St Bonaventure's v Kempson [1996] UKEAT 515_95_2305

EAT

St Bonaventure's v Kempson

[1996] UKEAT 515_95_2305 · 1996-05-23

JUDGE HARGROVE Q.C. :

By reasons promulgated on 25th April 1995, the Industrial Tribunal held that the respondent had been unfairly dismissed. The decision was the subject of an application for review, and this was rejected on 31st May 1995.

The respondent was a history teacher at the appellant school from October 1974 until her dismissal on 31st August 1993. The reason given was capability.

The respondent had a stormy relationship with her superiors and colleagues. In December 1992 there was a confrontation between the respondent and her colleagues. On 16th December 1992 she was suspended. She never worked at the school again.

On 2nd February 1993 a disciplinary hearing began, but that was adjourned because of objections to its constitution and the fact that insufficient notice had been given and insufficient detail of the complaints made. That was followed by a discussion about early retirement.

On 9th March 1993 the hearing was again adjourned and a deadline of 16th March 1993 was set for acceptance of terms in relation to early retirement.

The tribunal found that subject to confirmation of pensions and benefits, at that stage conditionally, the respondent agreed to retire, but she then had second thoughts. She was not in any way bound by her original view and she consulted new advisers.

Her solicitors misunderstood the position and they at first alleged that there had been constructive dismissal. When matters were clarified the employer's solicitors said that matters would be investigated from the point of view of the respondent's health. A suggestion was made that the respondent's own general practitioner should provide a report and that disciplinary proceedings should be adjourned generally.

The general practitioner reported. That report contained the recommendation that the respondent should be allowed to retire on medical grounds. The respondent has violently objected to that in a number of ways. Here we summarise them in saying that she does not accept that the doctor was impartial, she does not accept that there was proper examination, and she does not accept the account which appears in that report of the manner in which the examination took place.

There was a meeting on 3rd May 1993. The headmaster's report was received. The medical evidence was read. The headmaster, the deputy headmaster, the respondent and her solicitor contributed. It should be noted that upon that occasion the respondent was represented and had the opportunity to put matters forward. She has, in her cross-appeal, urged before us today that that was an unsatisfactory hearing because she was not able to put forward witnesses and other evidence. She says that she was in the hands of her adviser and the matters were not urged as she would have wished.

On 6th May 1993, the respondent's solicitors objected that the meeting had proceeded inappropriately as a disciplinary proceeding. On 10th May 1993 the appellants wrote a lengthy letter of dismissal to the respondent indicating that her dismissal would be on 31st August 1993.

The respondent says and has said before us today, that she did not understand that letter as being a letter of dismissal. She was so traumatised that she was unable to take these things in.

The respondent got another medical report from a Dr Coid, he is a highly respected consultant. We have been urged by the respondent today to consider that matter and to consider the nature of Dr Coid's recommendations. Dr Coid could find no evidence of mental illness. That report of Dr Coid was sent to the appellant's solicitors on 19th July 1993.

There was a appeal hearing by way of re-hearing on 20th September 1993. On 24th September 1993 the appeal was rejected. The Industrial Tribunal was satisfied that the reason given was capability and held that the Code of Disciplinary Procedure for Teachers in Catholic aided Schools applied.

The Industrial Tribunal then found that the employer believed Dr O'Moore's report, plus the evidence of the deputy headmaster. Having taken those matters into account and the demeanour of the respondent in May, that the appellant had established that they dismissed her on the grounds of capability.

The crux of the problem occurs at the end of this extremely careful and painstaking set of reasons. Without in any way reflecting on any one in this case, this was on any view an extremely difficult case to try. The way in which the Industrial Tribunal dealt with matters was this. At paragraph 35 it was said:

"35 What troubles us in this case if the fact that the Applicant's employment was terminated at the end of the first committee meeting. In our view that was a breach of the school own procedure and in paragraph 5 of their disciplinary procedures on page 31 of the bundle of documents it reads:

"the provision that the dismissal of the teacher requires the consent of LEA no longer applies so that a two stage dismissal procedure is no longer available. To secure this governing bodies should have a two stage procedure within the school" and later in the document "the committee may decide to take no action against the teacher or to issue any type of warning or to take any initial or preliminary decision to dismiss him. In the last event the teacher should be entitled to appeal. He should be given at least 14 days written notice of a meeting to consider the appeal and should be entitled to be accompanied by a friend."

It then refers to the School Government Regulations which at Regulation 26(5)(a) provides again for there to be an "initial or preliminary decision as to the dismissal of any member of staff (referred to below in this paragraph as a) "first committee".

36 The history of the two stage process was that prior to the 1988 Education Reform Act the school would take the initial decision to dismiss and that decision would not take effect until after the local education authority had given its consent. That was known as the two stage procedure. It is clear from the Code that there was intended to be a similar two stage procedure within the school itself. In our view the reference to "initial" or "preliminary" decision means just that. The decision did not become under the procedure a final decision to terminate the employment until after the second committee had ruled. If that were not the case the words initial or preliminary would have no meaning whatsoever and as the procedure was intended to echo the old procedure of obtaining the local authorities consent prior to dismissal in our view the second committee or appeal committee must make a decision (unless the preliminary decision is accepted by the employee) before the employees contract is terminated. We take the view therefore that the letter of 10 May insofar as it purported to terminate the contract of employment of the employee was a breach of procedure. If was only after the second committee had met that the contract could then validly be terminated. For those procedural reasons we take the view that this was an unfair dismissal. On the other hand we are perfectly satisfied that it would have made no difference to the eventual result and that the second committee would have confirmed the initial decision made by the first committee in any event. In this case, in our view wrongly, the Applicant's employment had terminated at the end of August but the second committee did not sit until 20 September. That was unfair and the result of the unfairness was that the Applicant's contract of employment was terminated prematurely."

Before returning to that, we would draw attention to paragraph 37, which says this:

"37 With these guidelines the representatives of the parties expected that they would be able to settle the remedy arising from this decision that the case is adjourned generally with either party having liberty to reply for the Tribunal to consider remedy in the event they are not able to settle. We also encourage the Applicant to look closely at the pension available to her as the dismissal was by reason of ill health and it seemed to us likely that there may be enhanced pension terms available to her. She has not investigated this at the date of the Tribunal and we both urge her to do so and also for the school to make such information available to her as soon as possible."

The objection which was taken by the appellants here, is that there were a number of errors by the tribunal in reaching the conclusion it did. The first error was this: It is said that the Disciplinary Code was never a matter which was argued before the tribunal. Mr Hawthorne was invited to produce a copy which he did. Counsel for the applicant then, the respondent now, said he took no point. Not unnaturally Mr Hawthorne did not address the tribunal upon it. The tribunal considered it and it came as something of a surprise to Mr Hawthorne and those he represented when this matter at the very end of the tribunal's findings appeared as a decisive point against them. There is much merit in Mr Hawthorne's point that although pleadings in cases are not expected in industrial matters to be comprehensive, they should at least be informative. However, bearing in mind the wide scope of the evidence which can be admitted by the Industrial Tribunal, we do not think that that point would entitle us to overturn this decision.

The second point he makes is taht this became a procedure dealing with ill-health and capacity. The evidence for that was before the tribunal and is quite clear. There are two letters one dated 27th April 1993 from the appellant's solicitors to the respondent's solicitor setting out the following:

"... We confirm that the meeting NOT a disciplinary one and accordingly the disciplinary procedures and notes mentioned in your fax of the 20th April 1993 are not included in the enclosed bundle."

There is a prior letter of 30th March 1993 in which the following point is made:

" The meeting to consider whether it is suitable for your client's employment at the school to continue in its present form or all in the light of her state of health , will take place on Wednesday 5th May 1993"

That is summarised at the end of that letter where it is said:

"1. The disciplinary proceedings are adjourned sine die.

2. The employers seek a medical report for which your client's cooperation is required as soon as possible.

3. The employers have convened a meeting with your client to consider whether in the light of her state of health her employment should continue upon its current basis or at all."

Given that that alteration had taken place and that the disciplinary proceedings had been adjourned, with no date being set, it is said that the result is that the proceedings on 5th May 1993 were proceedings dealing with ill-health, they were not disciplinary proceedings. That does not mean of course that they have not got to be fair. But the point is made that the Code is a disciplinary code and strictly speaking does not apply to questions of health.

The powers of the school to deal with these matters are set out in Regulation 9 of the Education (Teachers) Regulations 1993 . The Regulations are in fact referred to in passing by the tribunal, but unfortunately an error has occurred, I do not think it is the tribunal's fault, that the date is given incorrectly.

It seems to us that there is must merit in the point which Mr Hawthorne takes. We have reached the conclusion that, in spite of the very best or endeavours, the tribunal is in error of law in concluding that this was procedure to which the Code applied. Quite plainly it did not. That leaves therefore, the question of what steps this tribunal should take. We could send this matter back for re-trial, but such are the strengths of the findings of this Industrial Tribunal and this being the only point where any type of procedural unfairness is alleged, we take the view that it is proper in this case for us to allow the appeal and substitute for the decision a finding that the respondent was fairly dismissed.

The respondent has placed before us a number of matters by way of cross-appeal. These in general deal with matters of facts which she wishes to have re-tried, alleging that conclusions have been drawn by the Industrial Tribunal with which she does not agree. I hope that I have explained it to her in sufficient detail that matters of fact are not matters for us and that we cannot re-try issues which she has raised on the cross-appeal. Accordingly the cross-appeal fails.