that in paragraph 25 the Industrial Tribunal was not finding that there was nothing in the charge of leaving the laboratory unattended or that it was matter which should be put on one side. They took the view that there were mitigating circumstances and that the Committee's view of that was somewhat harsh. They are entitled to make comments of that sort. But they, of course, were obliged to say to themselves that it was the business of the Committee and the Governors and the Head Teacher, and not their business, to say how seriously these matters were to be dealt with. And it would only be if the decision was outside the bounds of what a reasonable employer could do, that they could interfere. They do not suggest anything to justify such an approach as that. They found the committee somewhat harsh over leaving the laboratory, they found the committee somewhat lenient over the threatening letter. But they go on to say at the end of that paragraph:

"... We do not think that these differences with the Sub-Committee's decision have the slightest effect on our conclusion that, on balance, they have acted reasonably in deciding that Mr Harrison should, in all the circumstances of the case, be dismissed."

And that shows what those comments are worth. They are the personal view of the members of the Tribunal, which are quite insufficient, although they differ to that extent from the councillors, quite insufficient to enable them to say that the Sub-Committee behaved in any way unreasonably. And they spell that out expressly.

Mr O'Brien went on to expand this submission by saying that there was no reasonable evidence before the Tribunal that the circumstances were potentially dangerous; and then he set out various matters in evidence. We pointed out that the Chairman's notes of evidence were not before us. And it is quite idle, with great respect, to refer to particular parts of the evidence without having all the evidence in front of us. One can always pull out particular pieces of evidence which appear to tell one way or another. If a submission is going to be made that there is no evidence to support a finding, or no sufficient evidence, or that the decision is not based on evidence, then the evidence must be before us so that we can see all the evidence. And so it appears to us that there is nothing whatever in Ground No 1.

Ground No. 2:

"The Tribunal has, in fact, found in Paragraph 25 of the decision that the charge of leaving the class etc. was not made out."

It seems to us that that is, quite simply, a wrong statement. It is made out, and the Tribunal was certainly not finding that it was not made out.

"It [ the Tribunal ] did not find that the respondent had believed the charge to be true on reasonable grounds. The factual findings of Paragraph 15 are inconsistent with such a finding. In any event it is clear that the Tribunal by implication has found as a fact that the misconduct (if misconduct there was) was not serious."

Again, all we can say about that is that it is not a legitimate paraphrase of what the Tribunal found. It appears to us to be a misstatement of what the Tribunal found. I have already said, I hope, enough, I have read paragraph 25 and particularly underlined what falls at the end of that paragraph.

And then, having made that submission, Mr O'Brien referred us to the case of Smith v Glasgow City Council

[1987] ICR 796

HL . I am not going to refer to that in detail. It appears to us, that that is a case which is quite different. It was a case in which one of the grounds relied upon by the Employers was not merely found not to be made out; it was a ground which there was no evidence whatever to support. In those circumstances it was plainly the duty of the Industrial Tribunal to find what was the principal ground of the dismissal and to decide whether the dismissal was fair without that unevidenced ground being taken into consideration as the Employer appeared to have taken it into consideration. Obviously if the Employer has taken into consideration something which is utterly without foundation, and that is an important part of the decision, then as a matter of common sense it is unlikely that the dismissal can be fair. It is completely opposite with this case. There is no doubt whatever that Mr Harrison left his class; there is no doubt whatever that, in the view of Tribunal, the sub-committee was fully entitled to treat that in the way that they did. The fact that the Tribunal and sub-committee took rather different views and the seriousness of that matter is nihil ad rem.

It seem to us, therefore, that there is nothing in Ground No. 2 and that it is based upon a reading of paragraph 25 of the decision which, in our view, is not a proper one.

Ground No. 3.

This goes back to paragraph 23. The Tribunal had found, and here Mr O'Brien makes complaint, that:

"... Each previous incident of striking pupils was an act of gross misconduct under the respondent's disciplinary rules, for which Mr Harrison might have been dismissed."

Now there are certain grounds for criticising this part of the Tribunal's decision. The analogy with what happens on the shop floor is not a particularly apt one. Pupils are, in the nature of things, in the care of their school teachers, whilst they are at school. Moreover, the Tribunal might have done well to say that, although, in the view of the Tribunal, these incidents might well amount to acts of gross misconduct, they were not so treated by the Employers. And they might have said, "this is merely our opinion, and of course what counts is the view of the employers." They did not put it like that. It seems to us, though, that if one reads paragraph 23 as a whole, they are setting out that the sub-committee was well entitled to take a serious view of these previous incidents. Mr O'Brien complains of this passage by saying that:

"There was, however, no evidence or no reasonable evidence before the Tribunal that in regard to the above each prior act amounted to gross misconduct in itself under the disciplinary rules because the respondent had never made any disciplinary determination under the rules nor was there any such evidence before the Tribunal." [ Then he refers to letters. ]

Again, we say it is wrong, in principle, that we should look at evidence before the tribunal when we have not got the notes of evidence. We have had our attention invited to the letters. I have already said what we make of those. What this Industrial Tribunal had to do was to say whether the sub-committee was entitled to proceed in the way that it did. And in this paragraph 23, they are, it seems to us, simply referring to the way in which the sub-committee dealt with this, and expressing, perhaps rather too warmly, their agreement with the way in which the committee dealt with it. Because, of course, it is not for the Industrial Tribunal to say whether they agree or do not agree with the sub-committee, but merely to say whether it fell within the parameters of fairness for the sub-committee to deal with it in that way. We think again there is nothing in Ground 3.

Mr O'Brien again reminded us about the serious provocation that Mr Harrison had received, and his long service as a school master, and these are in our minds as matters which, of course, give us great anxiety and mean that we look at this case with particular care.

Ground No. 4.

Ground No. 4 refer to W. Brooks v Skinner

[1984] IRLR 379

. It is matter of importance, said Mr O'Brien, which every employer should consider, which every tribunal should consider: whether an employee knows that his conduct may lead to dismissal or will lead to dismissal. Fairness requires that they should have that matter well in mind. Here, says Mr O'Brien, the employers winked at the previous acts of violence, and did not deal with them under the disciplinary code. They merely wrote these letters, the headmaster wrote a letter on each occasion. That shows that they were winking at it, and that misled Mr Harrison into thinking the matter would not or might not be dealt with seriously. The latin expression for winking at something is conniving at it. This is a suggestion of connivance or perhaps, if one likes, condonation, that is to say that what had happened was forgiven, not treated seriously, and Mr Harrison was clearly given the impression, as would anybody reading these letters, says Mr O'Brien, that the matter would not be dealt with seriously, if he again dealt with a pupil in this way.

First and foremost, it appears to us that that is a question of fact for the Tribunal. We asked whether it was put before the Tribunal, in evidence and in argument by Mr Harrison, that he honestly believed that if he struck a pupil again it would be treated as a matter of no particular importance and not deserving of disciplinary sanctions. Mr O'Brien said that he did not have instructions and not being present could not tell us that. If it were put before the Tribunal, of course it was a matter which they would have to consider with all the other evidence. All one can say is, it would require a good deal of fortitude, even looking at it from a safe distance as we are, to put forward such an argument in the face of those letters written by the head teachers. How could anybody having received those letters say:

"Oh no, I thought I could quite safely go on striking pupils when I wished to retaliate, or whatever it might be. It was quite clear to me that this was not a disciplinary matter and that I would be in a safe position, in effect, as an old stager, a man of thirty years seniority, I would not be dealt with in a disciplinary way for that."

How anybody could put forward that submission with a straight face, one does not know. It would be a very strange submission to make. But if it was made, then the Tribunal was fully entitled, as the Tribunal of fact, to regard it as unfounded. Mr O'Brien says that they should deal with all these matters. And look, it is no where to be found in their decision.

The fact is that a tribunal is not bound to deal with each and every matter which might possibly arise, or every submission which might or might not be made. They are bound to consider whether the dismissal was fair in all the aspects which fairness has, and there is no indication to us reading this decision as a whole that they did not carry out their duty faithfully. We think that the case of Brooks v Skinner was dealing with a quite different case, in which the employee was able to say "I did not realise that I would be dismissed", and that was an important part of his case. Therefore the Tribunal was entitled and indeed bound to consider that. We think that is quite different from this case, and really to put this ground forward seems to us to be trying to make bricks without straw.

Ground No. 5.

Well then finally, Ground No. 5. Mr O'Brien says: if you read this decision as a whole, bearing in mind the criticisms which are made, then this is a perverse decision. It is a decision of which one says, reading it as a whole, "My goodness that must be wrong". He says that:

"The charges of serious misconduct are essentially trivial."

It is possible to assert almost anything, but that does with respect seem to be a very far-fetched, a very extreme submission and we are not prepared to accept it. He said:

"Mr Harrison was severely provoked ..."

and he retaliated. That was a matter well in the mind of the Tribunal.

He has long service. That certainly has been in everybody's mind.

It was his duty to maintain order and control the class. Of course it was, but that must be subject to the rules of the school. He has known perfectly well that to strike a pupil is both unlawful and contrary to the rules. He has repeatedly broken that duty. That is not the way to keep order. If you can only keep order by breaking the law, then that is not a proper way of keeping order. And then he says:

"To dismiss a teacher of some 30 years' service where other disciplinary measures short of dismissal could have been effectively taken because he left a class after being burnt by a boy whom he then slapped is unfair. To conclude otherwise is to conclude something which is clearly wrong."

We would say to that: That that is a conclusion which was entirely one for the Tribunal of fact. They had to decide whether it was clearly wrong for the employers to do this, and we cannot say that it was a perverse decision when they upheld the view in the sense of saying that this was within the reasonable bounds of what an employer in this position could conclude.

Then he makes the point again about disciplinary measures not having been previously invoked. It does seem to us that letters of the sort that the head master and then the head teacher, Mrs Rawlinson, wrote on these occasions could not possibly be overlooked by any sensible school master. Any person would regard the writing and receipt of such letters as almost a more severe penalty than an ordinary disciplinary hearing with formal warnings, or anything of that sort. But at any rate, we do not agree with the view which is put forward by Mr O'Brien on the significance and impact of those letters.

So having considered as carefully as we can, we have to ask ourselves is there any point of law disclosed here? Any irrationality? Any departure from the precedents? Any ignoring of the statutory provisions here on the part of the Industrial Tribunal? Having heard everything that has been said by Mr O'Brien, we all of us feel that there is no error of law shown by this Industrial Tribunal's decision. No irrationality. No perversity. The Tribunal approached its task, and appears to have carried it out, in an entirely lawful and proper manner, without making any of the errors of law which are alleged against it. In those circumstances the appeal to us, which of course we can only entertain if we find a point of law, falls to be dismissed.

}********************{

Mr Pearl for the Respondents then made a request for costs.

JUDGE HULL QC :

No, we none of us think that it comes within our rule allowing us to give costs in the case of unreasonable conduct. Whatever view we take of the merits of the appeal, we do not think that it can be said to be unreasonable.