Knight v King Edward VI Grammar School- Louth [1998] UKEAT 963_98_0112

EAT

Knight v King Edward VI Grammar School- Louth

[1998] UKEAT 963_98_0112 · 1998-12-01

JUDGE PUGSLEY :

This is a case that comes before us by way of a preliminary issue. We say right away that the task for us here at this stage is to determine whether or not there is an arguable issue to go before a full tribunal, not whether or not that issue is likely to succeed. The test is whether it is arguable. In other words, whether it has a reasonable prospect of success. We would not for a moment wish the fact that we are going to give leave on certain grounds that are to be pursued to be taken by the applicant as a ground for false optimism that he is going to succeed. I am sure Mr Knight appreciates that.

May we say right away we do not consider that there is any realistic basis for alleging bias against the Chairman. We have read the Chairman's letter. This was a case where the members approved the draft. It was a decision of the tribunal. We accept the Chairman's contention that the fact that he precluded certain cross examination which he thought might be a breach of legal privilege did not indicate bias.

We have some reservations, but we think that it is just about arguable that there may be an issue as to whether the Chairman was right to exclude evidence of personnel advice given to the headmaster at that time. We think that might be just about arguable and we give leave for that ground to be pursued, but it is not a matter, we suspect, that would likely to be at the forefront of any full tribunal's mind in considering the overall case.

We accept that there is an issue of whether any tribunal properly directing itself could come to the view the appellant had committed the school to a payment of £10,000. We think there may be an issue there and we would like a notice of the evidence given by Mr Knight as to that issue.

Of more substance are three issues that have actually been raised by Mr Burns, though not, if we may say so, in the most direct and easily assimilated way. The first issue is whether, as a matter of law, an act of negligence can give ground to summary dismissal. This is an issue which undoubtedly has much authority in the older cases. The older cases concerning summary dismissal for incompetence or negligence certainly suggested that might well be the case, but there is at least now some grounds since the decision in London Chronicle Ltd

[1959] 1 WLR 698

, a body of authority that says:

"An employer's right of summary dismissal should be regarded as confined to cases of repudiation or fundamental breach of contract by an employee in accordance with general contractual principles."

It is no doubt the case that since the advent of unfair dismissal more cases have been brought and concerned with unfair dismissal, rather than wrongful dismissal, that, in our view, is a matter that can properly be said to be an arguable point of law.

Secondly, we consider whether the decision to dismiss was within the ambit of responses of a reasonable employer having regard to the assistance given to tribunals by Lock v Cardiff Railways Ltd

[1998] IRLR 358

is an arguable point of law.

We also consider, as a subsidiary issue, whether or not the tribunal's justification in its decision of relying on some substantial other reason is appropriate as it could be arguably said that a decision which is justified on some substantial other reason would not be redolent of the grounds for summary dismissal. We have regard in particular to the citation of law that follows at paragraph 3 of the decision of the tribunal.

The final matter on which we give leave is that in rejecting the appeal the appeals committee referred to:

"... no new evidence had been presented that the Staff Committee had acted unreasonably in reaching the decision it did."

Since the appeals committee had reheard the case as far as evidence was concerned, there is an issue of law as to whether having taken the option of rehearing it regarded itself as only having the power to review. But whilst these are matters that we believe are arguable, we are bound to say that the gravamen of the case is whether or not for an employee of this length of service the act, which it is alleged, led to the financial disadvantage of his employer is such that a dismissal was justified both under wrongful and unfair dismissal and that is really the heart of the matter which will be laid, we suspect, before the adjudication of the full tribunal.