MR GRAHAM ATKIN v THE GOVERNORS OF THE GROVE PRIMARY SCHOOL SURREY COUNTY COUNCIL [2001] UKEAT 177_00_1511

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 177_00_1511Case No Appeal No. EAT/177/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR GRAHAM ATKINAPPELLANTTHE GOVERNORS OF THE GROVE PRIMARY SCHOOL SURREY COUNTY COUNCILRESPONDENT
Before
His Honour Judge J Altman Mr A E R Manners Mr G H WrightDate 15 November 2001
[1]APPEARANCES For the Appellant MS E CAMPBELL (Representative) For the Respondents MR J MOFFETT Instructed By: Mr M Graham Surrey County Council Legal & Committee Services County Hall Kingston upon Thames Surrey KT1 2DN JUDGE J ALTMAN : This is an appeal from the Decision of the Employment Tribunal sitting at Croydon over six days between November 1997 and October 1999. The Employment Tribunal dismissed the Appellant's claim for unfair dismissal. The Appellant was dismissed without notice, ostensibly for gross misconduct, and having dismissed the complaint of unfair dismissal and having found that there was gross misconduct the further claim by the Appellant for breach of contract arising out of the failure to give due notice of termination of employment was also dismissed.[2]It was the Appellant's case that the incorrect disciplinary procedures were used by the Respondents and that such misconduct by him as was admitted did not constitute gross misconduct. Underlying this is the belief of the Appellant that the Respondents wished, for personality and other reasons, to terminate the Appellant's employment. It is contended on his behalf that the deviations from the proper procedure were such as to permit the exercise of improper influence by those who wished to terminate the Appellant's employment irrespective of the items of conduct complained of. It is also contended that conduct which was more properly to be characterised as misconduct was treated as gross misconduct for, with the Appellant's unblemished record before that, such categorisation was an essential precursor to the entitlement to terminate employment.[3]The Employment Tribunal found that at the time of his dismissal in October 1996 the Appellant had worked for 24 years as a teacher, with an excellent record, teaching older children in the 10 to 13 age range throughout most of that time. However about two years before the dismissal and due to school amalgamations the Appellant became a primary schoolteacher under the headteacher Miss Cooper. The Employment Tribunal found that there was not a good professional relationship between them and that she was expressing concerns about the quality of the Appellant's teaching and his competence. For his part the Appellant found that he was being bullied and undermined and by January 1995 he feared for his job. Then in September 1995 he was given a year group to teach, of which he had had no experience.[4]In addition to his normal duties there was an after school gymnastics club run independently by its own committee of which the Appellant had been the active force in running the club for some 20 years. In January 1996 the Appellant was given a present of a bottle of brandy from one of the parents of the club. The Appellant left it at the school and the Employment Tribunal found that "it went missing".[5]The incidents giving rise to the alleged misconduct then occurred. First the Employment Tribunal found that the Appellant challenged a girl Cara in such a way that the child became confused and tried to suggest different places where she could have left the bottle, a complaint was received from her mother that she was upset by the Appellant's questioning and threat of police action. The mother took the opportunity of complaining additionally that the Appellant had taken two glasses of wine to the Gym Club and had drunk them with someone else. The caretaker then came forward and gave a statement to Miss Cooper adding that he had seen the wine incident and had also seen the Appellant take a bottle of wine from the staff room and that the Appellant had sworn him to secrecy as to drinking in school.[6]The Headmistress met the Appellant twice and during the second meeting the Employment Tribunal found that he first alleged that the allegation of drinking at the Club was a lie but that when Miss Cooper referred to her statement from the caretaker the Appellant then admitted that he had drunk wine in the Gym Club and that he had lied to the headmistress and that he had "stolen" a bottle of wine from the Staff Room.[7]On 23 January 1996 the Appellant was suspended and he was also off sick until 1 July. It appears that the suspension was effected by Miss Cooper herself.[8]The Employment Tribunal then turned to examine the procedural steps taken by the Respondents. In the light of the arguments of the Appellant it is important to examine these in some detail.[9]On 29 January Miss Cooper wrote to the Appellant confirming the allegations, making arrangements for a "Governors' hearing" on 16 February and setting out the allegation against the Appellant as being the inappropriate treatment of Cara, the theft of a bottle of wine, the lying to the headteacher, asking the caretaker and a parent "to change their information" and failing to report "the above". Further, two important events took place on 1 February. First Miss Cooper wrote to the Appellant notifying him of the three Governors on the hearing panel including Mr John Case, the Chairman of the Governors. Secondly, on the same day Mr Case himself wrote to all the Governors about the hearing and notifying them of the three persons on the panel. At the time the allegations were of "serious acts of misconduct".[10]The Employment Tribunal found that on 13 February 1996 at a full Governors' meeting the constitution of the hearing panel, and the constitution of the appeal panel were confirmed. After postponements the disciplinary hearing was set for 2 September and on 22 August the Appellant's Solicitor wrote to request that Mr Case stand down. This he did and wrote to the Appellant's Solicitor on 27 August notifying the people on the revised panel.[11]The Employment Tribunal found that the disciplinary hearing took place on 2 September. They found; "The hearing was conducted properly and fairly and witnesses were called and questioned and [the Appellant] and his Solicitor were allowed to present their side of the case."[12]It is clear from the context of the Decision that the Employment Tribunal were there making a finding as to the actual way in which the hearing was conducted in itself. It is common ground, however, that the meeting was established to deal with allegations of "serious misconduct" but that it was during the hearing itself that "gross misconduct" was stated as the matter under investigation and it is common ground that the Appellant's Solicitor objected to that during the course of the hearing itself. The decision of the panel was that there should be summary dismissal for gross misconduct. The procedures provide that the actual dismissal has to be effected by the local authority. The reasons given in the written Decision related to two matters, the consumption of alcohol whilst in charge of students at the Gym Club, being closely related to the school, and in "repeated" lying to the headteacher.[13]There was a Governor's meeting on 2 October, the minutes of which show that the Chairman reported what is called "Chairman's action" and under that head the Governors "approved and confirmed" the changes to both the disciplinary panel, which had already determined its results, and the appeals panel which was yet to take place.[14]The appeal took place on 8 October. The appeal was rejected. The decision records a finding that the Appellant admitted lying to the headteacher during the two meetings on 19 and 22 January, "at least initially". They reached the conclusion which led to their confirming the view that there should be summary dismissal for gross misconduct as being based on the conduct of the Appellant in relation to the "Cara incident", the consumption of alcohol, the removal of a bottle of wine from the Staff Room, and the "repeated" lying not only to the headteacher but, as they found, to the appeal hearing.[15]So far as procedure is concerned the Employment Tribunal found that:
"We do not find any breaches of the law in relation to the constitution of the hearing panels or in relation to the actions of the Governors" ; The general constitution of the Governors and the powers that they can delegate or that other officers can execute are strictly governed by statute and regulations drawn in accordance with powers under statute. They are clearly designed, amongst other things, to ensure independence not least in relation to disciplinary hearings. The Appellant maintains that the Employment Tribunal erred in law in their finding that there were no breaches. It is clear that because of that finding it was not necessary for the Employment Tribunal to consider whether, if there were any breaches, that formed any substantial part of the dismissal or affected in any way the fairness of the dismissal and it was unnecessary for them to consider, and they did not consider, whether the appeal hearing corrected any possible errors in the first hearing. It is accordingly important to establish whether this essential ground of appeal is correct. We have considered The Education (School Government) Regulations 1989 . The background is the Education Act 1996. Section 27 provides that: "(1) The Local Education Authority shall not dismiss a person employed by them to work solely at the school except as provided by paragraph 23."
Paragraph 23 provides:
"(1) Where the governing body determine (a) that any person employed to work at the school should cease to work there … they shall notify the local education authority in writing of their determination and the reasons for it."
That the power resides with the Governors is made clear in section 21; "(1) the regulation of conduct and discipline in relation to the staff of the school … shall be under the control of the governing body. (2) the governing body shall establish (a) disciplinary rules of procedures. The power to suspend under section 22 of the Education Act gives to both the governing body and the headteacher the power to suspend."[16]Where there is an allegation of gross misconduct this is dealt with specifically by the model disciplinary procedure. It provides for immediate suspension on full pay and provision is also made for the position where the Governors, consider a complaint to constitute gross misconduct, for the Clerk to the Governing Body to notify the County Education Officer of the "intention to hold a disciplinary hearing at which the possible dismissal of the employee or some other disciplinary action is to be considered."[17]On the basis of that procedure the question arises as to whether the Governors as a body took the action; and associated with this arises the question as to whether not only the local authority, but also the employee himself, were notified in advance of an allegation of gross misconduct. One of the complaints of the Appellant in this case is that there was no allegation of gross misconduct until the actual disciplinary hearing. The objection was taken at the time by the Appellant's Solicitor. The regulations made in accordance with the Act provide for the circumstances in which decisions and related matters are to be dealt with by the full body of Governors or a sub-committee or the Chairman under what is called "Chairman's action". Regulation 14 provides:
"Proceedings and minutes (1) Any question coming or arising before the governing body of the school shall be decided by a majority of the members thereof present. Regulation 19 provides for the convening of meetings there will be at least 7 clear days notice with the proviso that "
Where the chairman or in his absence the vice-chairman so directs on the grounds that there are matters demanding urgent consideration it shall be sufficient if the written notice to convene a meeting and the copy of the agenda therefor are given within such short a period as he specifies." The powers of the Chairman are dealt with in Regulation 23; "(1) The chairman … of the governing body of a school shall, in the circumstances mentioned in paragraph (2) below, have power to discharge, as a matter of urgency, any function of the governing body of the school. (2) The circumstances are that a delay in exercising the function would be likely to be seriously detrimental to the interests of the school, or to the interests of any registered pupil of the school, his parent, or a person employed at the school. (3) In paragraph (2) above, 'a delay' means a delay for a period extending beyond the day preceding the earliest date on which it would be reasonably practicable for a meeting of the governing body to be held. (4) Where any function of the governing body of a school has been exercised by the chairman or vice-chairman of the Governing Body of the School in exercise of the power in sub-paragraph (1) above, the Chairman or Vice-Chairman, as the case may be, shall report any action or decision taken in relation to that function to the next meeting of the Governing Body."[18]This power for a Chairman to take action, called "Chairman's action" is of course to be distinguished, as Miss Campbell for the Appellant points out, from the general power of delegation of the governing body set out in regulation 25. It is pointed out that regulation 25(2)(v) makes clear that a Chairman cannot have delegated to him the power to delegate itself. Accordingly the actions of the Chairman at any time in relation to the circumstances of this case, in order to be valid, must be justified either as "Chairman's action" in cases of emergency under regulation 23 or, arguably, and we return to this, by subsequent ratification by the governing body as a whole.[19]The Employment Tribunal deal with this in paragraph 19 of their Decision and, given their reasons for finding no breaches of the law in relation to the constitution of the hearing panels or in relation to the actions of the governor, they find:
"The first disciplinary panel was properly constituted and the constitution of the panel was approved at the Governors meeting on 2 October. The two panels had been approved at the Governors meeting on 13 February 1996. The changes to the panels and the Chairman's action, had been approved at the Governors meetings on 2/4 October 1996. It was not unlawful for the Chairman to take his Chairman's action, given that the request for a change had come only a matter of days before the hearing was due to take place on 2 September 1996."
[20]Accordingly the Employment Tribunal give as their reasons that the two panels had initially been approved, that the changes were approved and that the Chairman was entitled to take Chairman's action because of the short notice he had been given. As to the February 1996 process, the Employment Tribunal found that it was on 1 February, some two weeks before the meeting of the Governors, that the headteacher wrote notifying the composition of the panel to the Appellant and the Chairman wrote to the Governors telling them who would be on the panel. There is no finding of the Tribunal that at that time such Chairman's action could be justified as having taken place as being in a case of urgency under regulation 23. As to the later changes to the panels the Tribunal gave as the reason the shortage of notice. However, in order to entitle a Chairman to act under regulation 23 there are two hurdles to be crossed. First of all there must be the fact that there would otherwise be a delay beyond which it would be reasonably practicable for a meeting of the governing body to be held. In this connection, bearing in mind that the request for a change on 22 August came some 10 days before the date set for the hearing and bearing in mind that the rules provide for 7 days' notice of a meeting which even then can be abridged, it is not clear how the Employment Tribunal came to the conclusion that it was not unlawful for the Chairman to take his Chairman's action. Even if we read into the decision of the judgment that the shortage of notice did not give time to convene a governors meeting in a way that was reasonably practicable, the Employment Tribunal do appear to have erred in failing to consider the second hurdle which has to be crossed before Chairman's action can be justified. That arises because the urgent action as an alternative to delay can only be exercised where the interests of the school, a pupil, a parent or a person employed there, would be affected in a way that it would be "seriously detrimental". In finding that the Chairman's action was not unlawful, therefore, it appears that the Employment Tribunal did not specifically consider any of the very narrow circumstances in which such action is permitted by regulation in regulation 23(2). It is important not to be over-pedantic in the analysis of the Decision of an Employment Tribunal, not least where, as here, there has been the obviously most painstaking and careful receiving and analysis of evidence, but we are driven to the conclusion that there is not the evidence (and certainly not the findings of fact) upon which an Employment Tribunal properly directing itself could reasonably come to the conclusion that any of those conditions had in fact been met.[21]This does not seem to us to be merely a matter of legalistic procedure and a failure to dot an "i" or cross a "t". The need for independence of Governors and the need for an employee to have a fair hearing are clearly at the heart of these regulations. We agree with the submissions of Miss Campbell that the procedures for appointment and discipline are constructed in the way they are, and observance is important, so as to prevent the abuse of power. It is rightly said that their interpretation is not a technicality and they affect the whole disciplinary process. This is in a way illustrated by this case, as has been argued before us. There is no material before us for us to conclude that there was any real evidence that the Chairman was in any way biased or partial. However that was the perception of the Appellant and the Chairman had been asked to stand down. The disciplinary offence involved a conflict between the Appellant and the headteacher. Against the background of a case in which it appears to be being suggested by the Appellant that he believed there were reasons of partiality and other factors which were the true reason for dismissal, it does seem to us that this was an important fact for the Employment Tribunal to consider, when both the headteacher and the Chairman could be said to have pre-empted the initial choice of the panel by the governing body and the headteacher could be said to have pre-empted their choice when he later changed the constitution of the panels. Accordingly we conclude that the Employment Tribunal erred in its application of the facts, as found by them, to the statutory procedures to which we have referred in concluding that the "first disciplinary panel was properly constituted" or in finding that "it was not unlawful for the Chairman to take his Chairman's action" in relation to the change of panel later in the year.[22]The Employment Tribunal also found that the constitution of the panels was approved at the Governors' meetings in February and October. It is submitted on behalf of the Respondents that a governing body is fully entitled to ratify, after the event, action such as this taken by a Chairman and to adopt as their own panels which he has constituted in that way. We have not examined that proposition in great detail but assuming it to be correct for the purpose of this judgment, it is pointed out by Miss Campbell that in relation to the second such ratification it took place not only after the panels had been reconstituted but after the disciplinary interview had taken place and dismissal had been resolved upon. It is suggested that ratification could not properly take place without full information as to the facts. We assume this to mean that the Governors would have to consider whether or not there was compliance with regulation 23. We are doubtful about the validity of this point in itself because no doubt a governing body must, to some extent, be left to determine the information it requires to receive before deciding whether or not to approve and confirm the actions of a Chairman. However, when considering this aspect in the context of the decision of the Employment Tribunal, we are driven to conclude that although the Tribunal found that the procedure was fair, that was based in part on their assessment of the lawfulness of the Chairman's action. Bearing in mind the background criticism of the Chairman and headteacher that was one of the features of the evidence in this case, it must follow that had the Employment Tribunal been aware of breaches of law in the constitution of the panels, they may properly have come to a different conclusion as to the fairness of the procedures. Accordingly we find that the error of law which we have identified was a substantial one in the context of the reasoning of the Employment Tribunal in this case.[23]Mr Moffett for the Respondents makes two further points. He submits that if there was an error in the constitution of the first disciplinary hearing then it was corrected on appeal. Further it is submitted that even if there was some error in identifying a particular piece of legislation as it applies to the facts as found the overall decision of the Employment Tribunal was plainly and unarguably right. However the Employment Tribunal itself did not consider whether the appeal cured any earlier defect and in a case where it is the Appellant's argument that these were not purely procedural errors but rather the procedure was diverted from so as to give expression to the partiality of which the Appellant complained there do not seem to us to be the findings of fact before us which compel us to conclude, as an appellate body, that the appeal corrected any errors of the first disciplinary hearing. Furthermore the judgment that a decision is "plainly and unarguably right" is, it seems to us, to be distinguished from the proposition that a fault in procedure might give rise to an unfair dismissal even though with the application of a proper procedure there would probably still have been a fair dismissal. In the latter case the finding is still of an unfair dismissal. We reject those two arguments of the Respondents.[24]Accordingly ground 1 of the Notice of Appeal succeeds.[25]In ground 2 complaint is made that the Employment Tribunal wrongfully exercised its discretion to exclude much of the Appellant's witnesses evidence. There was curtailment of evidence in this case. We are told that some of those witnesses were intended to give evidence of bias on the part of the Chairman and headteacher. One Governor, Mrs Crossley, was going to give evidence and whilst she was permitted to give evidence we are told that that which involved allegations or evidence or bias against Mr Case and the Chairman of the two panels was effectively struck out. We direct ourselves that paragraph 9 of schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 provides that the Tribunal shall … "conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings." We are also mindful of the fact that this hearing lasted many days and the Tribunal; as appears from their Decision, clearly took enormous care in the receipt and analysis of the evidence and arguments before them. Whilst there may be cases where the exclusion of the evidence goes beyond that which any reasonable Tribunal operating its discretion could reasonably justify, we see no evidence in this case that that is what has occurred. We recognise that evidence of bias was highly relevant but this was a very long hearing and we also recognise that the Tribunal were driven by the need to try to create a boundary around that evidence they were to receive. We reject the argument that the Employment Tribunal erred in law in the exercise of its discretion to exclude such of the Appellant's evidence as was excluded.[26]Associated with this is ground 3 which complains of the requirement for the Appellant to submit witness statements in advance where the Respondents were not also so required as being in breach of the principle of equality of arms. However we have been told that this occurred between hearings, during an adjournment, and the Tribunal were wanting to plan the hearing and consider who should be called and the requirement was made for that purpose. "Equality of arms" does not always mean "the same arms" but it does require that a Tribunal is satisfied that each party has a proper and substantial opportunity for a fair hearing and to present its case in a fair way. It was clearly the sort of procedure that arose during the hearing itself as a means to deal with it expeditiously, and we consider it was well within the normal exercise of discretion by a Tribunal. Had there been a true inequality where, for instance, a Tribunal, before the hearing takes place, imposes a requirement on one party to give their evidence to the other but says that the other need not reciprocate, then there would be a justifiable ground of complaint. But it is important to bear in mind the way in which this matter arose and the stage of the proceedings in which it arose and when one does it seems to us clear that there was no error of law on ground 3.[27]In ground 4 the Appellant argues that the Employment Tribunal erred when they found at paragraph 22 of the Decision that "the dismissal was effected properly and in accordance with the proper procedure by Mr John White of the Local Education Authority, by way of his letter dated 11 October 1996". It is argued that where paragraph 23 of schedule 14 of the 1996 Education Act provides that the governing body must notify the Local Education Authority of a decision to dismiss, paragraph 25 requires the governing body "also" to make arrangements for giving any person an opportunity of appeal. It is argued that in this case it was the finding on appeal that was treated, effectively, as the reason for dismissal, and that there were additional reasons in the appeal decision for dismissal which did not form part of the original decision. In particular, the "Cara incident" seems to have been reintroduced on appeal. It is true, it seems to us, that as between the two hearings there may have been some change. Furthermore the pattern of the two paragraphs of schedule 14 to the Act, paragraphs 23 and 25, require that where the governing body determine that a person should cease to work at the school they must "notify the Local Education in writing of their determination and the reasons for it". However, no time limit is given for notifying the Local Education Authority, after such determination. Paragraph 25 compels the governing body to permit the employee to make representations before they reach such a determination and an opportunity for appealing after they make such determination. Accordingly, it seems to us, there is nothing to prevent a notification to the Local Authority after the appeal has taken place. Furthermore it seems to us there is no reason why, in upholding a decision to dismiss, an appeal panel may not have slightly different reasons. The incorporation of them in the final dismissal does not seem to us to be a breach of statute. There is no reason why, it seems to us, the "reasons for their determination" in paragraph 23 should not include matters later raised on appeal as being part of their overall determination. Accordingly this ground is dismissed.[28]Ground 5 contends that the Employment Tribunal was perverse in its finding as to Mr Bryant, the Solicitor for the Appellant where they found at paragraph 26; "at the end of the appeal hearing Mr Bryant said that he had been happy with the way in which the appeal had been conducted." It is true that we can now see that there was much evidence to contradict that finding. It was hearsay, as it came from one of the Respondents' witnesses. Furthermore, although such an assertion is contained in the typed-up version of the minutes, the handwritten contemporaneous minutes, of which the typed-up version was supposed to be a copy, contained no such assertion. Furthermore there were a number of reasons, and we have seen a later statement from Mr Bryant which supports that, to suggest that he was far from happy with the way in which the appeal had been conducted. It is a shame, indeed, that his statement was not before the Employment Tribunal. However we must look at this matter through the eyes of the Employment Tribunal, seeing the evidence before them at the time. There was evidence which they were entitled to accept that Mr Bryant had made that statement and whilst it was open to challenge that is the position with much evidence. Employment Tribunals face the task all the time of having to assess the weight of evidence when there is other contradictory evidence and we have discerned no error of law in their approach in relation to this particular aspect of it.[29]Paragraph 6 complains that the Employment Tribunal erred in finding that the Appellant knew of the nature of the allegations against him in advance of the hearing. The Employment Tribunal found; "We find that the disciplinary hearing on 2 September 1996 was conducted properly and fairly. We find that the [Appellant] did know the nature of the allegations against him in advance of the hearing, he was allowed representation and he was allowed to present his case and his evidence." In paragraph 26 the Employment Tribunal found "At all relevant times, the [Appellant] knew the allegations that had been made against him." It has been rightly pointed out that the first disciplinary hearing was heralded by an allegation communicated to the Appellant that he was answering a charge of "serious misconduct", but during the hearing he was told it was "gross misconduct". Furthermore the allegation of "lying to the headteacher" was raised for the first time during the disciplinary hearing, towards the end, and appears to have formed an important part of the decision to dismiss and the finding of gross misconduct. The members of this Appeal Tribunal would emphasise the fundamental difference in disciplinary procedures and the way employees can address such procedures between having to face allegations of serious misconduct on the one hand and gross misconduct on the other. The approach, the preparation, the material which the employee will wish to present, the evidence and matters that the employee will wish to challenge are generally approached quite differently and for obvious reasons where the allegations are different. On the facts as found by the Tribunal, whilst it is true that the Appellant knew the substantive facts that were being alleged against him, apart from that of lying to the headteacher, in so far as the Employment Tribunal were there referring to the type of conduct, namely gross misconduct, they clearly erred in their analysis of their own findings of fact. Alternatively they appear to have omitted what in the judgment of this Tribunal was an important feature which demonstrated that the Appellant did not have due notice before the main hearing that he was being accused of gross misconduct, liable to lead to summary dismissal.[30]In paragraph 21 of the Decision the Employment Tribunal found that the appeal hearing was properly constituted and conducted fairly. Mr Moffett again submits that any argument that the disciplinary hearing was unfair in that due notice of the allegation of gross misconduct and the matter of lying were not given, must be regarded as being corrected at the appeal hearing. Again, however, that seems to us a finding that we are not able to make on the facts as found before us. Had the Tribunal been in the position of having to decide whether such appeal hearing corrected the initial hearing they may well have wanted to consider the extent to which the appeal hearing was glossing over the categorisation of the offences between gross and serious. This is a case in which, if the Appellant was right, the employer was having to exaggerate incidents of serious misconduct and categorised them, wrongly the Appellant would say, as gross misconduct in order to bring about a dismissal which the Respondent wished to bring about for reasons quite separate from those given at the disciplinary and appeal hearing. In those circumstances the Employment Tribunal may have wished to consider the inferences to be drawn from the fact that there was the late change to gross misconduct and, as the Appellant may put it, the weighting of the case against him by introducing the aspect of lying into the disciplinary hearing. In those circumstances we are unable, it seems to us, to "second-guess" the judgment the Employment Tribunal would have made as to whether or not such factors as they found in relation to the first hearing and the inferences as to the Respondents approach were genuinely corrected on appeal. We find that the Employment Tribunal did err in law in failing to consider the change from serious to gross misconduct and its implications when assessing the Appellant's case and in particular assessing the extent the Appellant knew the allegation of gross misconduct being made against him and the inferences, if any, to be drawn from his not being told.[31]In ground 7 the Appellant complains that in paragraph 25 the Employment Tribunal, in considering what they described as the "fairness of the dismissal" spoke of "the maltreatment of Cara". The Appellant complains that that was unsupported by the evidence in that no maltreatment of Cara was ever alleged. It is said that by using that term the Employment Tribunal has slipped into accepting that far more serious misconduct had taken place than was in fact being alleged and that this may have led to the finding of dismissal for gross misconduct as being supported on the evidence, which was in the event the finding of the Employment Tribunal in paragraph 23 when they said "We find that the Applicant's actions did constitute gross misconduct."[32]We accept that the word "maltreatment" was not used by the Respondents. However, it seems to us that the Employment Tribunal in using that word were simply referring back to the findings of fact in paragraph 10(11) of the Decision of the Employment Tribunal where the original allegations are correctly transcribed as including "inappropriate treatment of a pupil at the school". That the Employment Tribunal has used, by way of shorthand, the word "maltreatment" does not, it seems to us, conceal the true situation which must be that the Employment Tribunal were alive to the actual facts that were alleged and had been set out in some detail in section 10 of the Decision and, although the specific word "maltreatment" had not previously been used it is clear that that was simply a form of shorthand for the real factual analysis contained earlier in the Decision. We find no error of law in the use of that word.[33]Ground 8 contends that the Employment Tribunal erred in finding that the disciplinary hearing of 2 September 1996 was conducted properly and fairly. This does not, it seems to us, add to the arguments and conclusions we have already set out in relation to ground 1.[34]In ground 9 the Appellant complains of the finding at paragraph 24 of the Decision of the Tribunal; "We find that the [Appellant] was dismissed, … and the reason for the dismissal … was conduct, more particularly, it was gross misconduct as set out in the decisions of the panels." It is argued that the Employment Tribunal acted perversely in substituting the combined reasons of both the first and second hearings, as the approach of the disciplinary and appeal hearings respectively were different. It is pointed out that the letter from the local authority cited the reasons of the appeal hearing as the reasons for dismissal and that that should be read as a rejection of the reasons of the first disciplinary panel. In those circumstances it is suggested that the Employment Tribunal have substituted their own reason by looking at the two hearings rather than looking at the ostensible reason, the appeal, instead. The reasons between the two hearings were not entirely different, it was simply that the appeal hearing included an additional matter. It seems to us that by referring to the reasons as being set out in the "decisions of the panel" the Employment Tribunal were simply using a form of words. The essence of the reasons in truth were contained in the matters discussed exhaustively at two meetings, a disciplinary hearing and an appeal hearing. The technical way in which that was described to the Local Authority and the way in which the Local Authority drafted its dismissal letter were technically different but that seems to us immaterial.[35]Finally there is an additional ground 10 which asserts that the Employment Tribunal substituted its own views for those of the Respondents and failed to apply an objective standard when considering whether or not the dismissal was within the band of reasonable responses available to an employer. In paragraph 24 the Employment Tribunal direct themselves to the relevant section of the Employment Rights Act 1996 and conclude that the reason for the dismissal was gross misconduct as set out in the decisions of the panel. That, it seems to us, was a correct application of the principles of law establishing that the first task is for the employer to show the reason for dismissal. In paragraph 25 the Employment Tribunal directed itself in terms to section 98(4), pointing out that they have to consider the fairness of the dismissal. This, of course, is not a repetition of the words of the statute but it is a shorthand reference to them. It is clear that thereafter the Employment Tribunal go on to apply the principles set out in British Home Stores Ltd v Burchell [1978] IRLR 379 which gives some guidance in the approach of a Tribunal where this is misconduct including dishonesty. They found a reasonable belief on the part of the Respondents and that it was based on reasonable grounds. They then went on to find that the "investigations were sufficient". Subject to what we have said earlier about knowledge of the allegations in relation to gross misconduct, there is nothing subjective in that as it seems to us. In paragraph 28 the Employment Tribunal go on to consider the fairness of the dismissal and whilst we recognise that, on the face of it, it is possible to construe those words as representing simply the judgment of the Employment Tribunal, it is the judgment of the Employment Tribunal as to whether or not the dismissal was fair. It is not the judgment of the Tribunal as to whether they believed there should have been a dismissal. Implicit in the use of the word "fair" is the fact that the Employment Tribunal would have considered what was in the range of reasonable responses of a reasonable employer. Accordingly we find that the Employment Tribunal did not substitute its own views and that ground of appeal is dismissed.[36]Whilst we have sustained two of the grounds of appeal we would wish to emphasise the enormously difficult task that confronted the Employment Tribunal. It was already over a year after the dismissal that the first hearing before the Employment Tribunal took place. Then the whole process took something like two years and during that time one of the Members became ill, sadly died and the hearing continued with the Chairman and one Member. The evidence was spread over a very considerable period of time. The Employment Tribunal had the task not only of noting the evidence that was given but recalling and maintaining their own impression of the witnesses and the quality of their evidence over that time. They confronted an unenviable task and it is clear that the Tribunal engaged upon a careful and detailed analysis of the evidence and its exposition in their Decision. Nonetheless we find that they did err in those two matters, namely in their approach to the way in which the panels were constituted for dismissal and appeal and in relation to the approach to the gross misconduct element of the dismissal decision.[37]However we are indebted to the Employment Tribunal for the detailed findings of fact contained in the Decision of the Tribunal. That coupled with the enormous length of time that has now passed has led us to the view that it would be unnecessary and unrealistic to ask another Employment Tribunal to hear this matter all over again. Far too much time has, sadly, gone by through no one's fault for anyone to be confident that the evidence could be recreated in such a way as to ensure that both parties could have a fair trial. In allowing the appeal on those grounds we are, thanks to the findings of fact of the Employment Tribunal, able to substitute a finding which it appears to us is the correct one in this particular case. We find that the reason for dismissal did relate to the conduct of the Appellant. However we find that the way in which the panels were constituted was contrary to the statutory regulatory provisions in respect particularly to provisions which are designed to emphasise detachment, independence and objectivity. The inevitable result was that the Appellant was left feeling that he had not had a fair hearing and we have concluded that the procedure adopted by the Respondents in that respect and in respect of taking him, as it were, by surprise at the first hearing by raising allegations of gross misconduct and of lying to the headteacher meant that the Respondents were not reasonable in treating the conduct of the Appellant as the reason for dismissal. Accordingly we substitute a finding of unfair dismissal. However, bearing in mind the nature of the allegations made and the extent of the admissions of the Appellant as found in the Decision of the Employment Tribunal, we are driven to the conclusion that even had a fair procedure been adopted the result would have been no different. The allegations were of serious misconduct which a reasonable employer would have been entitled to treat as gross misconduct and these Respondents, acting reasonably, would on the balance of probability have dismissed and have done so in a way that would be categorised as being within the range of reasonable responses of a reasonable employer. Accordingly we find that the compensatory award in this case is nil. We do however find that the Appellant is entitled to a basic award. In view of the finding of the Employment Tribunal we consider this should be reduced by 50% for contribution. Working back from October 1996 it seems to us that there were five years of service in which he is entitled to 1½ weeks pay for each year, being over the age of 41 throughout that period. There is then a further period of 15 years during which he was 22 or over and is entitled to one week's pay for each year of employment. That reaches the maximum of 20 years which is less than the real service in this case. In October 1996 the maximum for a week's pay under statute was £210, so on our calculation one half of the basic award is £2,362.50 but we give the parties liberty to apply as to this.