MR M N COTTIS v THE GOVERNORS OF HIGHCROFT JUNIOR SCHOOL [2000] UKEAT 675_00_2911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 675_00_2911Case No Appeal No. EAT/675/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M N COTTISAPPELLANTTHE GOVERNORS OF HIGHCROFT JUNIOR SCHOOLRESPONDENT
Before
His Honour Judge J Altman Mr D J Hodgkins Cb Mrs M T ProsserDate 29 November 2000
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant JUDGE J ALTMAN This is an appeal from the Employment Tribunal sitting at Bristol over 6 days in January and March 2000 when they dismissed the application. Neither party has appeared before us today, and it appears that the Appellant has not been in correspondence with the Employment Appeal Tribunal since initially entering his Notice of Appeal.[2]The appeal comes before us today by way of preliminary hearing to determine if there is a point of law such as to justify this matter being argued in full before the Employment Appeal Tribunal. The facts of the case show that the Appellant began work as a class teacher in 1986 when the then headmaster was Mr Hill, and he, during his term as a head teacher found the Appellant's performance satisfactory.[3]He was succeeded in 1996 by Mrs Hart and in April 1997 there was an OFSTED inspection in which, as the Employment Tribunal found, the Applicant's performance in the classroom was described as being the subject of adverse comment. There was alleged to be no scheme of work throughout the school for the teaching of maths which was the Appellant's responsibility also. The Employment Tribunal found that although the Appellant produced two documents which were alleged to be an actual scheme of work, the Employment Tribunal rejected the suggestion that the OFSTED inspectors had had a misleading impression from the maths tests results because they were in error. The Employment Tribunal found that the report was based on observation and in his Notice of Appeal, the Appellant contends that there were a number of perverse findings of the Employment Tribunal. The first is that the poor showing of the Appellant meant that the report was worded so that he could be clearly identifiable; we have seen no evidence to contradict this finding of the Employment Tribunal that that identification was apparent or that the OFSTED inspectors did not have good grounds for their judgment, but of course the OFSTED inspectors are not the Respondents in any event.[4]The Employment Tribunal had the opportunity of comparing the documents produced by the Appellant and those of Mrs Hart, bearing in mind that presumably she prepared them because no others were available from the Appellant, and because of the OFSTED inspectors' view that there was no scheme of work. We find it hard to see any basis upon which it can be said that the Employment Tribunal were not entitled , as a matter of law, to endorse that view.[5]Next, the Employment Tribunal is criticised for accepting anything that Mrs Hart said in her evidence, on the grounds that the Employment Tribunal itself had, during the course of the hearing described her as "embroidering things" and had themselves in the decision in paragraph 28 clearly come to the view that some of her evidence was inaccurate and unfairly prejudicial. Just because a Tribunal makes a finding to that extent in relation to a witness, it does not require them to reject her evidence altogether; they are entitled to come to a conclusion as to her evidence as they saw her, and we see no evidence to justify the proposition that what she said should have been rejected in its entirety.[6]Further it appears that after the OFSTED inspection, the Appellant was moved to a lower class and required to produce a new scheme of work, being given time out of class for it. He produced it just before he went at his request on a year's exchange to New Zealand, and for which he was given leave.[7]Whilst he was away, Mrs Hart felt it was necessary to prepare the other scheme of work. The Employment Tribunal came to the conclusion, as we have already referred, that they understood why the earlier scheme of the Appellant was not of an acceptable standard.[8]It appears that in 1997, just before he left for a year in New Zealand, there was a school carol service. The Employment Tribunal have notes of a speech made by the Appellant which was critical of the parents, Mrs Hart and staff, and as a result of which she, her staff, parents, and Governesses were upset. After his return from New Zealand, the Appellant was interviewed and he received a verbal warning which the Employment Tribunal found had an element of unfairness in it, as it referred to some matters not previously canvassed with the Appellant.[9]Then in February 1999, there was an incident in the classroom in which, to gain the attention of the class, the Appellant struck a 4 feet long "T square" on the desk, and the Appellant complains that it was perverse of the Employment Tribunal to describe what happened as being:
" a circular movement from above his right shoulder with such force that it made the classroom assistant Mrs Flint jump."
The point about that incident is that the "T square" came down and injured the hand of a child that had happened to move it into the line of fire. The child sustained slight injury, and the Employment Tribunal went on to consider the implications of that, in relation to two matters: not only the issue of the degree of force in relation to it, but the fact that, although he had caused some injury to the child, the Appellant did not report the matter properly to the head teacher, who was left embarking on a damage limitation exercise of some proportions. We cannot see anything perverse, or indeed particularly relevant, in the way in which the movement by the Appellant, of his arm, could throw any light on the issues in the case, and the appeal does not really advance in any way on that point.[10]There is then criticism of the reference of the Employment Tribunal to the child abuse procedures which were followed, and the description of child abuse in paragraph 25 as being:
"Child abuse arises inter alia where a boy or girl under 18 has suffered physical injury perpetrated by an adult in a position of trust or authority."
It is suggested that an element of wilfulness is required, and that there was not any wilfulness here. That is an interesting concept, but after all the Employment Tribunal used the word "perpetrate" and we would have thought that embraced a concept of wilfulness, in any event, and we can see nothing wrong with that definition.[11]The next complaint is that the Tribunal failed to take account of the ill feeling that the head teacher had against the Appellant. It is clear to us on reading the decision, that the Employment Tribunal considered the extent to which they could rely on Mrs Hart and drew a distinction in her evidence between that which they could, and that which they could not rely on. There seems to be, thus, no perversity on the face of the decision in relation to the findings of the Tribunal about the calibre of the witnesses.[12]It is complained, also, that there was error in law on the part of the Tribunal, when in paragraphs 36 and 37 they referred to the possibility of the Appellant's bringing upon himself the conduct on the part of the Respondent of which he complained to the Employment Tribunal. In paragraph 36 they say:
"it is significant that the matters which caused conflict were always triggered by the applicant's own actions."
In paragraph 7 they point out that the difficulties following the OFSTED inspection came from the Appellant's failure to perform his duties as a maths co-ordinator, that the disciplinary action after the carol service followed from the speech he gave, that the permanent reduction in pay followed from his failure to prepare a satisfactory maths scheme when the syllabus changed, and that his conduct with the "T square" led to the suspension, which as we know was not going to lead to dismissal, but to a final written warning.[13]The Employment Tribunal then go on in some detail to express a view about the incident of injury itself. In those circumstances, the Employment Tribunal came to the conclusion that when the Appellant handed in his resignation he was not constructively dismissed, or unfairly dismissed. It seems to us that there were findings of fact which the Employment Tribunal were entitled to make and that, having made them, they were entitled to conclude that matters of conflict were always triggered by the Appellant's actions.[14]We have seen nothing in the Notice of Appeal, or in our reading of the decision which demonstrates any error of law, or perversity on the part of the Employment Tribunal, in reaching that decision. There being no arguable point of law, this appeal falls to be dismissed at this stage.