MR A D NEARY v EGERTON-ROTHESAY LTD [2005] UKEAT 0061_05_1807

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0061_05_1807Case No Appeal No. UKEAT/0061/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A D NEARYAPPELLANTEGERTON-ROTHESAY LTDRESPONDENT
Before
His Honour Judge Birtles Dr B V FitzgeraldDate 18 July 2005
[1]SUMMARY Practice & Procedure -&- Unfair Dismissal No error of law in Employment Tribunal(1) finding that Appellant had been fairly dismissed for some other substantial reason and not because of disability and(2) the dismissal procedure had been fair. APPEARANCES For the Appellant MR CYRIL DENNEMONT (Solicitor) Messrs. Underwoods Solicitors 79 Marlowes Hemel Hempstead Hertfordshire HP1 1LV For the Respondent MR FRANKLIN EVANS (of Counsel) Instructed by: Messrs. Cooke Matheson Solicitors 8 Gray's Inn Square Gray's Inn London WC1R 5JQ HIS HONOUR JUDGE BIRTLES Introduction This is an appeal from the decision of an Employment Tribunal sitting in Watford on 7 to 10 and 16 November 2004. The Chairman was Ms I Manley and the Members were Mr P Lowndes and Mr J M Skelton. The unanimous decision of the Tribunal was that the Claimant was a disabled person within the definition contained within the Disability Discrimination Act 1995 at the time of dismissal and that the reason for his dismissal was for some other substantial reason of a kind such as to justify the dismissal of an employee holding his position and was not for a reason relating to his disability. The Tribunal went on to hold that the dismissal was a fair one. The Material Facts[2]The facts found by the Employment Tribunal are set out in paragraph 5 of its Decision: EAT Bundle pages 31-38. These facts are incorporated into this judgment. Suffice it to say that Mr Neary commenced employment at the Respondent school in April 2002. The school is an independent school which is managed by a charitable trust which has a Christian ethos and which specializes in teaching children with special educational needs. The Tribunal recalled that the Claimant told them that he did not think the school was particularly impressive, particularly within the Maths Department to which he had been appointed Head of Maths. Over the course of the next few months the Appellant gained further positions decided on by Mrs Boddam-Wetham, the Head Teacher. He was promoted to Senior Master and was also given the title of Head of House Development Director. It was clear that the Head Teacher held the Claimant in high esteem.[3]However, the Tribunal found that the Claimant was not held in the same high esteem by colleagues working with him: Judgment paragraph 5.5. Other members of staff began to be concerned as students were complaining to them about the Claimant's style and methods. There are a number of examples in the Judgment: paragraph 5.6. Matters came to a head at a Senior Management Team "Think Day" on 20 June 2003. The Tribunal found:
"It does seem that there were huge difficulties in that meeting and that the majority of them centred on the Claimant and his behaviour. The Claimant and the Head had been out for a period of time over the lunch break and it was during this time that the Claimant told the Head that he was HIV Positive."
This fact relates to the finding of the Tribunal that in November 2000 the Claimant was diagnosed as being HIV Positive. Details of the effect upon the Claimant of that diagnosis are set out by the Tribunal: Judgment paragraph 5.2.[4]A number of staff were very upset about the meeting of 20 June 2003 and reported this to two Directors of the school, a Mr East and a Mrs Adkins. They agreed that as they were due to attend the school on Monday 23 June for a Finance Meeting they would have to deal with the issue of the Claimant on that day. The Tribunal made the following findings of fact about Monday 23 June 2003:
"5.13. The Head was spoken to by Mr East and Mrs Atkins. The Tribunal are satisfied, and it is largely unchallenged, that the Head did not tell either of the Directors about the Claimant's HIV status, that information having been given to her in confidence. After some discussion with the Head, the Directors decided that it would be wise to suspend the Claimant pending investigation. He was therefore called to a meeting shortly after noon. No notes were taken of this meeting but it is accepted that the Claimant was told that there were some complaints about him. What is disputed is whether the Claimant was told at that point that he was dismissed or suspended…The Tribunal are satisfied that the Claimant was suspended at that point in time. "5.14. What followed on from that is a more detailed letter to the Claimant which set out the reason for his suspension. This was contained in a letter of 3 July 2003 and stated: 'On Monday 23 June 2003 you were suspended (on full pay) and asked to leave the school because serious allegations had been made against you by members of staff and parents. If those allegations are true then the school has grounds for summarily dismissing you for gross misconduct in which event you will not be entitled to notice. However it is the policy of the school in matters of this kind to suspend on full pay pending investigation of the allegations made.' The letter went on to give some details of the alleged conduct as follows: '1. There have been two direct (and other reported) allegations received from parents that you frighten children at the school, in some cases reducing them to tears, by intimidation involving physical proximity, shouting and anger. 2. There have been further allegations from members of the staff that you have intimidated and frightened children. 3. There has been an allegation that you treated children with special educational needs with contempt, referring to them as thick and stupid. 4. At least three members of staff have complained of being bullied and intimidated by you.' The Claimant was then informed he would be invited to a disciplinary meeting."
[5]An investigation was carried out on behalf of the school by a solicitor from the school's retained solicitors. The Tribunal recalled that as this happened very close to the end of the summer term most of the information could not be gathered until the beginning of the autumn term in September 2003. A solicitor from that firm therefore attended the school then and took a number of statements. In total, statements were taken from twelve members of staff and six parents. No statements were taken from students. The notes which one of the teachers (Mrs Fowler) had taken of the meeting on 20 June 2003 were also typed up and circulated at this time. All this information was forwarded to Mr East. The majority of it was forwarded on to the Claimant or his trade union representative to consider. The Claimant dealt with a number of these statements by faxing responses which are quite detailed. The Disciplinary Hearing was held on 15 October 2003: Judgment paragraph 5.16. It is important to note that the Tribunal found as a fact that the Hearing on 15 October 2003 was a 'Disciplinary Hearing': see the last line of the Judgment paragraph 5.16.[6]The Tribunal made the following findings of fact in relation to the Disciplinary Hearing. "5.1.7 The Claimant attended with Mr Long and Mr East conducted the hearing. The Tribunal has seen notes of that meeting where the issues were discussed. One of the issues raised by the Claimant's representative was that they had not received all the statements until very shortly before the hearing. It was agreed that the Claimant could send in written representations with respect to those four statements within seven days. It is not entirely clear how long that meeting took but the notes are relatively long. There was considerable discussion about the issues raised, including issues about the statements containing much of what was said to be "hearsay". The Claimant also raised the question of whether his HIV status was relevant. Mr Long from the NUT had informed the solicitors for the school some time in early September about the Claimant's HIV status. The meeting ended with the Claimant making some comments on the statements and explained his difficulties with understanding the position. The meeting closed with a reminder that the Claimant could send further comments to Mr East within seven days. The Claimant did then prepare a considerable response to the statements that he had seen. His response, with enclosures, runs to almost 200 pages. They contain detailed and comprehensive comments on points raised. For instance, with respect to statements made by Mrs King and Mrs Fowler, the Claimant's response numbered some 25 pages, which did include some appendices. 5.18 The Tribunal has read these responses. These were considered by Mr East before he took the decision to dismiss. The Tribunal have noted how vitriolic the Claimant was in his criticism of some of his colleagues." Paragraph 5.18 of the Judgment continues by giving some examples of the Claimant's comments about his colleagues.[7]Mr East considered the statements before him and what was said at the meeting and the Claimant's own comments, and wrote a dismissal letter on 31 October 2003. That letter said this:
"Having considered all the evidence consisting of some twenty statements from parents and 20 members of staff, oral evidence from yourself on 15 October and subsequent written evidence from you, we have reached the following conclusions:- 1 During the course of your employment there is evidence that you intimidated students in an inappropriate way and inconsistent with normal standards one would expect of a teacher. In particular, shouting at them with an inappropriate degree of physical proximity whilst doing so, in some cases causing the students distress. However, having had the benefit of your written evidence, we recognise that there is a dispute as to the detail of some of these allegations. Had there not been that dispute as to the detail we would believe this would have been grounds for summary dismissal. However, behaviour of that nature is always a question of degree in individual circumstances and giving the difficulty in obtaining contemporaneous independent evidence we have decided there was insufficient evidence to justify summary dismissal for gross misconduct. 2 You have failed to maintain effective working relationships with a significant proportion of the staff at the school which has led to an irretrievable breakdown in important relationship structures within the school (particularly within the Senior Management Team of which you are a member and your own department) and have caused distress to some members of staff. We conclude that this issue came to a head during the Senior Management Team meeting on 20 June 2003 and as soon as the Board of Egerton-Rothesay School Limited became aware of this on 23 June 2003 action was taken. Our assessment is that taken as a whole your own evidence confirms that relationships have irretrievably broken down in this way (particularly within the Senior Management Team) and that the meeting on 20 June was a culmination of this state of affairs. This constitutes some other substantial reason for dismissal which is fair in all the circumstances. Having come to the conclusion that relationships have irretrievably broken down and cannot now be reinstated, any attempt to do so would detrimentally affect the school and the well being of the students. For this reason we do not believe that further disciplinary procedures are appropriate. What has happened is incapable of remedy by warnings or opportunities to improve and to attempt that course of action would now be counter-productive. By this letter we confirm therefore that you are dismissed with immediate effect. You are entitled to your contractual notice which we shall pay you in lieu given the circumstances."
The letter went on to say this: "During the meeting of 15 October you alleged that the action taken by the school on 23 June was the result of your telling the Head on 20 June that you were HIV Positive. We confirm that was told to you during that meeting that Mr East on behalf of the school was not aware of your disclosure of your medical condition until it was disclosed to the school solicitors by the NUT considerably later.": Judgment 5.19.[8]The Claimant appealed against that decision and that appeal was heard by Mr Cook, a trustee of the school, on 17 November 2003. Again, the Claimant was represented by Mr Long from the NUT. That appeal was unsuccessful and the reasons given for it were set out in a letter to the Claimant of 26 November 2003: Judgment paragraph 5.20.[9]The Employment Tribunal then went on to summarise the relevant law relating to(a) disability discrimination: Judgment paragraph 6.1 and(b) unfair dismissal: Judgment paragraph 6.2. No criticism is made of that summary of the law by the Appellant and we note in particular that the Employment Tribunal said this about fair procedure: "Although strictly speaking this is not a misconduct case, the Tribunal still considers that some of the guidance contained within case law with respect to conduct is valid because that formed the basis for the original investigation and suspension. In particular, the question of procedural fairness raised in Burchell v British Home Stores [1978] IRLR 379 is one which the Tribunal will have in mind in determining whether dismissals are fair.": Judgment paragraph 6.2.[10]The Tribunal recalled the submissions made by the parties in paragraphs7.1 -7.2 and then reached its conclusions.[11]The Employment Tribunal first decided that the Claimant was a disabled person within the definition contained in the Disability Discrimination Act 1995 at the relevant time: Judgment paragraph 8.1. There is no appeal from that decision. The Tribunal went on to find that: "The Tribunal are satisfied that the Respondents dismissed the Claimant for a substantial reason. That substantial reason was the irretrievable breakdown in the working relationship between the Claimant and other members of staff, particularly his own maths team and the Senior Management team. That reason was such as to justify the dismissal of the Claimant in his role as Head of Maths and a Senior Master and part of the senior Management Team. The Tribunal do not accept that the Claimant's HIV status was a factor which had any bearing on Mr East's decision to dismiss. He had no knowledge of the Claimant's HIV status before the suspension nor for a considerable period of the investigation and all the statements and the evidence considered by him related directly to the issues of the Claimant's conduct and the breakdown in relationships. Furthermore, although this was not put to any of the witnesses, the Tribunal also accept that no other witnesses knew of the Claimant's HIV status and all had prepared statements without that knowledge": Judgment paragraph 8.2. We interpolate here that the Claimant's principal case before the Employment Tribunal was that he was dismissed because of his HIV status and not for some other substantial reason being the irretrievable breakdown in the working relationship between himself and the other members of staff. The Tribunal clearly rejected that.[12]The Tribunal then turned to whether or not the dismissal was fair or unfair in accordance with Section 98 (4) of the Employment Rights Act 1996 and said this: " This matter began as a question of gross misconduct. However, as we have said, the reason for dismissal was for some other substantial reason. The Tribunal felt that it was right to consider fairness both in accordance with the usual principles where conduct is a reason for dismissal and in more general terms when considering any decision to dismiss. The Tribunal are satisfied that the investigation which was carried out by the Respondents was a fair and reasonable one in the circumstances. The Tribunal does not believe that the decision to ask an external solicitor to carry out the investigation is one which can be criticised. That investigation seems relatively detailed and the number of people spoken to and the information given was certainly sufficient to allow a reasonable employer to consider that disciplinary proceedings should be taken. The Tribunal also have to consider the disciplinary procedures that were used. Again, the Tribunal are of the view that these are reasonable in the circumstances. There was a thorough procedure used, one which gave the Claimant an opportunity to comment on all the evidence which had been gathered in the investigation, one in which he was offered the opportunity to have representation, which he took and one where he was offered an appeal. Some questions have arisen about whether the Respondents should have used the disciplinary procedure which apparently they do have in written form in the Staff handbook. The Tribunal did not see that procedure but, given the circumstances of this case, where the Claimant was not dismissed for misconduct but for some other substantial reason, the Tribunal do not believe that it is necessarily unreasonable. The Tribunal has to be satisfied that the procedure which was used was one which was fair to his employee. The Tribunal bear in mind all the circumstances when considering whether the dismissal was a reasonable sanction in these circumstances. Given the size and administrative resources of the undertaking, the fact that it was a school which specialises in the education of children with special educational needs and the position of the Claimant, the Tribunal was satisfied that dismissal was fair. The weight of the evidence, which included evidence presented by the Claimant himself, was such as to lead a reasonable employer to believe an irretrievable breakdown had indeed occurred. All these matters were issues which were properly considered by the Respondents and clearly set out in their letter of dismissal. Again, for completeness, the Tribunal do not accept that the Claimant's HIV status was a factor in the ultimate decision to dismiss. For all these reasons the Claimant's claims must fail and are dismissed": Judgment paragraphs 8.3.-8.4. The Notice of Appeal[13]Against that decision of the Tribunal Mr Neary appeals to the Employment Appeal Tribunal. His notice of appeal dated 9 December 2004 was supported by an amended skeleton argument and oral submissions by Mr Cyril Dennemont of Messrs Underwoods, solicitors. The Respondent was represented before us by Mr Franklin Evans of Counsel instructed by Messrs. Cooke Matheson solicitors. We will take each of the grounds of appeal in turn. Ground One[14]The first ground of appeal was that the Employment Tribunal considered matters that were not relevant and failed to consider matters which were relevant in reaching its judgment. Mr Dennemont made a number of submissions in support of this ground of appeal. First, he said that the letter of 23 June 2003 and what followed was predetermined. However, in our judgment that is contradicted by the letter of 3 July 2003 (Tribunal Judgment paragraph 5.1.4) which we have set out above. Furthermore, it flatly contradicts the Tribunal's findings of fact that a substantial investigation took place (Judgment paragraph 5.1.6) and that Mr East held a disciplinary hearing on 15 October 2003 (Judgment paragraph 5.1.6), and considered all of the material including the enormous written response of the Appellant (Judgment paragraph 5.1.7 -5.1.8). Second, Mr Dennemont criticised the fact that the Tribunal did not take account of the fact that the disciplinary procedure contained in the Staff Handbook was not followed. The short answer to that is that it was open to either party to produce the disciplinary procedure contained in the Staff Handbook at the hearing before the Tribunal. Neither side chose to do so. We noted that it was Mr Dennemont who represented the Appellant before the Employment Tribunal. Third, Mr Dennemont complains that the Tribunal failed to take into account the extensive written responses made by the Appellant to the Respondent's witness statements which were provided to him at or shortly before the disciplinary hearing on 15 October 2003. The evidence is clear that the Appellant faxed his comments to Mr East on 22 October 2003. The Employment Tribunal found as a fact that Mr East considered those responses and took them into account before he took the decision to dismiss: Judgment paragraph 5.18. Similarly, those documents were before the Employment Tribunal in the Bundle. There is no evidence that the Tribunal ignored that evidence in reaching its decision. Fourth, Mr Dennemont complains that the Employment Tribunal ignored the fact that the notes of the Disciplinary Hearing of 15 October 2003 show that the Appellant's representative, Mr Long, was making objections to the procedure followed. Those notes were before the Tribunal and we simply do not understand how it can be said they ignored Mr Long's objections. Fifth, Mr Dennemont complains that the Employment Tribunal did not take account of the additional material before the Employment Tribunal: EAT Bundle pages 637-695. Since the material was before the Employment Tribunal we do not understand how it can be said they ignored it. No specifics are given. When there is a substantial bundle of material before a Tribunal it is a matter for the parties to draw the attention of the Tribunal to particular material they wish it to read. Sixth, Mr Dennemont complains that the dismissal letter of 31 October 2003 (EAT Bundle pages 15-16) refers to evidence that Mr East had before him and that he concluded that there was therefore not sufficient evidence to dismiss the Appellant for misconduct. In those circumstances the Respondent should not have considered dismissal for some other substantial reason. In our judgment there is no substance in this point. Once an employer commences an investigation it is entitled to dismiss (all other things being equal) if in the course of the investigation it comes across sufficient material to justify dismissal on a ground other than that for which the suspension took place providing the case is fully placed before the employee and the employee has a proper opportunity to respond to that case. The Tribunal specifically found that that was the case here: Judgment paragraph 8.3. Furthermore, it is clear that the letter of 3 July 2003, set out above, specifically referred as detail of alleged conduct the fact that "At least three members of staff have complained of being bullied and intimidated by you". The investigation revealed not only further incidents of bullying by the Appellant but an irretrievable breakdown in the relationship between him and other members of staff. For these reasons we dismiss the appeal on this ground. Ground Two The second ground of appeal is that the Employment Tribunal did not properly follow the guidance in King v Great Britain China Centre [1992] ICR 516 . Leaving aside the separate issue of the elaboration of the principles of King in later authorities and most recently in Igen and Others v Wong (Court of Appeal) [2005] EWCA Civ, it is quite clear that the Tribunal did apply the principles of King: Decision paragraph 8.2. The Tribunal heard the evidence of the Appellant and the Respondent's witnesses. It was well aware that the Claimant's case was that he had been dismissed because of his HIV status: Originating Application paragraph 12f: EAT supplementary bundle page 5 and it specifically rejected that contention: Judgment paragraph 8.2. It was entitled to do so. We dismiss this ground too. Ground Three[15]The third ground of appeal is that the Employment Tribunal failed to apply the principles of Turner v Vestric Ltd [1980] ICR 528. That decision was cited to the Employment Tribunal by Mr Dennemont and copies provided to it: Judgment paragraph 6.2. The Employment Tribunal were entitled to find that the employer took account of the seriousness of the breakdown of the relationships between the Appellant and other members of staff and to decide that it was irretrievable. In those circumstances the Respondents were entitled to dismiss the Appellant and the Employment Tribunal were entitled to find that that was the principal reason for dismissal and that as a fair procedure had been followed the dismissal was therefore fair. We dismiss this ground too. Other Grounds of Appeal[16]Although there were other grounds of appeal in the notice of appeal they were not in fact argued in front of us by Mr Dennemont and are therefore dismissed. Final Grounds[17]In his reply to Mr Evans' submissions and arising from questions from the Employment Tribunal to Mr Evans, Mr Dennemont sought to argue a further ground of appeal which was that the hearing on 15 October 2003 was not in fact a disciplinary hearing as found by the Employment Tribunal but an investigatory hearing. This point arose because Mr Evans had referred us to the correspondence between the Appellant's representative, Mr Long, and the solicitors acting for the school. That correspondence made it clear that those two gentlemen had not agreed on the nature of the hearing on 15 October 2003. However, the Employment Tribunal decided that that was a disciplinary hearing: Judgment paragraph 5.16. There was no evidence before the Tribunal that either the Appellant or Mr Long had requested a further meeting. The meeting of 15 October 2003 had ended on the basis that the Appellant would have the opportunity to comment on late witness statements supplied by the Respondents and indeed he did so by faxing 160 - 200 pages to Mr East on 22 October 2003. The Tribunal specifically found as a fact that Mr East considered those witness statements before reaching his decision to dismiss the Appellant: Judgment paragraph 5.19. Mr Dennemont sought to argue that this ground of appeal was contained within paragraphs 3.1 and 4.13 - 4.15 of his Notice of Appeal. We cannot agree. In the alternative Mr Dennemont sought permission to amend his Notice of Appeal to argue this point. However, he accepted that he had not sought to argue this point before the Employment Tribunal. Applying the usual rule in Kumchyk v Derby City Council [1978] ICR 1116 we are not prepared to entertain it and we refuse permission to amend the Notice of Appeal on this point. It was not pleaded in the Originating Application or raised before the Employment Tribunal. Neither was it raised in Mr Dennemont's primary submissions to us this morning. Conclusion[18]For these reasons this appeal is dismissed.