MR D STYLES v LONDON BOROUGH OF SOUTHWARK [2006] UKEAT 0112_06_1204

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0112_06_1204Case No Appeal No. UKEAT/0112/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D STYLESAPPELLANTLONDON BOROUGH OF SOUTHWARKRESPONDENT
Before
Mr Justice EliasDate 12 April 2006
[1]APPEARANCES For the Appellant MR N TOMS (Of Counsel) Instructed by: Messrs Morley Mitchell Solicitors Beech House Horsforth Office Park Manor Road Leeds LS18 4DX For the Respondent MR S FLETCHER (Of Counsel) Instructed by: London Borough of Southwark Legal Services South House 30-32 Peckham Road London SE8 8PX SUMMARY Dismissal for misconduct. Tribunal concluded that whilst there were certain procedural failings, the dismissal was fair. Were they entitled to reach that conclusion or were the failings, considered cumulatively, of such a nature that a reasonable Tribunal ought to have found that the dismissal was unfair? Held that the Employment Tribunal was fully entitled to reach the decision that it did. THE HONOURABLE MR JUSTICE ELIAS This is an appeal against the decision of the Tribunal sitting at London South, in which they unanimously found that the Appellant had not been unfairly dismissed. He had alleged that he had been automatically unfairly dismissed for a reason relating to his Trade Union activities, contrary to Section 152(1)(b) of the Trade Union Labour Relations Consolidation Act 1992. Alternatively, he submitted that the dismissal was in any event unfair being in breach of Sections 94 and 98 of the Employment Rights Act 1996.[2]The employer's contention was that the dismissal was fair and was by reason of misconduct. The background[3]The Appellant was employed from May 1985. He was what is now termed a school premises officer (formerly I suppose a caretaker), his duties including security, cleaning and maintenance of the school building and grounds. He was suspended from his job which was at the Robert Browning Primary School in May 1999 following an allegation that he had assaulted the Head Teacher. He was initially dismissed but he successfully appealed and was reinstated in November 2001. He became the Unison Shop Steward at the Robert Browning School, shortly after his reinstatement. He was elected Branch Health & Safety Officer and Education Convenor. Indeed, he became a Governor of the school. He returned to work on the 5 November 2001. He then had an interview with Miss Mbakwe who had been appointed head teacher in May 2000. He had not, however, worked under her because he had been suspended during the whole time of her tenure as Head Teacher. The Employment Tribunal notes that both sides formed a very unfavourable impression of each other and that "this negative start to their relationship set the scene for the events that followed." The school was subject to the Government's special measures regime by 2003. It was managed by Atkins Education. The head teacher made a series of serious allegations against the Appellant and also placed on record her dissatisfaction with the way the Respondent local authority had dealt with earlier complaints she had made about him. She said she had been harassed and intimidated and that the Appellant was treated as "some kind of sacred cow." She said that she had been insulted in front of children, parents, staff and visitors; that she did not feel safe in his presence; that he did not fulfil his duties; and that she had been required to employ outside contractors to carry out a thorough cleaning of the school. She said that she had been bombarded by memos and that the Appellant had even removed locks on the school gates because he did not approve of the kind that were being used. She also alleged that the Appellant targeted vulnerable members of staff and overwhelmed them with what she described as "a brooding culture of intimidation."[4]The Appellant was suspended pending an investigation into these complaints. A letter dated 25 May from Mr Turner, the Director of Education Services, identified three broad categories of allegations; threatening and intimidating the head teacher and others including possible sexual or racial elements; failing to do the job to a satisfactory standard; and failing to follow reasonable instructions specifically instructions over the locks, and a failure to take money to the bank. It was emphasised that these allegations were based on the duties as an employee and not as a Trade union official.[5]Mr Howard was asked, on the 9 June, to carry out a management investigation. He conducted interviews with the Appellant, the head teacher and various others, between July and December 2003. He produced a report on the 12 January 2004. He thought there were three areas of concern requiring management action: unacceptable behaviour towards the head and other staff and contractors; failure to comply with reasonable instructions; and failing to maintain the children's playground area to the required clean and safe environment. He concluded that these matters, certainly taken cumulatively, might constitute gross misconduct. He did not find any sex or race elements.[6]He identified in relation to each of these heads specific issues that had caused him concern. It is not necessary to set them all out. Suffice it to say that there were 18 in all. We do, however, need to make this observation about the particulars of these complaints. We think that if one looks at them fairly, they are not simply identifying single unrelated incidents occurring historically on particular dates. It is plain that they are identifying a pattern of unacceptable behaviour and conduct, a pattern of failing to comply with management instructions and a continuing failure to maintain the children's playground. For example, in January 2003 Miss Mbakwe wrote to the Claimant expressing concern about his behaviour and attitude to staff in general and complained that the conduct was unacceptable. It is true there are particular examples also given in Mr Howard's catalogue of specific incidents. Again, in relation to failure to comply with management instructions, there is a reference to a number of occasions where the Claimant refused or failed to move tables from the hall. That was plainly a recurring problem. We do not accept in those circumstances that it can be said that the Appellant would not have had the opportunity properly to deal with a complaint of that nature.[7]Again in relation to failing to maintain the children's playground. There are certain specific dates mentioned when the fact that the playground was not clean and was not safe were highlighted by particular individuals. But it is obvious that the complaint is of a continuing failure to do that ending with the appointment of an external contractor and, indeed, Mr Howard appended photographs showing the condition of the school grounds before and after the cleaning.[8]The nature of these allegations is relevant when we come to look at the question of delay.[9]The Appellant alleges that the investigation was unfair and biased and that Mr Howard deliberately failed to interview witnesses who might have supported his case. Mr Howard had given the Appellant a copy of Miss Mbakwe's complaint letter of 2 May but he blanked certain paragraphs out on the grounds that he did not think they were relevant. The Tribunal understood why he had done this, but they considered on balance that it was an error of judgment for him to have done so. It led to suspicions from the Appellant.[10]The Tribunal also accepted that the failure to interview certain witnesses whom the Appellant had identified (there were 4 in all) and had said would support his account of certain particular incidents raised some concerns about the objectivity of Mr Howard. However, they went on to note that Mr Howard had not found any element of race or sex discrimination and this suggested that his investigation was objective. They also noted that he had found that a number of people were too frightened to give evidence or sign statements. Mr Howard believed that they had been intimidated by the Appellant.[11]Mr Howard's report was considered by the Assistant Director of Management Services, Mr Daniel, who invited the Appellant to a formal disciplinary hearing on 2 March to answer these alleged breaches of duty. The Appellant was told that these were serious allegations which cumulatively could be considered as gross misconduct. Copies of the documents, and other information on which management relied, were included, including Mr Howard's report and the enclosures. There was a hearing on the 2 March, chaired by Mr Murphy, Assistant Chief Executive of Strategic Services. Mr Howard appeared as a witness, as did Miss Mbakwe. A note was taken of the hearing and the parties agreed that this was accurate.[12]The Tribunal observed that one of the complaints was that Mr Murphy had chaired the committee. The Appellant submitted that he was far too senior for that office and had only been asked to do it because he had an express agenda to dismiss the Appellant because he was seen as an awkward trade unionist. The Tribunal, in terms, rejected this. It commented that Mr Murphy was not in fact as senior as other chief officers, that he was new to the authority and therefore had no preconceptions about the Appellant, and that it was recognised that a relatively senior officer should hear the case because it was a sensitive issue involving not just an employee but also a School Governor and Trade Union official. Mr Murphy is a prominent Labour Party activist and the Tribunal entirely accepted his evidence that he was given no remit to treat a trade union official unfairly and that it would be contrary to his principles to do so.[13]At the disciplinary hearing, the panel heard a catalogue of incidents highly critical of the appellant from Ms Mbakwe. The Tribunal summarised it as follows:
"29. Ms Mbakwe gave detailed evidence about her difficulties with the Claimant. In summary she said that there was an ongoing problem with him doing the banking and that he refused to do anything that she asked him to do. She said that during his suspension there was a premises: officer on contract who did a good job, but when the Claimant returned, everything changed and the playground was unbelievably dirty. She said the Claimant would not do anything, and would not allow his assistant to do anything either. She asked him to clean the place but he refused. She had to bring in contractors to do the cleaning, and her teachers complained all the time.. She said that she spent all her time replying to the Claimant's memos, and that he refused to take instructions from her. She said that he had removed the lock on the school gates, and that he had refused to switch on the heating. She said that the state of the school became unbearable, despite many memos to the Claimant because he refused to do the work, and that the playground was unhygienic for children to play in. She said that on one occasion the Claimant followed her around the school while she was with a contractor, screaming and shouting at her staff, and that if he was asked to do anything he would scream or shout. She said that two of her staff broke down in tears and refused to speak to Mr Howard or give evidence to him when he was conducting his enquiry. She referred to the incident on the staircase which was documented by Ms O'Connor and said that on one occasion as she was going down the stairs, the Claimant deliberately blocked her way and kept her there for 30 seconds. He said this was one of a number of occasions where he did things when nobody else was looking. She said that he accused her of being an "idiot" and that this was not the only occasion when he started calling her names, especially within other people's earshot, including parents and children. She concluded that she had been subjected to unacceptable, threatening and intimidating behaviour and that many people were afraid of the Claimant, who had made her life a misery."
[14]They also noted that in cross examination Mr Snow, representing the appellant, barely cross examined Ms Mbakwe, apparently lest it might give the impression to the panel that she had anything of significance to say. Ms Mbakwe did, however, add in cross examination that many people were afraid of the Appellant, who made her life a misery. She denied that it was just she who had complained; there were a whole multitude of complaints, not only from her but from other members of staff and contractors. Indeed, she said there were so many incidents that there was not enough time to mention them all.[15]Mr Howard was cross examined by Mr Snow.[16]After the management witnesses had been heard, the Appellant through his representative, Mr Snow, submitted that there was no case to answer. That was, we have to say, a somewhat bizarre submission in the light of the evidence, but in any event he called no witnesses and the Appellant did not give evidence.[17]The Tribunal found the charges proved and invited mitigation. Mr Snow addressed the panel who then imposed a sanction of summary dismissal. The reasons for their decision were set out in a letter dated 5 March. They were summarised as follows:
"1 That the evidence before it sustained a charge of unacceptable behaviour and conduct towards the head teacher, other staff and contractors. "
Specifically, the panel found that this unacceptable behaviour was characterised by a lack of respect for authority and a derogatory attitude towards, in particular, the head teacher of the school at which you were employed. 2 The panel found that the evidence also sustained a charge that you had failed to comply with reasonable management instructions in carrying out your work responsibilities. On the 'basis of the" evidence, the panel believed that your behaviour in relation to reasonable instructions had led to the point where, even for the most simple, natural and common sense duties of your post, it had become necessary for the head teacher to issue written instructions. In any working environment, the panel considered that this situation would be absurd. In the case, however, of a community school subject to special measures, the panel felt that your misconduct had a seriously detrimental effect on the performance of the school and the school's use of its human and financial resources. The panel was in no doubt that you were aware of the impact of your behaviour and the possible consequences. It felt that it could not ignore the context in which your misconduct took place and found that this added significantly to the seriousness of the misconduct. 3 The third charge was that you had failed to undertake your duties to a satisfactory standard. Specifically, this charge related to an alleged failure to maintain the children's 'playground area to the required standards of cleanliness and safety. Again, the panel found that this charge was upheld by the evidence. The panel felt that your long term and wilful failure to carry out your duties had its own particular significance in that it placed the children and employees of the school at a significant and unnecessary risk. In terms of the seriousness of this matter, the panel also felt that, given your expertise in health and safety .in this area, you must have been all the more aware of the level of risk and the duty of care owed to the school."[18]The letter went on to note that although the Appellant had wanted to challenge the charges, in fact he had not in any significant way chosen to do this. As to the sanction, the panel noted that the Appellant had neither shown contrition nor any willingness to change his behaviour.[19]Mr Murphy gave evidence to the Employment Tribunal and elucidated further on these reasons. He said that the panel had decided to accept Miss Mbakwe's evidence. That was not the only evidence but it was the principal evidence and they had regard to the fact that there was no significant challenge to that evidence from the Appellant.[20]One of the Appellant's complaints was that Mr Snow could not properly cross examine Mr Howard because of interruptions by Mr Murphy. The Tribunal found in terms that these were reasonable interruptions and not improper.[21]The Appellant appealed. The principal grounds were that the disciplinary panel had not set out the specific basis for its findings and that there were no reasonable grounds for its conclusions.[22]The appeal was heard on 17 May, chaired by Mr Jenkins, the Director of School Services. Two other officers of the Respondent were also on the appeal panel. Mr Murphy now presented the management case. Again, notes were taken which are accepted as being an accurate record. The appeal was not, however, a full rehearing but nonetheless the panel decided to allow the appellant to put in certain additional evidence which he wished to adduce, albeit that he had had the opportunity to produce it at the disciplinary hearing and had chosen not to do so. The Tribunal concluded that the appeal was "something of a hybrid between a review and a rehearing" (paragraph 38). It also noted that the appeal concluded after 5 hours and then it was adjourned until 29 July and then further adjourned until the 3 August.[23]Again the Appellant complained about the appropriateness of Mr Jenkins chairing the meeting. This was based on an alleged potential conflict of interest which would cause him to lean in management's favour. The Tribunal rejected this contention.[24]The appeal panel concluded that the disciplinary panel had acted reasonably in accepting the head teacher's evidence and the other evidence presented to it. It found that the allegations against the Appellant were all well founded. Specifically, it also indicated that it was giving little or no weight to the fresh evidence which the Appellant had sought to provide by way of written statements. As we have indicated, he did not however seek to bring these witnesses before the disciplinary Tribunal. As regards these witness statements, the appeal panel said this:
"The panel noted the evidence produced in the form of statements from school staff at section 2, appendix 13. This was not provided to the disciplinary panel but provided in support of case at appeal. The appeal panel noted the discrepancies regarding the dates that the statements were indicated to have been written and the phraseology, which, suggested that the statements were written by the same author or based on collusion. The appeal panel also noted that these statements referred to events some time also noted that these statements referred to events some time ago, which Mr Snow criticised in respect of the management evidence presented to the disciplinary panel. Further, the nature of the letters was about personal contributions and advocacy for individuals rather than Mr Styles' contribution to the school."
[25]There was then a further hearing before the panel on 30 November when mitigation was considered. The panel took the view that there was no acknowledgement of any responsibility on behalf of the Appellant, nor any attempt to suggest how the employment relationship could sensibly be continued and therefore they upheld the sanction of dismissal. This was confirmed by the Chief Executive and the employment was formally terminated on the 10 December. The hearing before the Tribunal[26]The Tribunal set out the relevant law. There is no complaint about how they did that and they dealt with the Appellant's complaints about the procedure.[27]First, they considered the submissions of Mr Toms, who appeared for the Appellant below and appeared before us. He had identified 11 distinct grounds on which the Tribunal might infer that there was dismissal on grounds of trade union activities. It is not necessary to set out all those grounds. They included the alleged hostility of the head teacher towards trade unionism; the allegedly flawed disciplinary investigation; the trivial nature of some of the allegations and the choice of Chairman of the panel and the appeal panel. The Tribunal concluded that there was "compelling evidence" that the reason was conduct and not trade union activities. They found that the Respondent had satisfied them of this fact. This was the fundamental issue the Tribunal had to determine in relation to reasons. We are wholly satisfied that they had ample evidence to reach that conclusion.[28]Then the Tribunal considered the question of reasonableness. They were referred to the well known case of British Home Stores v Birchell [1978] IRLR 379 and also the decision of this Tribunal in AvB [2003] IRLR 405 , which indicates that where serious allegations of gross misconduct were alleged impacting on someone's job, and perhaps his or her career in a particular area, then anything less than an even-handed approach to an investigation would not be reasonable.[29]The Tribunal had made certain criticisms of the investigation, but they concluded that overall it was reasonable. It was, they expressly say at paragraph 54, "within the range of reasonable responses of a reasonable employer." They had, as we have said, identified the fact that it was an error for Mr Howard to have blanked out certain parts of the letter and also they were unhappy with the fact that he did not interview the witnesses who had been identified by Mr Styles as people from whom he might obtain relevant evidence.[30]The Tribunal then considered a submission that the delay of itself had rendered the dismissal unfair, relying again on AvB and also RSPCA v Cruden .[1986] IRLR 83. The Tribunal admitted that here it was troubled by the delay. It considered that it was poor management for the Respondent not to have acted earlier. That in fact was a complaint made by the head teacher, who felt that the delays had prejudiced her and displayed a lack of support. The Tribunal agreed with this. But it noted at paragraph 55 that most of the allegations were current or recent and although there were delays they did not in the Tribunal's view render the decision to dismiss unfair.[31]They concluded that both panels had genuinely believed that the Appellant had committed misconduct and that it was reasonable for the employer to find that the reason was misconduct, given in particular the fact that the panel only heard evidence from the head teacher, which they considered to be compelling. There was a reasonable investigation. The Appellant had had every opportunity to make his case at the two appeal hearings and in all the circumstances the dismissal was fair.[32]The Tribunal also found in terms that the Appeal Panel was fully entitled to give no or virtually no weight to the fresh evidence. Other panels, it noted, may have given it greater weight, but that was a matter for the particular panel and its decision was within the range of reasonable responses.[33]Finally, it held that the sanction of dismissal was plainly one which the Respondent could properly and reasonably impose given the grave nature of the allegations. The Grounds of Appeal[34]The Grounds of Appeal in part involve a rerun of the principal matters which were advanced and rejected by the Employment Tribunal. Many of the grounds are really complaints that the finding of the Tribunal on certain matters was perverse. In that context we have been reminded by Mr Fletcher, counsel for the Respondent, of the difficulty of successfully arguing a case of perversity relying on such cases as Yeboah v Crofton [2002] IRLR 634 and Stewart v Cleveland Guest Engineering Ltd [1994] IRLR 440 . In particular, it is extremely difficult to advance a case of perversity where it is not suggested that there was no evidence to support the decision of the Tribunal.[35]The grounds are in fact extremely detailed. Before us, however, Mr Toms sensibly and helpfully refined his submissions. He said that there are essentially 4 related grounds which looked at overall ought to have led the Tribunal to reach the conclusion that this dismissal was unfair, particularly when taking into account good industrial relations practice. He referred us in that context to paragraph 7 of the decision of this Tribunal in Payne v Spook Erection Ltd [1984] IRLR 219 where Nolan J, giving the decision of the Tribunal, emphasized the importance of taking into account good industrial relations practice when considering whether the employer has acted reasonably. These grounds he in particular emphasizes; we put it that way because he has not formally dropped the other grounds. We deal principally with the four grounds.[36]First, he said that many of the allegations relate to events that took place well over a year before the disciplinary hearing. In those circumstances there was not a fair opportunity for the employee to deal with them. In this context he said that the Employment Tribunal was simply wrong to say that many of the complaints were relatively recent. Second, he focused on the failure by Mr Howard to interview the witnesses, a matter to which we have already made reference. Third, and this is a related point, he submits that the appeal panel dealt unfairly with the fresh evidence. In particular they were rejecting that evidence as not being contemporaneous, but that was in circumstances where Mr Howard had failed to take statements from these witnesses and where the Appellant perforce had to take statements late in the day.[37]Finally, he submitted that some of the issues which were identified as potential acts of misconduct had been the subject of grievances raised by Mr Styles. He said, and this seems clear from the decision, that the Tribunal had not dealt with that in the body of the decision at all. He submitted that it was an important matter and that no reasonable employer would have dealt with the disciplinary misconduct in the way that this employer did when it had failed to follow up the grievances which had been lodged.[38]We will look at these matters but will do so in the context of the other grounds of appeal which have also been lodged. Certain grounds relate to the investigation. As we have said, it is alleged that the dismissal was unfair because of the censoring of the letter, the failure to follow up witnesses, and that the investigation was biased with a determination by Mr Howard to support the head teacher.[39]The first and third matters we can deal with very briefly. Plainly, the censoring of the letter was very minor matter and had no impact on the decision to dismiss at all. The Tribunal found it an error of judgment. It was no more than that and it would be absurd to suggest that it rendered the dismissal unfair or that it should have any significance in that context.[40]As to the allegation that the investigation was determined to support the head teacher, this is essentially a claim of bias against Mr Howard. That was not what the Tribunal found. On the contrary they thought he approached the matter objectively and they referred to the fact that he did not find any race or sex discrimination.[41]There is, we accept, more force in the submission that Mr Howard had failed to interview certain witnesses. There will be circumstances where particularly when considered with other matters, that can render an otherwise fair dismissal unfair. AvB , relied upon by Mr Toms, is an example of that. That was a case in fact in which I gave the judgment for the Employment Appeal Tribunal. But that we think is a very different case from this one. That was case where there were certain allegations that the appellant, who was a residential social worker, had had an inappropriate relationship with a child at the residential care home, a 14 year old girl. It was alleged that he had smoked cannabis with her and that he had had sex with her. There were very serious allegations and they were clearly not merely leading to potential dismissal but also the loss of employment in that chosen field, and they were allegations of criminal misconduct.[42]There were also a number of disturbing features of that case; it turned on the evidence of this young, vulnerable and distressed girl who had plainly told untruths on other occasions; the appellant was not in a position to challenge the case against him because he had been denied access to all the materials actually relied upon by the employer; he did not know which witnesses might support him; and there were overall in that case delays of almost 3 years between the alleged incidents and the disciplinary hearing. In that case he was suspended and was not able to interview witnesses himself.[43]In this case it is true that the Appellant was also suspended pending the disciplinary hearing but he could approach witnesses with management consent. Moreover, it is plain that he did in fact approach these witnesses and he provided their statements at the appeal stage. Unlike the position in AvB , the Appellant here knew the witnesses whom he wished to call. He was, perhaps, prejudiced to some extent by their not being interviewed by Mr Howard. The Tribunal recognized that that was unsatisfactory but they also noted that he had a right to put his full case before the disciplinary panel and the appeal panel. He chose not to adduce any evidence before the disciplinary panel as we have said.[44]We do not accept that the case of AvB compels the conclusion that this investigation was unreasonable, particularly when seen in the light of the other subsequent safeguards afforded to this Appellant.[45]Then it submitted that the Tribunal failed to give reasons for concluding that there had been a reasonable investigation. That it seems to us is really repeating the earlier complaint. We think that the Tribunal has made quite clear why there had been a reasonable investigation in these circumstances. The question here for Mr Howard was whether there was a matter which ought to be the subject of a disciplinary charge. Was there, in other words, a case to answer? In our view there plainly was, as the Tribunal found, and as they were fully entitled to find in the light of the material that had been gathered by Mr Howard. That would not have been affected by certain contradictory evidence which he might have obtained from these other witnesses and which was in fact finally put before the appeal panel.[46]Next it is said that certain conclusions of the Tribunal were perverse, or at least there were no adequate reasons given in relation to them. As we have said, that is a very difficult ground to sustain. In particular, the delays it is said made it impossible for Mr Styles to collect contemporaneous evidence, made it difficult for him to defend himself and to recall particular matters. It was said that the Tribunal had failed to deal with formal grievances that he had lodged a year before the charges were instigated. And there was also an allegation that the panel could not properly conclude that the allegations were established given that some of them were uncorroborated.[47]We reject all these matters. We think that the Tribunal was fully entitled to reach the view that the delays, although unsatisfactory, did not render the process unfair. The Tribunal analysed the nature and the effect of the delay. Of course delays without more, even without prejudice, can render an otherwise fair dismissal unfair as the case of RSPCA v Cruden shows. But the tribunal concluded that this was not such a case, and they were fully entitled to do so. That was a matter for them to consider and they gave appropriate reasons for their conclusions. Mr Toms, in fact submitted that the Tribunal did not recognize potential prejudice. We do not accept that. They focused on the fact that many of the complaints were relatively recent and by that we have no doubt that they recognized that it can be more difficult for an employee to deal with complaints emanating from incidents some time ago.[48]He also says that the Tribunal were not entitled to reach the conclusion that many of the complaints were recent. He says that is simply not borne out if one looks at the catalogue of particular incidents which were identified in the report of Mr Howard. We have already effectively dealt with that. As we have said, there may be cases where there really are individual and unconnected incidents and the employee can say that he or she has a genuine difficulty in being able to recall particular matters and the details. We do not accept that that is the case here where in truth, if one looks at the nature of the complaints, they are of continuing misconduct. The particular incidents were simply examples of that. That is also borne out by the evidence given before the panel by the head teacher. She plainly was not concerned with the isolated complaint but with the overall unwillingness of the Appellant to deal with staff decently or with her properly or to do his job properly. That was the allegation in substance which the panel had to deal with.[49]As to the question of grievances, also raised in this context, we are in difficulty dealing with this particular Ground of Appeal. We have no evidence as to how the question of grievances was raised before the Tribunal. We do not know the extent to which grievances may have overlapped with this disciplinary hearing. We do not know why they were not taken further or indeed whether they were not taken further, although Mr Toms submits that they were not.[50]In short, there is no possible basis on which we could give any weight to this particular challenge. We would only add that we see nothing inconsistent in principle with an employer instigating disciplinary action even after grievances have been raised. We would also observe that it is a somewhat curious complaint that the grievances were not taken further when Mr Styles was a trade union official who was in a position to pursue those grievances forcefully if he felt they were matters he genuinely and firmly wanted to be resolved.[51]Be that as it may, we are satisfied that this separate Ground of Appeal cannot properly be considered by us because we have no material from which to determine whether it has merit or not. We suspect, we have to say, that it does not.[52]Finally, Mr Toms submitted that the appeal body had acted improperly in treating the fresh evidence in the way in which they did. We reject the premise of this submission. It is that the Tribunal were refusing to give weight to this evidence because it was not contemporaneous. We do not accept that. We think that what the Tribunal was saying (it is in the passage that we have set out above) was that Mr Snow, Mr Styles' representative, was contending that some of the management evidence should not be admitted because it was not contemporaneous and they were making the observation that the same would apply to this evidence. But they clearly were prepared in principle to take it into consideration. In any event, the evidence would still not have been contemporaneous evidence even if it had been taken as a result of the investigations carried out by Mr Howard. It might have been slightly closer to the date but it would not have been contemporaneous. In this case the appeal panel concluded, as they indicated, that because of the way in which this evidence was structured, they believed that it had been the subject of collusion. They were not willing to give any significant weight to it. They were entirely entitled to do that. That is one of the functions of a disciplinary body of that kind.[53]We also note, as Mr Fletcher observed, and as we think the Tribunal also is indicating in the passage to which we have made reference, that this evidence did not really take matters much further. It only to a very limited extent challenged the factual matters being advanced by the head teacher; much of it was of the nature of a general assertion that it was the head teacher who was at fault and not the Appellant.[54]It seems to us therefore that this appeal has to fail. The Tribunal was entirely justified in concluding that the panel was entitled to take the view, having heard evidence essentially only from the head teacher and not from the Appellant, that her evidence should be believed. The Tribunal considered all the relevant evidence. They reached findings they were entitled to reach. They bore in mind the arguments advanced by the Appellant, they considered them, they rejected the principal complaints. They did not simply say that everything the employers had done was correct. They were critical and quite sternly critical of certain matters including the question of delay but in that context they weighed up the nature of the delay and the potential prejudice. They concluded overall that the employers had acted reasonably. We think there was manifestly evidence on which they could properly reach their conclusion and we see no error of law in their determination.

Cited in 1 later judgment