ST THOMAS GARNETT SCHOOL ASSOCIATION LTD v MS J MCCARTHY [2006] UKEAT 0259_06_1110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0259_06_1110Case No Appeal No. UKEAT/0259/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ST THOMAS GARNETT SCHOOL ASSOCIATION LTDAPPELLANTMS J MCCARTHYRESPONDENT
Before
His Honour Judge McMullenDate 11 October 2006
[1]APPEARANCES For the Appellant MR R WHITE (of Counsel) Instructed by: First Assist Group Ltd Employment Services Dept Marshall Court Marshall Road Sutton Surrey SM1 4DU For the Respondent MS H GOWER (of Counsel) Instructed by: Messrs Graham Clayton Solicitors 1 Lower Avenue Heavitree Exeter EX1 2PR SUMMARY Unfair Dismissal – Reasonableness of dismissal The Employment Tribunal did not err when, having found the Respondent passed the BHS test, it found that the dismissal of the Claimant was not within the band of responses of a reasonable employer. The Employment Tribunal did not impermissibly consider the views of the Headmaster and its Judgment was not perverse. HIS HONOUR JUDGE McMULLEN QC This case is about unfair dismissal of a teacher following complaints about her conduct in the classroom. The Judgment represents the views of all three members. Both advocates have illustrated their submissions by realistic examples of modern education practice and so we too have drawn from our own experience variously as school governors and teachers. We will refer to the parties as Claimant and Respondent. Introduction[2]It is an appeal by the Respondent in those proceedings against the Judgment of an Employment Tribunal sitting at Southampton, Chairman Mr R Pirani, registered with reasons on 1 March 2006. The Claimant was represented by her husband and today by Ms Helen Gower of Counsel. The Respondent was represented there by a consultant and today by Mr Robin White of Counsel. The issues[3]The essential issues as defined by the Employment Tribunal, and as now relevant on appeal, were as follow:
"1. The Claimant alleges that she was unfairly dismissed by the Respondent. The issues were agreed with the parties at the start of the case. They are: 1.1 What was the reason for dismissal? 1.2 Did the Respondent believe that the Claimant committed the alleged gross misconduct? 1.3 Did the Respondent have reasonable grounds for that belief/was there a reasonable investigation? 1.4 Was dismissal within the range of reasonable responses open to a reasonable employer?"
[4]The Employment Tribunal found in favour of the Claimant but reduced any award of compensation by one third because of her conduct. The Respondent appeals against liability but not remedy. The Claimant has since been awarded over £20,000 in compensation. Directions sending this appeal to a full hearing were given at a preliminary hearing by Elias J (President) and members. The legislation[5]Section 98 of the Employment Rights Act 1996 says that conduct is a potentially fair reason for dismissal. The Employment Tribunal found that reason. The relevant provision in this case is section 98(4) which deals with fairness:
"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."
The Tribunal directed itself by reference to that section in its common ground that its directions were correct. The facts[6]The Tribunal made the following findings:
"3.1 The Claimant started working as a teacher in 1971 and, apart from a seven year break, has worked every year since in the teaching profession. For the majority of this time she taught early years, i.e. up to 5 years old. The Respondent is an independent Roman Catholic fee-paying school. The Headmaster of that school is Paul Gillings, who was appointed in September 1992. The school is an independent primary/nursery school for boys and girls aged from 3 months to 11 years and is a charitable trust. In the main school there are approximately 8 teaching staff and 3 support staff. There are an average of 16 to 17 pupils in each class and a total of 134 pupils in the school."
[7]There was a number of complaints made against the Claimant from parents of children within her care during the early part of 2005. In response, the Claimant was placed on "garden" leave. The police and social services were informed but no action was taken. On 10 February 2005 there was a meeting between the Claimant and the Head and Ms Vicky Hughes. Some children were interviewed. The Claimant was charged with a number of disciplinary offences and suspended. At a disciplinary hearing before the trustees on 27 May 2005 the Claimant was dismissed summarily. This was confirmed by letter. The Claimant appealed an on 30 June 2005; her dismissal was confirmed.[8]Having addressed itself as to what was required in this case by reference to the Judgment of the EAT in British Home Stores Ltd v Burchell [1978] IRLR 379 , the Tribunal, came to this conclusion:
"13. … The Tribunal find that there was a reasonable investigation and that the disciplinary panel did have a reasonable ground for believing that the Claimant committed the misconduct. 14. The Tribunal then went on to consider whether dismissal was within the range of reasonable responses open to a reasonable employer in these circumstances. The Tribunal reminded itself that it was not for the Tribunal to say whether or not it agreed with the decision to dismiss. The Tribunal took account of the following facts and matters when considering this issue."
[9]Thus the Tribunal separated the early stages, that is the BHS approach, from the final stage, which was a matter of judgment for it. In concluding as it did that the action of the Respondent did not come within the range of reasonable responses open to it, the Tribunal considered the following matters:
"15. First, the Claimant always accepted that she did on occasion shout at pupils and also that she did on occasion send pupils out of her class. As has been pointed out, the Headmaster was aware of both of these issues but at no time had he chastised the Claimant or warned her about these matters. This was her first offence and she had a clean disciplinary record. 16. The Claimant had not taught the over fives age group since 1977 and was therefore inexperienced in dealing with older children. Mr. Gillings told the Tribunal that its handbook had been changed since the Claimant was dismissed to make it an explicit instruction not to send pupils outside the class. Mr Gillings accepted that he also had pupils standing outside his office on occasion. 17. The Tribunal also took into account the fact that the Claimant was not appraised during her period of employment with the Respondent and had minimal training in relation to the Respondent's handbook. 18. When the Tribunal asked Mr Gillings whether or not he would be satisfied that the Claimant would not commit further misconduct had she been given a final written warning on this occasion rather than being dismissed, his first response to the Tribunal was that he would be so satisfied."
[10]It thus upheld the Claimant's case but because it had been called upon to make decisions in relation to contributory fault it went on to make findings in respect of the Claimant's conduct. The charges which were put against her and which were upheld were these:
"Allegation 3 evidence submitted indicated that you do get angry, shout, and use inappropriate language, such as "shut up"
. Therefore, this allegation was substantiated. Allegation 4 there were enough similarities in the statements taken from the pupils to indicate that you do make physical contact with pupils. Therefore, this allegation was substantiated."[11]It must be appreciated that allegation 6 changed in form from the way in which it was charged because this is how it was put to her:
"6. Such actions, if proven, may amount to physical assault and bullying of pupils, wilful disregard of instructions relating to employment, namely the Child Abuse Policy and School Disciplinary Policy, and conduct likely to seriously damage School business or the good will of the School business in the opinion of the Trustees."
[12]The Tribunal found that all of the matters contained in the dismissal letter were correctly found by the school trustees to have taken place. That then is an unusual finding in an unfair dismissal case, but it does arise where an allegation of contributory conduct is made by a Respondent, and the Tribunal properly made findings to that effect. The Tribunal also considered the Claimant's own attitude to these matters, for it recorded this:
"24. The Tribunal asked the Claimant if the allegations as set out all had occurred, whether she considered they would amount to "serious misconduct"
. The Claimant accepted that she knew it was wrong to grab or pull the pupils and that such would amount to serious misconduct. In these circumstances, the Tribunal finds that the Claimant did contribute to her dismissal and was to some extent at fault. The Tribunal decided that the correct amount to reduce the Claimant's compensatory and basic awards is one-third or 33%." It also noted that the Claimant had not told the truth The Respondent's case[13]The Respondent submitted that the Employment Tribunal had erred in law in that what was done by the Respondent was within the band of reasonable responses and the Tribunal should not have been influenced by what Mr White described as mitigation offered by the Headmaster. The Headmaster was not after all the employer of the Claimant, nor had he taken part in the decision-making to discipline and dismiss her. It was contended that the side of the line on which this case fell was one in which, although the case was difficult, on these findings the Tribunal ought to have come to the conclusion that the Respondent's action was within the reasonable band. These are serious charges which the Tribunal had found proved. The Claimant's case[14]On behalf of the Claimant it is contended that the factors we have set out from paragraph 15 to 18 of the Judgment are relevant to its assessment of reasonableness and the band of reasonable responses. These are not an afterthought but are integral to the original decision-making process. The Tribunal cannot be criticised for setting out its findings of fact followed by its conclusions in the way it does, for this is prescribed by the 2004 Rules and the Tribunal is not required to rehearse in the concluding part of its Judgment what it has found in its earlier part.[15]Ms Gower submitted that context was all important in this case and illustrated, by graphic examples, that the seriousness of the offences charged was to be looked at by the Employment Tribunal, which is in the best position to consider whether the action of the Respondent falls within the relevant band.[16]Secondly she contended the Tribunal had not been guilty of doing something which it said it was not going to do, that is substituting its own view. The relationship between its Judgment and the evidence of Mr Gillings was important and focused upon the correct effect of section 98(4). The legal principles[17]The legal principles to be applied in this case appear to us to be as follows. Some offences are so serious that, in the absence of the most exceptional mitigation, dismissal will always be within the band of reasonable responses and it would be an error law to find otherwise ( D J Murphy v Trust Houses Forte Hotels Ltd [1977] IRLR 186, especially paragraph 12). Offences of violence towards fellow employees fall within that category ( C A Parsons & Co Ltd v McLoughlin [1978] IRLR 65). When a Tribunal is charged with perversity, the Appellant must make out an overwhelming case on the facts that it has ignored relevant material or refused to pay attention to evidence which was all one way ( Yeboah v Crofton [2002] IRLR 634 CA). The EAT should not substitute its view for that of the Employment Tribunal unless there is an error of law (see Hereford & Worcester v Neale [1986] IRLR 168 at 43 to 45). Conclusions[18]With those principles in mind, we prefer the submissions of the Claimant and will allow the appeal. First we consider the criticisms made of the Judgment's structure. We accept Ms Gower's point that these days Employment Tribunals should present their reasons in the form prescribed by the rules. There is nothing wrong, as here, with an Employment Tribunal setting out its findings, its issues of law and then its conclusions. It is not necessary for it to cut and paste those findings into its conclusions. A Tribunal cannot be criticised for failing to pay attention to a matter which it does not mention in its conclusions but which it has mentioned in its findings of fact,.[19]Secondly we would require very cogent evidence to hold that a Tribunal, which said it was not to substitute its view, here twice, did exactly that. The evidence in this case and the submissions do not reach that high level.[20]Thirdly we accept the submission that the Tribunal was correct to consider all the evidence it had before it, including the evidence of the Headmaster, albeit that the Headmaster is operating on the basis, let us say, of an alternative view of a reasonable employer. In this case the injection into its Judgment of the findings about the Headmaster are important points of substance in the finding against the Respondent. These matters are not aptly described as mitigation in the way Mr White does, but as central matters for its consideration. It is very relevant to consider, for example, in a case of a teacher of 30 years' experience, that she had no disciplinary record, that she had very long service, that she had recently been involved with different age groups of children within her care, that there was no appraisal of her work and minimal training, that the handbook had been adjusted, and that the Headmaster himself was, we hold on this material, prepared to give the Claimant a final written warning, in other words would not have dismissed her.[21]These are all factors which it was for the Tribunal to consider. It made no error of law in its approach. It addressed the correct legal questions. It went quite a long way down the road with the trustees of this school in two respects. First it upheld the BHS conditions, that is reasonable belief, genuinely held after a reasonable investigation, and it slashed the compensation, charging the Claimant with blameworthy conduct, to the extend of one third. But that did not ineluctably lead to a finding in favour of the Respondent, for the Tribunal considered those other matters and decided that it was outside the band of reasonable responses for the trustees to have dismissed her. The Tribunal is the forum where these issues are to be debated. Other Tribunals might have found a different answer, but that is not a legal question which is invoked upon appeal before us.[22]We would very much like to thank Mr White and Ms Gower for the concise way in which they have made these arguments well within the time allocated to it. The appeal is dismissed.