MRS E V GORDON v THE GOVERNORS OF ST MARY'S CHURCH OF ENGLAND PRIMARY SCHOOL [2002] UKEAT 1441_01_0305

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1441_01_0305Case No Appeal No. EAT/1441/01 & EAT/292/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS E V GORDONAPPELLANTTHE GOVERNORS OF ST MARY'S CHURCH OF ENGLAND PRIMARY SCHOOLRESPONDENT
Before
Mr Recorder Langstaff Mrs J M Matthias Mr H SinghDate 3 May 2002
[1]APPEARANCES For the Appellant MR BURGHER Appearing under the Employment Law Appeal Advice Scheme MR RECORDER LANGSTAFF: We have preliminary hearings in 2 appeals by Mrs Gordon against two decisions made by the Employment Tribunal at London (South). In extended reasons which were promulgated in October 2001, the Employment Tribunal dismissed the Appellants complaints that she had been unfairly dismissed. For reasons which were subsequently corrected by this Tribunal, that hearing did not go on to consider whether or not there was a contractual claim as well. Subsequently it did so and in extended reasons delivered on 5 March 2002, the Tribunal in what we shall call the second decision rejected the complaints that there had been a breach of contract.[2]In order to appreciate the basis for the appeals and the decision, it is necessary to set out the facts, though briefly. Mrs Gordon was employed as a Deputy Head Teacher. On 10 February 1999 it is said that she shouted at her Head Teacher, Mr Litchmore. He asked, indeed required her to come to a meeting to be held on 25 February in order to discuss the issues that that gave rise to and in addition what he saw as her failure or reluctance to discuss a particular child's work with him. On 25 February, she rejected arrangements which had been made to cover her class by another teacher and refused to attend the meeting initially. When she did so she made apparent her distaste at having to do so.[3]That gave rise to the question whether or not she had wilfully disobeyed a lawful and reasonable instruction by her Head Teacher and whether that constituted such misconduct as to require some disciplinary penalty. A disciplinary hearing was conducted on 18 May 1999, which was followed by a letter two days later indicating that the disciplinary panel felt that in the circumstances she should be dismissed. Her appeal was heard on 19 July 1999, adjourned to 15 September 1999 for its conclusion, which upheld the decision.[4]In the first decision the Tribunal said this at paragraph 8 (xliii):
"At the conclusion of the appeal hearing the disciplinary appeal panel met to consider and had a considerable discussion as to the appropriateness of dismissal as the sanction. Eventually the panel reached a majority decision that dismissal was the appropriate sanction, and in coming to that decision the disciplinary panel gave considerable weight to the Applicant's senior position within the school. Accordingly, they did not uphold the appeal and a letter of 16 th September 1999 from Mr Jeffrey to the Applicant informed her accordingly."
[5]Before us, Mr Burgher, who appears under the provisions of the ELAAS scheme and for whose focused and considered submissions we are grateful, substituted for the notices of appeal which had been issued the following grounds of appeal in respect of the unfair dismissal complaint. His first ground was that the Employment Tribunal in dismissing Mrs Gordon's appeal against the decisions reached by the disciplinary hearing and the appeal panel below had failed to consider the provisions of the ACAS code. The Tribunal reached its decision last year. Whatever may have been the statutory provisions previously, whatever may be the desirability of paying close regard to the principles, which inform codes such as the ACAS code, the statutory requirement is, and is only that which is set out in the Employment Rights Act section 98. Section 98(4) deals with the way in which a Tribunal should approach the issues of fairness and although it is familiar territory to any employment lawyer, we shall set it out again in full: "Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.[6]We are unable to say that there was any arguable ground for allowing an appeal against this Employment Tribunal because it had not specifically recognised that it should have considered the ACAS code. The second ground was that the Employment Tribunal erred in concluding that the procedure adopted by the employer was exemplary. There were four sub- reasons to this, all procedural. They are firstly that Mrs Gordon had not been able to cross-examine or test some of the statements upon which the employer had relied in those procedures, secondly that she was barred from contacting staff whilst in suspension, pending the disciplinary hearing and appeal, thirdly, that she was suspended prior to the disciplinary hearing and finally that she was unable to benefit from her own contractually agreed disciplinary procedure. That last is a reference to the fact that a disciplinary procedure which was applied by the employer was that which was in general use in the Lewisham area and consisted of Lewisham Borough Council's revised Disciplinary and Grievance code, yet the code to which, on a proper reading of her contract, the Tribunal found that Mrs Gordon was entitled to was a code of disciplinary procedure for teachers in Church of England aided schools, promulgated by the National Society and General Synod Board of Education.[7]With the sole exception of that last point, all of the other matters are matters of procedural complaint. The difficulty that any Appeal Tribunal would have in dealing with such an argument, whatever the force might be, is twofold. First and perhaps foremost, a Tribunal is only in a position to deal with the arguments which are placed before it. It may be that particular provisions of statute require a Tribunal, sometimes despite what has or has not been submitted to it, to make particular enquiries. Here the provisions of section 98 subsection 4 demonstrate that is not the case. Accordingly, a Tribunal cannot be blamed and its decision cannot be rendered appealable by an argument which could have been but was not addressed to the Tribunal. The Tribunal itself set out in summary form a précis of the written submissions which Mr McFadden had addressed to it. Those submissions did not include the arguments which have been addressed to us today by Mr Burgher.[8]It follows that there was no specific reason why the Employment Tribunal should have dealt with an argument which was not drawn to their attention at the time and which was not self evident from the other facts which it found. Accordingly, we feel unable to say that there is here any arguable point of law upon which any division of the Employment Appeal Tribunal will be entitled to overturn the decision of the Employment Tribunal.[9]Thirdly, Mr Burgher urged that the Employment Tribunal erred in concluding that this dismissal was fair and reasonable. Essentially his argument here was that there was a history behind the events of 25 February which were the immediate precursor of the disciplinary hearing. In particular, the loss of self control which was found to have occurred on that day, had underlying it concerns that Mrs Gordon had that she was being pushed out of a role which she had enjoyed and occupied successfully for several years. This occurred not least because without inviting them, she was given documents relating to premature early retirement but also because she had received adverse feedback from the results of an Ofsted inspection of the school and because, it is plain, her views may not entirely have coincided with those of her head master as to the way in which the school was run. Mr Burgher makes a powerful case that the general impression of the Appellant as to how the Respondent school was treating her should have been taken into account in evaluating the seriousness or otherwise of her behaviour which led to the disciplinary hearing and appeal.[10]There are, again, two difficulties which we think are insuperable in the way of this argument succeeding. The first is that the Tribunal said at paragraph 18 of the first decision as follows:
"The Tribunal considered whether dismissal fell within the band of reasonable responses of a reasonable employer. The Tribunal finds that dismissal does fall within the band of reasonable responses of a reasonable employer, especially in the light of the fact that the Applicant had not changed her behaviour following the letters of 12 th and 13 th November 1998, and also bearing in mind the seniority of the Applicant."
[11]They do not say that they had exclusive regard to the particular features which they identify. Earlier in the decision are set out a considerable number of separate matters which have enabled Mr Burgher to found his submissions as to the way in which the Appellant felt that she was being treated. There is a natural inference that having set out such factual material, a Tribunal would have that in mind in reaching the conclusion, tersely expressed as it is, in saying in summary that they considered that the dismissal did fall within the band of reasonable responses. We remind ourselves that Tribunal decisions necessarily cannot deal with every single point that might arise. They do not have to dot every i nor cross every t. It is sufficient if they indicate to the parties in general terms, why it is that one has succeeded and the other lost. We think that that is what this Tribunal decision does.[12]But, secondly, again it does not appear from any material before us that the Tribunal were addressed as to the background as a matter of importance in determining what the decision should be. Instead the argument addressed to it by Mr McFadden was (as summarised at paragraphs 10 and 11 of the decision) directed towards showing that there had been an improper motive for seeking to get rid of the Appellant. It is not surprising in that context that the Tribunal expressed itself as economically as it did and we cannot see that a plea that it should have dealt more expansively with matters which it might have considered would have any reasonable prospect of succeeding before a full appeal hearing. Accordingly, though not without some sympathy for Mrs Gordon, we feel bound to reject that head of appeal too.[13]We turn then to the second decision. The second decision is one which is purely a matter of contract. Two matters were argued before the Tribunal. Those were the heads generally indicated in paragraph 12 of that decision in the italic words there set out. First it was said that it was a breach of contract to use the disciplinary procedure of Lewisham rather than the Diocesan disciplinary procedure. Secondly, it is said that dismissal without notice was a breach of contract. So far as the first matter is concerned, the Tribunal rejected the argument before it upon the basis that there could not be a breach of contract unless it caused loss. They record that as a concession made by Mr Thomas, then appearing before the Appellant. From that we infer that the Tribunal invited the concession or put Mr Thomas under pressure to agree to it. We think that that is an error of law. A breach of contract does not have to give rise to loss in order for it to be characterised as a breach of contract. In this respect it is different from a claim in tort in which there has to be some loss. However, in the course of his submissions, Mr Burgher rightly and realistically agreed with us that if there were a theoretical breach of contract only which one might identify, giving rise no remedy in terms of loss, there would be no point in this matter being heard at an inter-partes appeal, merely to establish a mistake for which there would be no remedy.[14]If the proper disciplinary procedure had been used, the question arises what the result would have been. The victim of a breach of contract is entitled to be put into the position in which he would have been had the contract been fully and properly performed. Here the Tribunal came to the conclusion in paragraph 35 that in all the circumstances of the case, Mrs Gordon's conduct amounted to gross-misconduct and justified dismissal without notice. That was a finding of fact by the Tribunal itself having heard the evidence before it. It is a finding of mixed fact and law, the factual content being the perception by the Tribunal of the conduct of Mrs Gordon, the law being whether or not, within the disciplinary procedures and within the general law of contract, it could be properly classified as gross misconduct: or, put in more conventional contractual terms, whether it constituted such repudiatory conduct as to entitle the employer to accept that conduct as terminating the further performance of the employer's obligations towards Mrs Gordon.[15]The issue for us therefore, is whether or not the Tribunal was entitled to come to that particular view. As to this, Mr Burgher has pointed with considerable force to an apparent inconsistency between the reasoning giving rise to this conclusion and the reasoning of the Tribunal which gave rise to the conclusion it expressed in respect of unfair dismissal. That is that in paragraph 17 of the first decision, the Tribunal said that it was satisfied that "the root cause of the Applicant's dismissal," was her loss of self control and unacceptable behaviour on 25 February 1999. In the second decision it said at paragraph 34 that it was satisfied that the reason for dismissal was; "the Applicant's unprofessional conduct against the background of warnings about her behaviour and demeanour and that the event which culminated in the Applicant's dismissal was her loss of control and unacceptable behaviour on 25 February 1999."[16]The first looks at the behaviour of 25 February 1999 as a cause. The second looks at it as a consequence. Mr Burgher builds on this an argument that to take into account the earlier warnings as to behaviour and demeanour as enabling a Tribunal to find misconduct as gross or repudiatory, is to deny the contract in other respects. The disciplinary procedures under the contract provide for a hierarchy of warning. The earlier warnings so called would fit only within the informal oral or warning stage if they fitted at all within that hierarchy. If they were to be relied upon as adding to the seriousness of conduct, subsequently, they should have been contractually dealt with as disciplinary offences at the time with the full panoply of disciplinary hearing. We have considered Mr Burgher's argument which is not without force to see whether in the context of this case it is reasonably open to be argued before a full Tribunal.[17]We have concluded, sadly for Mrs Gordon, that we cannot reach that conclusion. We do so because the Tribunal, in the second case, was looking at her conduct as a whole. It was in effect dealing with a question whether or not a deliberate and public rejection of the authority of the head teacher was or was not gross misconduct. We think, notwithstanding the points that Mr Burgher has made that on the vital question, no Appeal Tribunal could hold that the Tribunal were wrong in classifying Mrs Gordon's conduct as gross misconduct.[18]Accordingly, we feel bound to dismiss this appeal too. We should add however, for the sake of completeness that once again that this was an argument which owes much to Mr Burgher's familiarity with legal principle and argument and which does not appear to have been addressed to the Tribunal below. It may be a pity that Mrs Gordon did not have his services at an earlier stage. We have of course to deal with matters as an appeal Tribunal and generally we cannot therefore give weight to arguments here that were not raised below.[19]For those several reasons, we have no alternative but to say there is no arguable basis on which this appeal might go forward and it must be dismissed in both cases.