London Borough Of Brent v Bermingham [1996] UKEAT 800_95_1406

EAT

London Borough Of Brent v Bermingham

[1996] UKEAT 800_95_1406 · 1996-06-14

MR JUSTICE BUTTERFIELD : This is an appeal against the decision of an Industrial Tribunal sitting at London (North) promulgated to the parties on 14 June 1995, that the Applicant, Mr Bermingham, had been unfairly dismissed by the London Borough of Brent.

The Respondent was employed by the Appellants as a teacher at the John Kelly Boys' School in Neasden in North London. On 9 February 1993 he was on a public service 'bus travelling to his home after a day's work at the school. There were a number of pupils from his school on the 'bus, together with schoolgirls from the sister school, John Kelly Girls' School. There were also some members of the public on the 'bus.

In the course of the journey there was some noisy argumentative and abusive behaviour directed at the Respondent by some of the schoolboys. It was alleged that the Respondent remonstrated with one pupil in particular, a boy called Robert Wall, who must have been aged about 15 and in so doing, punched Robert in the face. The incident was reported by Robert to his foster parents who, in turn, reported the matter to the headmaster, Mr Young, and asked him to investigate. In fact, Mr Young had already learned of the incident through Mrs Heaps, the head teacher of the girls' school. Two of the girls who had been on the 'bus at the material time had spoken to Mrs Heaps on the morning after it had happened.

The Respondent was suspended. Mr Young asked his deputy head to investigate the allegation and Mrs Heaps to arrange for the girls to make statements. A disciplinary hearing took place on 6 and 11 May 1993. At the hearing the employers called as witnesses the boy himself, Robert Wall, his foster father, who spoke of seeing a mark on the boy's face on the afternoon of the incident and two of the girls who had been on the 'bus. The employers submitted a further nine statements from other pupils, largely self-written and made within about three days of the incident. All the statements and the witnesses who gave evidence asserted in clear terms that the Respondent had punched Robert Wall, though there were considerable differences in the detail of their accounts. Mr Young himself also gave evidence about his investigation.

The Respondent gave his account to the effect that he had not struck Robert at all. He was supported in this by Mrs O'Connor, a member of the public who was on the 'bus at the material time, who had witnessed the confrontation, who had expressed herself disgusted by the behaviour of Robert Wall and who asserted that she did not see the Respondent strike Robert in any way at any time.

A written statement from the 'bus driver was also advanced on behalf of the Respondent.

After considering evidence and argument for a total of about 11 hours, the members of the disciplinary panel, by a majority of 2 to 1, found the allegation proved. The panel went on to consider penalty and determined that the offence amounted to gross misconduct, justifying dismissal. Such, indeed, was the penalty imposed. The Respondent appealed against the decision. His appeal was rejected.

The Industrial Tribunal held that the dismissal was unfair. In the central paragraph of their conclusions, they said this:

"25. Although we are aware of the dangers of substituting our view for that of the employer, we conclude that this investigation was flawed in that the Respondents relied on uncorroborated statements of school children and did not investigate further the details of the statements, nor the reason why the one pupil who was involved in the incident had not made a statement and was not called as a witness. The panel who concluded that the incident had taken place chose to disregard the only independent witness that was before them on the grounds that, in their opinion, she had children with her and could have been distracted and could not have seen the incident properly. A reasonable employer in those circumstances would have made a further investigation to have satisfied themselves that these statements were made independently and objectively and have queried the differences in the date of the statements and the omission as stated above."

The distillation of the reasons that are given is that there was no statement from a girl called Amanda, who had, according to several witnesses, pulled Robert Wall away from the Respondent after he had been punched. There was no investigation into the reason why Amanda had not made a statement and no explanation was offered to the disciplinary panel for her failure to give a statement or the failure of the employers to call her to give evidence.

The second reason emerging from the passage to which we have referred is that the employers relied on evidence and statements of schoolchildren, not corroborated by an adult and in direct conflict with the evidence of the Respondent and his independent witness. The Tribunal held that before relying on such evidence, in such circumstances, any reasonable employer would have made a further investigation to satisfy themselves that the statements and the evidence upon which they were intending to rely had been made independently, objectively, without collusion or collaboration.

The Industrial Tribunal further concluded that the appeal panel was not completely unbiased and objective because the Chairman of that panel had sat on an earlier disciplinary hearing involving the Respondent. Nothing turns on that finding because it is accepted rightly by Miss Morgan on behalf of the employers that the appeal hearing was not a rehearing of the merits and, accordingly, if the merits hearing was in some way flawed, the appeal hearing could not have rectified the situation.

In the light of the conclusion to which we have referred the Industrial Tribunal found that the Appellants had not conducted a reasonable investigation into the allegation and could not reasonably have found that the misconduct alleged took place. The Appellants' employers appeal against that finding.

The appeal is based on three broad propositions. Firstly, that the Tribunal in reaching its conclusions have substituted their own views on the merits of the evidence produced before the disciplinary panel for that of the disciplinary panel and in so doing have fallen into error. Secondly, in so far as they have held that the investigation was flawed for the reasons we have sought to identify, they applied too high a duty on the employer and too stringent a test to the investigation. Finally, the Appellants submit that the conclusions of the Tribunal were perverse in the legal sense of that word.

We remind ourselves that a decision of an Industrial Tribunal can only be stigmatised as perverse in exceptional circumstances. It is the duty of the Industrial Tribunal to find the facts, apply the relevant law and to reach the conclusions to which its findings and the experience of its members lead. When a Tribunal has fulfilled that duty it will be seldom that it could legitimately be said that its conclusion offends reason or was one to which no reasonable Tribunal could come.

As to the first ground advanced by Miss Morgan on behalf of the Appellants, we have carefully reviewed the language of the decision and the way in which the Tribunal expressed itself. We can find no support for the proposition Miss Morgan advances to the effect that the way in which the decision is recorded gives rise to a belief that the Tribunal was substituting its own view of the facts for that of the disciplinary panel. The question for the Tribunal was whether a reasonable employer, faced with the evidence collected in the way in which this evidence was collected and the evidence adduced before it at the hearing, had acted properly and fairly by determining the disciplinary proceedings on that evidence.

The Industrial Tribunal concluded that a reasonable employer would not have determined the disciplinary proceedings at that point, bearing in mind the stark conflict between the evidence of the children, on the one hand and the evidence of the Applicant, supported as he was to the hilt by a wholly independent adult witness on the other hand. The Tribunal concluded that the employers should have called a halt at that point and caused further inquiry to be made.

In our judgment that is the finding that the Tribunal made. They did not find that Mrs O'Connor was telling the truth or that Robert Wall and the witnesses who supported his version, were telling lies. They simply held that a reasonable employer would not have found the investigation, as it was carried out, was adequate and would have required more.

As to the submission that the Industrial Tribunal required the employers to apply too stringent a test, that is quintessentially a matter for the experience and judgment of the Industrial Tribunal determining this matter. They, the industrial jury, set the standard and it cannot be said, in the circumstances of this case, that the test they applied went beyond the test that a reasonable Tribunal, properly considering this matter, would have applied.

Finally, on the issue of perversity, we take the view that the employers do not begin to establish a case on that ground. The issue, in this case, as in so many, was simply this: did this employer, upon the facts and circumstances reasonably accepted by him at the relevant time, act fairly and reach a reasonable and reasoned decision? In the present appeal the Industrial Tribunal found that the employers had failed to satisfy them upon that test. We can find no flaw in the reasoning of the Tribunal.

It may well be that another Tribunal, hearing the self-same evidence, might have reached a different conclusion on the facts but that is nothing to the point so far as an appeal on a point of law is concerned.

We detect no error in the way in which the Tribunal approached this matter or in the way in which they expressed their reasons. In those circumstances this appeal will be dismissed.