THE GOVERNING BODY OF HASTINGSBURY SCHOOL v MR M L CLARKE [2007] UKEAT 0373_07_1712

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0373_07_1712Case No Appeal No. UKEAT/0373/07/DA UKEAT/0374/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE GOVERNING BODY OF HASTINGSBURY SCHOOLAPPELLANTMR M L CLARKERESPONDENT
Before
Mr Justice EliasDate 17 December 2007
[1]APPEARANCES For the Appellant MR JAMES WYNNE (of Counsel) Instructed by: Messrs Curwens Solicitors Crossfield House Gladbeck Way ENFIELD Middlesex EN2 7HT For the Respondent Written submissions SUMMARY Unfair dismissal – Reasonableness of dismissal / Compensation The employee, a school teacher, was subjected to a disciplinary procedure for alleged acts of misconduct of an inappropriate sexual nature with respect to his pupils. There was evidence that he might be suffering from some illness which could have explained his conduct. The employers resolved to refer the matter to Occupational Health to investigate the medical position but in fact dismissed him before that was done. The Tribunal found that the dismissal was unfair but that it could not speculate as to what would have happened had the referral been made. The EAT dismissed an appeal against the finding on liability but concluded that the Tribunal ought to have considered what would have happened had the referral been made. In the light of the psychiatric evidence before the Tribunal the only possible conclusion was that the dismissal would have occurred in any event, even had the referral been made. The EAT held that in the exceptional circumstances of this case, and bearing in mind the overriding objective, it would itself determine the compensation. It did so, on the assumption that it would have taken some 10 weeks to comply with the referral procedure before the dismissal would inevitably have occurred. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) This is an appeal against two judgments, one on liability and one on remedy. The Employment Tribunal unanimously found that the Claimant had been unfairly dismissed. They then awarded him in the region of £26,500 compensation. The employers, whom we shall call the Respondents, as they were below, appeal against both those conclusions.[2]The Respondents were represented by Mr Wynne of Counsel, who appeared below. The Claimant is in custody awaiting, we are told, a serious criminal trial. He has not appeared before us but has written a letter to the Court. The background[3]The Claimant was a school teacher at Hastingsbury School and Community College at Kempston in Bedfordshire. He was employed as a classroom teacher from 1 September 2002. When first employed he was newly qualified. His first year was probationary and the school was not satisfied with the level of his professionalism and therefore extended the probationary period. He acquired full teaching status in December 2003. There were, however, still reservations which the school had about his behaviour. This included, in particular, sharing information with the students about his personal life; inappropriate behaviour, including larking around, with the students; and employing and remunerating them.[4]On 14 March 2005 two female students complained about the Claimant's conduct. They were in Year 9, with an age bracket 13-14. They said he made them feel uncomfortable at the way in which he looked at them, and that he was in the habit of winking at girls in class. He was alleged to have shown a video relating to Jack the Ripper. The complaint was made by the mother of one of the students who also said that the Claimant offered his phone number to her daughter. That was not confirmed by the daughter although she did indicate that he had told her that she could call him if she had any difficulty with another particular student.[5]On 22 March 2005 another staff member, Mr Roberts, learned of complaints by three other female students, also in Year 9. They include that the Claimant shouted at them; described one as a 'freak' and called the other 'weird' and grabbed her bag and emptied it to see what was in it.[6]The Claimant denied all these complaints when interviewed by the Headmaster. He stated that "weird stuff" was going on. He suddenly and without warning, left the room to visit the lavatory. He thought his behaviour was perfectly normal, but the Headmaster was concerned about it and suggested that he should take the remainder of term off and seek medical help.[7]He did this and returned after the Easter holiday (although he had to be contacted because he had forgotten that term had started). Initially, he seemed to be calmer. On 12 April, however, other members of staff communicated their concerns about his behaviour. Two learning support assistants described his behaviour as bizarre. They described him marching, lifting his knees up, not putting his feet on the floor at once, balancing on one leg, holding his arms out as though he were holding something, shouting at students to shut up, throwing a pen at a student, continually talking nonsense, putting his finger in his nose, and making faces.[8]When asked about his behaviour, he told the Headmaster that he was concerned about his posture and had done nothing unusual. The Headmaster told the Tribunal that at this point he was considering contacting Occupational Health if the Claimant did not seek medical help himself.[9]The Tribunal also heard evidence from Mr Jenkins, the Claimant's head of department, who described certain odd and unusual behaviour by the Claimant. For example, he was vague and distracted, and took giant steps as though clearing obstacles.[10]The staff were genuinely concerned about the Claimant; not only about his ability to do the job, but also the risk to students and staff. Later on that same day that the staff had raised their concerns, 12 April, the Headmaster received a call from a parent of a Year 11 student, who had alleged that the Claimant had pointed out to some female pupils that he had an erection. When interviewed he denied this but said that they had made inappropriate remarks to him.[11]Statements were taken from these students by the Headmaster, together with Mrs Duncan, the Claimant's head of year. Each pupil said that the Claimant had suggested to them that he had had an erection while supervising them in class. They were not, in fact, unduly concerned about this but were worried about other aspects of his behaviour, which they identified.[12]One of the students complained that the Claimant had once touched her backside and had looked down her top and told her he could see her breasts. He asked her if she had done topless modelling. It was alleged that he had also played pornography onto an overhead projector. He was, according to other students, displaying other very curious modes of behaviour, including telling a student that he had consorted with prostitutes and describing sexual fantasies.[13]He told another student he had been taken over by aliens and yet another student stated that he had said that terrorists were coming to kill the students and waved an imaginary gun in class and started to kick the door.[14]He was suspended with pay on 19 April 2005. The complaints were referred to the Police Child Protection Unit but no proceedings were instituted. However, this delayed matters significantly because the school understandably could not explore matters further whilst the police were involved.[15]A disciplinary meeting was finally called for 13 October 2005. This was conducted by the Headmaster. The Claimant declined an offer of support from a union representative. The purpose of the meeting was limited to consideration of the events arising out of the complaints lodged on 12 April 2005. He denied all the allegations except that he may have brushed accidentally against the backside of one of the students. He thought the pupils had ganged up on him. The Police checked his laptop and confirmed that there was no pornography present. He attributed his odd way of walking to the need for him to improve his posture. He said that a doctor had found nothing wrong with him.[16]A further meeting, this time with the Governors present, was arranged for 2 November 2005. A union official wrote to the Headmaster on 1 November indicating that he thought the Governors would be well served by seeking advice as to whether they should treat the case as one of illness, rather than misconduct.[17]The meeting went ahead. The Claimant was unaccompanied. He again denied all the allegations. He told the Governors that a person from Community Health had assessed him and given him a clean bill of health. He also said that he had referred to Mrs Duncan, his head of year, that the students had been antagonistic towards him. The meeting was adjourned to investigate whether that was so or not. Mrs Duncan in fact subsequently denied that any such referral had been made.[18]By letter dated 9 November, the Claimant was notified by the Headmaster that he continued to be suspended. The letter also stated that the hearing had raised significant issues regarding the Claimant's health and his suitability to work with young people. The Claimant was notified that Human Resources had advised that a medical referral be made to Occupational Health to obtain medical advice regarding the Claimant's fitness for work.[19]An All Health Referral Form was prepared and variously dated 18 November and 23 November but on 25 November a letter was addressed to the Claimant indicating to him that he was summarily dismissed for gross misconduct as from 23 November. He was notified of a right of appeal. Subsequently, it was indicated that the medical referral had been withdrawn in the light of the panel's decision to dismiss. It transpired that the Governors had met on 23 November, without the Claimant being present, and resolved to dismiss.[20]At the appeal on 17 January 2006 the allegations were considered by three different Governors and this time the Claimant was represented by a union official. The decision to dismiss was upheld. The incident relating to the erection was found not to have been substantiated, but gross misconduct was found with respect to other allegations of misconduct of a sexual nature and intimidatory behaviour directed towards pupils in March 2005.[21]The Tribunal were given a psychiatric report by an associate specialist in adult psychiatry, who expressed the view that the Claimant was suffering from a psychotic illness and that these symptoms would have been present for several years. We consider this report in more detail later in this judgment.[22]Before the Tribunal, the Claimant conceded that investigation and suspension were proper steps to take, as was the referral to the Police, given that the allegations concerned improper behaviour of a sexual nature. However, he submitted that if it were reasonable to suspend whilst checks were made then a further suspension could have occurred pending the obtaining of medical advice.[23]The school's own disciplinary procedure envisaged that genuine sickness and ill health absences would not be operated through the disciplinary procedure. The Human Resources Department had recommended obtaining medical advice and it was unreasonable to dismiss without doing so.[24]The school contended that they acted reasonably in pursuing the allegations under the misconduct procedures, particularly since the Claimant was strongly denying that there was any problem with his health. The school had put matters on hold pending Police investigations, and thereafter they had carried out a proper investigation. They had not sought corroboration of what the children had said, but they were relying on the interviews of those who had complained.[25]The Claimant had never suggested that the wrong procedure was being used. There had been a proper investigation, after reasonable enquiry, and the classic requirements of British Home Stores v Burchell [1978] IRLR 379 had been complied with. There was no question of unfair dismissal. The Tribunal's conclusions[26]The Tribunal concluded that dismissal was unfair in the circumstances. They noted that at the earlier stages the staff considered the bizarre behaviour of the Claimant suggested that there was something wrong with his health. The Headmaster also thought he was ill, as was witnessed by his advice to the Claimant to see his doctor. The disciplinary procedure was expressly stated not to apply "where a teacher believes that an employee's sub-standard performance or behaviour is a matter of incapability for which there are separate procedures. Matters of genuine sickness absence and genuine ill health."[27]The Tribunal accepted that the priority was to protect the interests of the children, but that was achieved by suspension. Thereafter, they found that no proper heed was paid to the suspected illness of the Claimant until the disciplinary procedures had commenced. There had been ample time to refer the Claimant to Occupational Health.[28]The Tribunal concluded that there were three opportunities when the Occupational Health route could have been invoked. The first was during the long delay before the commencement of the disciplinary proceedings; the second was after being alerted by the union official on 1 November that that might be a sensible course; and the third was following the advice of Human Resources that that step should be taken.[29]In those circumstances, the Tribunal concluded that no reasonable employer would have ignored the terms of their own procedure and ignored the advice of Human Resources. No explanation was given as to why the Occupational Health referral could not occur. The Headmaster had, in fact, drafted a pro-forma document for referral to Occupational Health, in which he indicated that he initially had been concerned about the Claimant's state of mind as early as March 2005.[30]Furthermore, the decision to dismiss had been taken without any further resumption of the disciplinary hearing, at a meeting at which the Claimant was neither present nor represented, and in circumstances where the Claimant had been led to believe that there would be a referral to Occupational Health.[31]The Tribunal concluded that:
"The disciplinary hearing should not have been started, it should not have been resumed, there should have been no dismissal and no appeal. No reasonable employer would have ignored the contract, breached its terms, ignored the advice of the Human Resources facility and consistently have treated the ability to deal with the problems of the Claimant as a health problem as a back-up procedure applicable only if discipline failed."
[32]The Tribunal then considered what would have happened had a referral to Occupational Health been made. They concluded that it was not possible to speculate whether the conclusion would have been that it was a short term illness or a permanent condition. In those circumstances, they were not willing to make any assessment as to the likely outcome at all. The remedies hearing[33]The refusal to speculate about what might have occurred then fed into the decision on compensation. The Tribunal indicated that they were not willing to make a finding as to when the Claimant might have been dismissed for ill health, but concluded that he would have been dismissed for some other substantial reason at some stage, which they estimated to be at the end of 2007. The basis for this conclusion was that the local authority had written to the Department for Education and Skills reporting the alleged incidents. The Department had in fact not reacted to this until May 2007 (perhaps because they were awaiting the Tribunal decision on liability). The Department can issue a direction prohibiting someone from teaching in certain circumstances. The Tribunal took the view that this would have happened here, given the findings that the Claimant had placed the children at risk, but not until the end of 2007.[34]The Tribunal also concluded that the Claimant could have taken a low paid job from some six months after his appeal failed. Compensation was therefore calculated on the loss of wages from the date of dismissal, namely 23 November 2005, until the end of 2007, with credit being given for the money that they felt he could have earned had he reasonably mitigated his loss. The grounds of appeal[35]We turn to consider the grounds of appeal, focusing first on the liability hearing. First, it is alleged that the Tribunal erred in law in concluding that the misconduct procedures ought not to have been adopted and that the ill health procedures were the appropriate ones to follow.[36]Mr Wynne submits that the reference to ill health in the misconduct procedures is merely intended to confirm that matters relating to competence and performance ought not to be treated as misconduct. They do not prevent an employer from invoking the misconduct procedures where they believe that serious misconduct has been committed merely because it may have a medical cause. In this case the employer genuinely did believe that the Claimant had committed serious misconduct; they did so after reasonable investigations; and given the gravity of the offences, dismissal was within the range of reasonable responses. Indeed, the Tribunal had effectively accepted that by recognising that the conduct would have justified the DES in making a direction to forbid the Claimant's continuing employment. The only proper finding in the circumstances was that the dismissal was fair.[37]Second, it is submitted that in any event, the Tribunal erred because it appears to have been under the misunderstanding that the reference to Occupational Health was initially seen as an alternative to the misconduct procedures. That is not so, and it is not what the HR Department had intended; it was simply an additional step being considered by the school, alongside the misconduct procedures, in case the latter did not result in dismissal. The referral to Occupational Health then became unnecessary once the decision to dismiss was taken. The decision to consider a referral to them did not in any way undermine or negate the operation of the misconduct procedures.[38]The third ground concerns the refusal to speculate as to what would have been the effect of a referral to Occupational Health. It is submitted that the Tribunal was obliged to have regard to the potential consequences of any such referral. If, for example, the Occupational Health department had concluded that there was no material illness, which indeed was what the Claimant himself was saying, then the decision to dismiss for misconduct would inevitably have stood. Alternatively, the result might have been that the behaviour was related to ill health, in which case dismissal would still be justified.[39]Section 98A(2) of the Employment Rights Act indicates that even if procedures are not properly complied with, a dismissal will be fair if, on the balance of probabilities, a fair dismissal would have occurred in any event. It is only if the Tribunal had concluded that as a result of the reference the school would on the balance of probabilities not have dismissed that the decision could be rendered unfair.[40]The grounds of appeal relating to the remedy hearing overlap. Here it is said that the Tribunal was obliged to make a finding as to the likelihood of dismissal occurring even after a reference to the Occupational Health department. In this case the employee had committed serious acts of misconduct and there would have to be powerful reasons for not dismissing in those circumstances. In particular, there would have to be a realistic belief that the source of the behaviour could be eliminated or controlled in some way.[41]There was plainly material here which would have enabled the Tribunal to make some educated assessment of the chances of dismissal being implemented in any event, and in particular, the psychiatric report which was produced to the Tribunal.[42]Further, it is submitted that the Tribunal simply failed to consider at all the question of whether there was contributory fault, which would have reduced the compensation in this case.[43]Finally, Mr Wynne submits that the decision of the Tribunal is perverse. It concluded that the DES would have directed that the continuing employment of the Claimant would have been inappropriate given his behaviour, even if it was the result of his illness. But if that was so, then the assumption must equally be that the school would have been entitled - indeed required - to dismiss him where the alternative was to put children at risk. Conclusions[44]In our judgment, the employers were entitled to consider whether the allegations made against the Claimant had been established by invoking the misconduct procedures. Serious allegations regarding inappropriate conduct of a sexual nature had been made, and it was in our view proper for them to determine whether or not the misconduct had occurred as alleged. This is particularly so given that the Claimant himself was at all times adamantly contending that he was not ill and had indeed seen a doctor who confirmed that.[45]We accept, therefore, that the Tribunal did err in concluding that the misconduct procedures should never even have been invoked. However, independently of that issue, it seems to us that in substance the Tribunal was concluding that the employers had acted unfairly in two respects.[46]First, the decision to dismiss had been taken with no resumption of the disciplinary hearing and with the Claimant not being present nor represented. Second, the Tribunal clearly considered that the procedures should in any event have been suspended pending the referral to Occupational Health. That might have given further information to the employers which would have been highly material at the stage of determining whether, in the circumstances, dismissal was an appropriate sanction to impose. It might also have caused them to take the view that the case really ought to be seen as an ill health issue rather than one relating to conduct.[47]In our judgment, these were findings which the Tribunal were fully entitled to make. They were entitled to conclude that a reasonable employer would not have dismissed for these acts of misconduct without at least taking steps to investigate further whether they may have had a medical or psychological cause which could have been adequately treated. Mr Wynne also submits that the Tribunal was under the misapprehension that the school initially intended to treat the referral as related to the disciplinary process but later changed its mind. We see nothing in this point.[48]The Tribunal clearly found that no reasonable employer would have treated the question of health wholly independently from the disciplinary process. We think that they were plainly right to do so. It is, after all, obligatory for tribunals to assess fairness under section 98(4) of the Employment Rights Act by having regard to all the circumstances of the case, and this is a relevant circumstance. We think it matters not whether the school never intended to treat the two processes as interrelated or whether it changed its stance on this issue. Either way, it was acting unreasonably.[49]This was particularly so given that the Headmaster had indicated in the letter to the Claimant dated 9 November that the matter would be referred to Occupational Health. Mr Wynne says that the Headmaster was not intending to suggest that this referral was part of the disciplinary process. It was always intended to be a referral which was quite independent of the disciplinary procedures, and once those led to the dismissal, the referral was pointless. We do not think that a reasonable employee would in fact have read the letter in that way. He would have thought that the procedures were on hold pending the referral. In any event, that is what a reasonable employer ought to have done.[50]It follows that in our judgment the finding of unfair dismissal itself cannot be criticised. The remedies hearing[51]However, we accept the appeal with respect to the remedies hearing. In our judgment, the Tribunal was wrong to say that they could not speculate as to what might have occurred had the reference to Occupational Health taken place.[52]The Tribunal ought to have adopted a Polkey approach and determined what the chances were that dismissal would have occurred in any event, and at what stage. The courts have recently emphasised that it is only in exceptional cases that the tribunal should not enter into the exercise of seeking to assess what would have happened had the procedures been complied with; see the Court of Appeal decision in Scope v Thornett [2007] IRLR 155 and the guidance given by the EAT in the light of that and other decisions in Software 2000 Ltd v Andrews [2007] IRLR 568 para.54.[53]The evidence must be extremely sparse for a tribunal simply to refuse to engage in the exercise because it is too speculative. In our judgment, we are nowhere near that situation here. The background is that the Claimant was committing acts of wholly inappropriate behaviour with impressionable girls which the school could not be expected to tolerate. They could not take risks.[54]Added to that there was also a psychiatric report, which gave the Tribunal considerable understanding of the nature of the illness which the Claimant had. The psychiatrist confirmed that the Claimant considered that there was nothing wrong with him. He also noted that the Claimant's mother had disclosed concerns about her son's mental health to her GP some three years earlier.[55]The psychiatrist's conclusion was that the Claimant was suffering from symptoms that are related to a psychotic illness. Those symptoms had been present for many years but generally the Claimant was able to cover them up. However, "at times, things get out of control." At the end of the report he said this:
"Finally, with regards to the issue of disability, Mr Clarke may fulfil the criteria on the basis of having a mental illness. This has been a long-term problem and has had substantial effect on Matthew's ability to carry out his normal day-to-day activities and has had a serious impact on his life. It is likely that Matthew's ability to carry out normal day-to-day activities could be interrupted by the recurrence of his abnormal and bizarre thought process. Looking at the doctor's interview with Mr Clarke on the 11 th July 2005, it appears that his conclusion was that Mr Clarke has some social difficulties and there are a few paranoid ideas but at that time he did not seem to be suffering from an active mental illness. This is also my judgement that at this stage there is no active or florid psychotic illness. However, the risk of fluctuations in Matthew's mental illness is always present especially when he is under stress, particularly when he feels he is unsupported in situations. It is possible that the reason why recently he has been in a more stable frame of mind is because he has been away from the stressful circumstances that existed at Hastingsbury Upper School."
[56]We are in no doubt that the Tribunal was wrong to refuse to assess the likely outcome of a referral from the material that it had. We also accept Mr Wynne's argument that it is perverse for the Tribunal to say that the school would have been obliged to dismiss because in all probability the DES would have required this, and yet be unwilling to make an informed judgment as to what the school would have done.[57]In normal circumstances the appropriate course would be to send this case back to the Tribunal to reconsider the question of compensation in the light of our findings. However, we have decided in the exceptional circumstances of this case that bearing in mind the overriding objectives, and in particular the need to deal with the case expeditiously and so as to save expense, we will ourselves assess the compensation.[58]We have been confirmed in this approach by three considerations. The first is that the Respondent is happy with that course; the second is that the overwhelming likelihood is that the Claimant will not be in a position to attend the rehearing in any event given the position in which he currently finds himself. Finally, and most importantly, we all of us have no doubt that given the conclusions of the psychiatrist, and in particular that the underlying mental illness will always be present if the Claimant is under stress, the only possible conclusion is that had the matter been referred to Occupational Health, the outcome would necessarily have been that the school would have had to dismiss.[59]The school could not conceivably have taken the risk of recurring problems of the kind they had experienced. In those circumstances we think that the compensatory award would have been limited to the time it would take to have obtained the medical report. We consider that we - and particularly the lay members - are with respect in as good a position as the Employment Tribunal to assess that period and it would simply add to the costs to remit the matter. We have estimated the time to be some 10 weeks.[60]We should add that we have considered the argument based on section 98A(2). We do not accede to it for two reasons. First, it seems highly likely that it was not argued below -counsel could not remember whether he had raised it or not, but it is not mentioned in the Tribunal's decision, and we would have expected it to have been raised. Second, in any event we think that the better view is that the principle applies only if the dismissal would have occurred at the same time as it did, had the procedures been properly complied with. Here the unfairness was failing to make the referral, particularly after the Claimant had been told that it would occur. In those circumstances we think that there would inevitably have been a delay in dismissing whilst the medical information was obtained. Although there could later have been a fair dismissal, it would necessarily have been at a later date.[61]The question of contributory fault raises an issue of some difficulty, and we have been taken to none of the authorities. However, it seems to us that once it is accepted that the problem did have its roots in the underlying mental illness, it is difficult to say that the conduct was culpable, and that is the conduct necessary to constitute contributory fault: see Nelson v British Broadcasting Corporation (no.2) [1980] ICR 110. Disposal[62]We uphold the finding of unfair dismissal but find that the Tribunal erred in its approach to the amount of compensation. In our view it should have been calculated on the basis that the dismissal would have occurred in any event even had medical information been obtained, but that there would have been a delay of some ten weeks. Since the Claimant would shortly have been dismissed anyway, there is no justification for the award for statutory rights. Nor, in the circumstances, does he have to give credit for sums earned elsewhere since he appears not to have earned any in that period.[63]It follows that the compensation should be the basic award and ten weeks' net pay. On the figures before the Tribunal this gives a total of £4,360 (ignoring the pennies.) We therefore substitute a finding that the compensation in the sum of £4,360 should be awarded in lieu of the sum awarded by the Tribunal. To that extent, this appeal succeeds.