Pumfrey v Chartwells [1997] UKEAT 164_97_2710

EAT
Pumfrey v Chartwells
[1997] UKEAT 164_97_2710 · 1997-10-27

JUDGE PETER CLARK :

This is an appeal by Mrs Pumfrey, the applicant before an Industrial Tribunal sitting at London (South) on 5th December 1996, against that tribunal's decision, promulgated with extended reasons on 16th December 1996, to dismiss her complaint of unfair dismissal against her former employer, the respondents Chartwells.

The Facts

The appellant commenced employment with the London Borough of Croydon at Coulsdon High School in 1987, having started her employment with that Authority in 1983. In October 1988 she became an assistant cook. In July 1995 the school attained grant maintained status. The catering function was contracted out to the respondents. The appellant's employment was consequently transferred to the respondents.Following the transfer the appellant was issued with the respondents' employee handbook. It was common ground that the handbook formed part of her terms and conditions of employment.The handbook set out a disciplinary procedure which included a non-exhaustive list of disciplinary offences which would normally result in summary dismissal. Included among those offences were the following:

"ii) Assault

vii) Flagrant disregard of Company or Client Company Rules and Regulations.x) Use of foul language or any act that violates commonly accepted standards of behaviour."In January 1996 the appellant was the subject of an oral warning for rudeness to the Deputy Head Teacher.On 5th June 1996 two incidents occurred. The circumstances are set out in paragraphs 9 and 10 of the tribunal's reasons thus:"9. On 5 June 1996, the Applicant was involved in an incident in the canteen, when a pupil complained about a hair in her food. Another pupil, called "Serena", intervened by adding her voice to the complaint. The Applicant tapped her on the shoulder and told her to mind her own business. Later, Serena came to the kitchen, used bad language to the Applicant and stated that the Applicant should not have touched her.10. Later on 5 June 1996, Mrs Thomas who was running the tuck shop encountered difficulty with a pupil, a boy called Ronald. He slapped Mrs Thomas across the face and then refused to leave the tuck shop until the Head Teacher came. Mrs Thomas called out to the Applicant to ask her to bring the Head Mistress, Miss Mennie. Mrs Thomas could not leave the Tuck Shop herself because it was full of pupils. The Applicant went to look for the Head Mistress, and could not find her, nor any other teacher. She returned to the Tuck Shop and was told by Mrs Thomas what Ronald had done. The Applicant then took hold of Ronald's arm, gently, to usher him out. He refused to leave. The Applicant then went and brought back a dinner supervisor, a teacher, who removed the boy from the Tuck Shop."Following those incidents the appellant was suspended pending disciplinary action. On 13th June a disciplinary hearing took place before Miss Lynch, the respondents' Assistant Operations Manager. A trade union official, Mr Lund attended as the appellant's witness, but without representation rights.The tribunal found that although the children involved gave a different version of events to that of the appellant, the respondents proceeded on the basis of the appellant's version, as described above.Miss Lynch decided that the appellant was guilty of gross misconduct meriting a summary dismissal. So far as she, Miss Lynch, was concerned there was a clearly understood rule that a member of the respondents' staff should never touch a child. The appellant accepted that she had touched both Serena and Ronald. Further, Miss Lynch found that the appellant had verbally abused Serena. She concluded that the appellant had breached rule (x) of the summary dismissal offences contained in the respondents' handbook.The School displayed a written Code of Conduct signed by the Head Teacher on the notice board, which stated in terms:
"Touching or manhandling pupils is absolutely forbidden in the light of recent cases where school staff have been prosecuted by parents.
This code is clearly understood by the school's employees and by the catering staff who were formerly employees of Croydon LEA."We shall refer to that statement as the "no-touching rule".Miss Lynch did not enquire, at the disciplinary hearing whether the appellant was aware of the no-touching rule. She assumed that knowledge on the part of the appellant.During cross-examination before the Industrial Tribunal, the appellant said this:
"I have never seen notice about touching: we do not walk around the school. I did not think that there was any rule about touching pupils. I thought a touch on the arm all right: but punching, kicking, slapping not allowed."
Miss Lynch's dismissal letter dated 13th June recited that during her interview the appellant had admitted that she "had physically and verbally abused the pupils concerned". The tribunal described that summary as a substantial exaggeration of the true position.Following her dismissal the appellant appealed to Mr Rintoul, the respondents' Senior Operations Manager. The tribunal found that he upheld the reasoning of Miss Lynch in dismissing that appeal.

The Industrial Tribunal Decision

Having set out the facts as found, the rival submissions of the parties, and referred to the relevant law, and also the ACAS Code of Practice the tribunal found that the reason for dismissal related to the appellant's conduct. There is no challenge to that finding. It went on to find that in dismissing for that reason the respondents acted reasonably for the purposes of s.98(4) of the Employment Rights Act 1996 and in particular, found that dismissal fell within the band of reasonable responses open to the respondents.The critical findings are contained in paragraph 21 of the reasons, which we shall set out in full:
"21. It would have been infinitely preferable if there had been a clear statement in writing to the Applicant and other employees in her position that any touching of children was forbidden, and that rule had been recorded as communicated. Such an approach is common practice in many fields of business and industry. It did not happen in this case. However, we are satisfied that the Applicant must have known, if she thought about it, that such a rule existed. It is a matter of general experience and knowledge. In this School, it is clear that such a code did exist, and even if we accept the Applicant's testimony that because she did not walk through the School, she did not see the code on any notice board, it must have been the subject of discussion amongst the teaching staff and the catering staff. It follows that if she knew that there was such a rule, she must have appreciated, if she had addressed her mind to it, that what was referred to in the rules of gross misconduct as normally accepted standards was the 'no-touching' rule. We believe that part of the difficulty which arose in this case for the Applicant was that after so many years in local authority service, she was faced with a difference of culture and approach on the part of the Respondents, and what she had considered acceptable behaviour was no longer regarded as acceptable behaviour. We believe this is now there came to be references, including the verbal warning, to situations of rudeness on her part. That is why we refer to the matters she would have appreciated, and should have appreciated, if she had addressed her mind to them, because it appears to us to be likely that she effectively closed her eyes and her mind to the full extent and rigour of the set of rules of conduct under which she was working at the time of her dismissal."

The Appeal

Mrs Cleave has argued the appeal on the basis of perversity, as that expression is understood from the various epithets helpfully collected by Mummery J in Stewart v Cleveland Guest Engineering [1994] IRLR 440 , at page 443. Whilst recognising the uphill task facing an appellant relying upon this ground of appeal, she has attractively summarised her case by way of three propositions:(1) on the facts of this case the respondents had no clear "no-touching" rule. They were driven to rely on rule (x) in their handbook. Such a clear rule was essential if the appellant was to be summarily dismissed for touching the two pupils.(2) the hypotheses advanced by the tribunal in its reasoning contained in paragraph 21 of the reasons was flawed and illogical, such that it was perverse.(3) the tribunal appeared to have proceeded on the basis that the respondents did have a clear "no touching" rule when in fact it did not.We shall examine those propositions in turn.

The need for a clear rule

Before the Industrial Tribunal the appellant, through Mrs Cleave, relied upon paragraph 8 of the ACAS Code of Practice, that employees should be made aware of the likely consequences of breaking the employer's rules. That follows on from paragraph 6 and 7, that rules should not be so general as to be meaningless and that management should make every effort to ensure that employees know and understand them.These requirements of good industrial practice have been the subject of a number of appeals from Industrial Tribunals to this tribunal. Mrs Cleave has taken us to various of those cases. We need not set them out in extenso . The general thrust of the appeal decisions is that it is a matter for the Industrial Tribunal to exercise its judgment as to whether the employer acted reasonably or not. On one set of facts, for example, it will be open for an Industrial Tribunal to find that the employer, even where he has agreed a disciplinary rule with the recognised trade union, has not drawn it to the attention of the employee before dismissing him, so that the dismissal is unfair; see W Brooks & Son v Skinner [1984] IRLR 379 ; in another case it may be that the rule is not sufficiently clearly communicated to the employee; see Meyer Dunmore International Ltd v Rogers [1978] IRLR 167 . However, as Phillips J pointed out in that case, it is the Industrial Tribunal which will have the last word. Absent perversity, it is not for this appeal tribunal to interfere with the judgment of the industrial jury.On the facts in this case we understand the tribunal's reasoning to be as follows: the School had a clear "no touching" rule, which was posted on the School notice board. Even if the appellant had not seen that notice, as she told the tribunal in evidence, the tribunal drew the inference that the School rule must have been the subject of discussion among the catering staff, an inference which Mrs Cleave accepts she cannot challenge, being one which the tribunal was entitled to draw. Finally, the tribunal concluded that in these circumstances the appellant knew or ought to have known that the respondents' rule (x) included, amongst the acts which violate commonly accepted standards of behaviour, the touching of pupils.Despite the sustained submissions of Mrs Cleave, we are unable to say that such reasoning is fatally flawed. It is a process of reasoning which was open to the Industrial Tribunal; equally, it could have found that the respondents' rule was too vague and that the likely penalty for touching a pupil had not been sufficiently spelled out to the appellant, but it did not.We think that the tribunal asked itself the correct question, on the facts of this case, at paragraph 22 of the reasons:
"22 ... did the employers reasonably believe that there was a breach of the rules in that what she did was an act that violated commonly accepted standards of behaviour?"
They answered that question in the affirmative and concluded, permissibly in our judgment, that the dismissal was fair.Finally, and for completeness,, we reject Mrs Cleave's third proposition, that the tribunal, particularly in the last sentence of paragraph 24 of the reasons, appears to have proceeded on the basis that the respondents had a clear no touching rule. That is not the way that we read the tribunal's approach, looking at the reasons as a whole. We think their reasoning is as set out earlier in this judgment.It follows that no error of law has been made out in this appeal, and accordingly it must be dismissed.