MRS P CHAND v LONDON BOROUGH OF HOUNSLOW [2002] UKEAT 1276_01_1005

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1276_01_1005

Case No Appeal No. EAT/1276/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS P CHANDAPPELLANT

LONDON BOROUGH OF HOUNSLOWRESPONDENT

Before

Mr Justice Wall Mr J Hougham

Date 10 May 2002

[1]APPEARANCES For the Appellant MR GILL (Representative) THE HONOURABLE MR JUSTICE WALL This is the Preliminary Hearing of an appeal by Mrs Pramila Chand against the decision of the Employment Tribunal sitting at Watford over various extended days between January and July 2001 with the decision being promulgated on 12 September 2001.

[2]Mrs Chand had issued an IT1 in June claiming unfair dismissal and reinstatement. Prior to the proceedings she had been employed as a Teacher by the Respondent authority and had been working at the Norwood Green Nursery School since September 1990. This is how she put the matter in her form IT1:

"Following the presentation of a Parents petition regarding how the school was being run, the Applicant was questioned, and thereafter suspended from her job. The Applicant denies having contrived the Petition, and all of the allegations against her. At a Disciplinary hearing, the Applicant was dismissed from her job for Gross Misconduct. At the subsequent Appeal hearing on 24/5/00 this decision was upheld. The Applicant maintains that she was unfairly dismissed and the Disciplinary and Appeal hearings were not in the interests of fair justice as they included a statement from a vital witness who had asked for her evidence to be withdrawn. The Applicant also maintains that she was racially discriminated against."

The Respondent put in a detailed response to that application and the matter eventually came before the Tribunal.

[3]The Tribunal's reasons go into the matter in some detail. Mr Gill, who appeared for Mrs Chand this morning and for whom we are very grateful for his careful and thoughtful presentation to us, told us that he really found it difficult to criticise the Tribunal for the way they had dealt with the matter because they had done their best on the material that was available to them. His criticism was of the material and the fact that parts of it were inaccurate, parts of it, I think, improperly obtained and most of it generally unreliable.

[4]The story appears to have started (although this is not a matter that appears in the Extended Reasons) with a letter written by various parents of the school to the local Director of Education, sent, it is thought, in February 1999 making a number of complaints. The difficulty is that we do not know what that letter contains because it was never produced and its existence only came to light at the end of the Tribunal hearing. In any event, it clearly made a number of complaints and equally clearly, it would seem, that the Director of Education did nothing about it. Nonetheless there was continuing unhappiness at the school amongst a number of the parents. There had been an OFSTED report in April 1999 which had not been altogether satisfactory and had made a number of criticisms including, as the Tribunal found, adverse comments on the Appellant in these proceedings.

[5]On or about 27 April 1999 a number of parents came to the school bringing a letter expressing concerns in strong terms and a petition containing a number of signatures which made allegations of racism against the Head Teacher, and allegations of unfair treatment of the Applicant. There was no other Teacher named in the letter. The Head Teacher was given the letter and the petition. She reported the matter to the governors who immediately decided to hold an investigation into the allegations against the Head contained in the letter. The Applicant, because she was mentioned, was told not to communicate with any of the parents at the school.

[6]The governors convened an investigation, interviewed five parents, the parents who had been there when the petition was taken into the school. As a result of that investigation, according to the Tribunal, although some reported remarks were critical of the Head Teacher as made by the Appellant, and some indicated that the Appellant had been an active participator in the organisation of the protest, that particular inquiry appears to have come to the view that there was no complaint against the Head Teacher which could be pursued.

[7]The Applicant herself was suspended on 10 May 1999. There was a disciplinary hearing. The allegation essentially was that she had behaved in an unprofessional way and was involved in the production of the letter and petition; that she had made unfounded accusations against the Head Teacher and had been disloyal to the school.

[8]The first hearing (the disciplinary hearing) was, as the Tribunal found, unsatisfactory in a number of respects. The parents from whom statements had been taken did not attend and so there was no opportunity to ask them any questions. One of them, a Mrs Raju, had made it clear immediately before the hearing that she did not want here statement to be used. Quite contrary to that, not only was her statement used, but the governors were not told that she did not want it used. Another witness had come forward at a late stage who was willing to give evidence but the representative of the Appellant objected. The witness was therefore not relied upon or called. In the event, the governors hearing the matter formed the view that Mrs Chand had acted in the manner that had been alleged against her and they recommended her dismissal. It is also worth pointing out that pending that hearing Mrs Chand and her advisor had been forbidden to approach any of the other parents and therefore felt highly disadvantaged in not being in a position properly to put their case.

[9]As we indicated to Mr Gill in the course of the discussion this morning, if the matter had remained there and the dismissal had been based on that initial disciplinary hearing, we think that the Tribunal would have been unlikely to have found the dismissal fair and Mrs Chand would have succeeded below. But, there was an appeal. The appeal was heard by a different panel. None of the parents who had originally made statements would attend although they had by that point been seen by Mrs Chand's representative. Mrs Danjal, the witness who came forward late last time, was able to give a statement and her evidence was received on this occasion. Those parents who had given statements in the original investigation were seen again. Both Mrs Raju and Mrs Klear amended their statements prior to the appeal, making them less adverse to Mrs Chand on one point, namely, they said that her remarks had been "interpreted" by parents as meaning that the Head was racist. Another witness, on the other hand, amended her statement in such a way that it was more adverse to Mrs Chand on the matter of her involvement in the petition. Mrs Danjal's original evidence was clear against Mrs Chand on the issue alleging racism against the Head.

[10]That appeal was heard on 24 May 2000. Mrs Chand was represented by a representative at that hearing who concentrated on three matters. Namely, procedural irregularities, evidence failing to support the management case and the inappropriate severity of the sanction. The appeal proceeded and as a result the dismissal was upheld. The letter from the appeal panel stated five findings made against Mrs Chand which are set out in paragraph 2(ix) of the Tribunal's findings.

[11]The Tribunal considered the appropriate approach to a dismissal in these circumstances and discussed the findings which had been made. They were satisfied that the conduct in question came within the structure of the Act and was sufficient to warrant dismissal. They also found - and this was a standard they had to apply – that the Respondents genuinely believed that conduct to be true. The Tribunal was of the view that this was something that the Respondent could reasonably believe on the basis of the investigation they had conducted and in particular in relation to the appeal. In paragraph 4 of their reasons the Tribunal explain their findings as to why the governors could not be said to be unreasonable in reaching the conclusion that they had.

[12]They then discussed the procedure, including the initial disciplinary process. They made it clear that it was not their function to decide whether or not the allegations were strictly true. That is not the function of the Tribunal. As they said, it was their function to evaluate whether the governors could reasonably arrive at a view on the basis of what was in front of them. The Tribunal found that they could. We think it is worth reading paragraph 8 of the reasons because there they deal with the unfairness in the previous procedure: "There was some unfairness in the procedure that was applied in the Applicant's case up to the point of the Disciplinary Hearing. However, this was cured by the appeal. It was not fair, in our view, that the Applicant was prevented from making contact – even through her representative – with parents other than by writing a letter to be forwarded by the Respondents, while Respondents were able to have completely free contact with parents. For example, they had contact with Mrs Danjal, who came forward as a witness later than the original five witnesses. The Applicant's representative was able to and did canvas parents for evidence at the appeal stage. None of them would attend the Appeal Hearing or co-operate. Although before us the Applicant began to raise the suggestion that witnesses had been deterred from coming forward on her behalf by the Respondents, this allegation was almost immediately and totally clearly and without reserve, withdrawn on the Applicant's behalf by her Counsel. The Tribunal took care to ascertain that Counsel and Applicant were fully in communication with each other so far as her instructions went on this point. We were assured that there was no communication confusion and that withdrawal was quite unequivocal. We find as a fact therefore that the parents' reluctance to appear on the Applicant's behalf at the Appeal or to appear at the Disciplinary Hearing was due to reasons of their own. Whatever those reasons were, it did not lie in the Respondent's power to compel them to attend on either occasion. The Tribunal then dealt with the question of Mrs Raju's statement and were critical of the procedure in relation to that, describing it as prejudicial to the Applicant and also distorting the account of matters which were before the panel. Once again they said (I think now for a second time) that this had been cured by the appeal and the Applicant's representative had the opportunity to raise this fully and to air it fully before the appeal panel and did so.

[13]So, as we said earlier, the Tribunal's clear finding was that the appeal rectified the unfairness of the disciplinary hearing. It follows that having applied Section 98 appropriately to the facts the Employment Tribunal was satisfied that the procedure was not unfair. It is also worthwhile pointing out, we think, that Mrs Chand was represented by counsel in the Employment Tribunal. Therefore we can, I think, be satisfied that any procedural point or any point of unfairness would have been fully investigated by counsel on her behalf.

[14]The Tribunal, in our judgment, reached a conclusion which they were entitled to reach. It is not a perverse decision. Whether we, sitting as that Tribunal, would have reached that decision or not, we do no know. That is not the question we have to ask ourselves. The question we ask ourselves is whether the decision was one which the Employment Tribunal was entitled to reach. If the answer to that is – 'Yes it was, on the evidence available to it' – then there is, in our judgment, no point of law which can properly be argued or put forward to a Full Hearing. In those circumstances it seems to us inevitable that there as there is no point of law, there is no point in sending this case forward to a Full Haring and the appeal must therefore be dismissed at this stage.