MR J LIVERSIDGE v THE MAYOR & BURGESSES OF THE LONDON BOROUGH OF HARINGEY & THE GOVERNING BODY OF WOODSIDE HIGH SCHOOL [2009] UKEAT 0091_09_0906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0091_09_0906Case No Appeal No. UKEAT/0091/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J LIVERSIDGEAPPELLANTTHE MAYOR & BURGESSES OF THE LONDON BOROUGH OF HARINGEY & THE GOVERNING BODY OF WOODSIDE HIGH SCHOOLRESPONDENT
Before
His Honour Judge ReidDate 9 June 2009
[1]APPEARANCES For the Appellant MS PAMELA M R WALSH (Solicitor) Messrs L. Bingham & Co Solicitors Chancery House 53-64 Chancery Lane London WC2A 1QU For the Respondents MR JAKE DAVIS (of Counsel) Instructed by: London Borough of Haringey Corporate Legal Services Alexandra House 10 Station Road Wood Green London N22 7TR SUMMARY UNFAIR DISMISSAL The Appellant was dismissed from his post as a teacher. The Employment Tribunal held the principal reason for his dismissal was his dishonesty in stating he held Qualified Teacher status. The Employment Tribunal decision failed to give adequate reasons as to why the decision of the dismissing panel was fair and one for which they had adequate grounds for belief and in reaching its own conclusions as to the Appellant's dishonesty failed to deal with substantial points. The decision was not Meek compliant. Remitted for re-hearing. HIS HONOUR JUDGE REID QC This is an appeal from a decision of the Employment Tribunal held at Watford on 21, 22, 23, 24, 25 and 28 April last year. The judgment of the Tribunal is dated 8 July 2008. By it the Tribunal held that the Claimant was dismissed for reasons relating to his conduct and that his dismissal was fair. A claim for age discrimination was dismissed on withdrawal. Against that decision the Claimant appealed. The matter came before the President at an earlier stage.[2]The President clearly took the view that the basis of the dismissal had been gross misconduct in the form of deliberate dishonesty and allowed the matter to go to a full hearing on two matters. The first was the inadequacy of the reasoning of the Tribunal and the second was the possibility of a perversity argument. There was a further point which emerged which was a suggestion that the matter in respect of which the Claimant was found to have been dishonest by the Tribunal and by his employer was a matter in respect to which he was in fact absolutely right. That matter related to whether or not he had Qualified Teacher Status of which more anon.[3]The history of the matter is this: the Claimant was in the catering trade; he then switched over so that he went into education. He obtained a certificate of education from Leeds University having studied at what is now Huddersfield University and was then, as I understand it, Huddersfield Tech, and the certificate was duly issued on 17 July 1978. Thereafter he was engaged in education work first at colleges of further education and then he switched over to teaching in a school.[4]His employment was following an application to the London Borough of Haringey on 11 May 1997. By an application document he was asked, among other things, for "DfE letter confirming Qualified Teaching Status" to which he responded:
"I was not issued with this back in 1978."
[5]Haringey, who should then have checked as to his Qualified Teaching Status ("QTS"), appear to have sent an inquiry to the DfEE, as it then was, on 2 June 1997 but never to have received a response, and never to have chased up the matter. They appear to have then filled in an appointment checklist under which under the "Documents Returned" section the "DfE letter" paragraph has simply got written against it, "Inquiry to DfEE 02/06/97". Notwithstanding the absence of any written response he was then appointed.[6]We have a contract of his which gives his appointment from 1 September 1997 but his continuous service date from 1 September 1990 at his last school, White Hart Lane Secondary School, where he is described as being appointed as a "Permanent Fulltime Qualified", and I emphasise that, "Teacher" in the employment of the London Borough of Haringey as a "Permanent Fulltime Teacher."[7]Thereafter he received a further contract and in 2005 he applied for a further post with the school, though by this time he had received a letter dated 21 February 2005 which should have given him pause for thought about his QTS status. The General Teaching Council for England, which by this time was apparently responsible for maintaining the register of qualified teachers, had sent him a mailing, presumably along with many others, about his QTS to which he had responded. The letter back from the GTC said this:
"Many thanks for responding to our recent mailing regarding your Qualified Teacher Status (QTS). From the information you supplied we investigated the matter and found that unfortunately the qualification you hold (which must mean the certificate of education) does not qualify you to teach in maintained primary and secondary schools, non-maintained special schools, pupil referral units or undertake supply work in England, as it is a qualification specifically for teaching in post compulsory education (16+), where QTS is not a requirement. Previously teachers with further education qualifications could be eligible for the award of QTS if they took up employment in a maintained school and were then recommended for the award QTS by their employer to the Department for Education and Skills (DfES). However, from 1 September 1989 new legislation closed this route to QTS. We have investigated your file with the DfES and were unable to find any trace of you being awarded QTS. In addition to this, we have also requested a copy of your employment record from Teacher's Pensions, which shows that you did not work in the maintained sector before 1 September 1989. We are, therefore, unable to award you QTS. If you can provide us with any further evidence of being awarded QTS we will look into the matter again for you."
Then it goes on to talk about the requirement for QTS for employment as a Qualified Teacher, the possibility of working as an Instructor and the possibility of gaining a QTS.[8]The Claimant, took that letter on 23 February 2005 to the Headmaster, Mr David Daniels. Mr Daniels in effect said, "Leave it with me." Not a vast amount appears to have been done by Mr Daniels who was, by this time, coming towards the end of his time, as I understand it, at the school. In April the Claimant completed the job application form which lies at the heart of this appeal.[9]The application form contains the following information, "Post applied for: Lead of Vocational Education." Then after giving his personal details answers the question, "Are you recognised by the DfES as a Qualified Teacher?" "Yes" is ticked. "DfES ref no: 77/73544" is given. "GTC number:
" and that is left blank. He fills in his teaching qualifications correctly; he gives his Higher Education qualifications and he then gives the Headmaster and the Lead Inspector of the school as his references and signs a declaration: "
I declare that to the best of my knowledge the information I have given on this form is correct and I have not omitted any facts which may have a bearing on my application. I understand that if any of the information provided by me is found to be false, any contract of employment may be terminated without notice."[10]Following interview the Claimant was appointed as Lead of Vocational Education, a post he held alongside his role as 'Head of Food'. In May of that year apparently Mr Daniels left and was replaced by a new Head Teacher. After that an audit was undertaken as a result of which there were considerable concerns about the work being undertaken in the Catering Department. Particular matters which gave rise to concerns related to use of a credit card which a number of members of staff, including the Claimant, had, which he used for the acquisition of food for the restaurant. The restaurant was used effectively for work training by those studying catering at the school, studying an NVQ. That restaurant was named Foodles. There is an issue as to whether or not that restaurant was self-financing. There were problems in relation to the work that was being done by the students and the extent to which their NVQs were being properly monitored and the extent to which indeed some of them have been entered into NVQs. In particular issues were raised in relation to the Claimant's qualification, and an investigation launched.[11]In February 2006 he had received a further letter which was not in evidence from the GTC. He had brought that to the new Head Teacher but did not leave it with her and she did not have the opportunity of reading it. He was, however, sufficiently concerned in April of that year to make inquiries at Middlesex University about how he could obtain QTS status. The ongoing investigation resulted first of all in his going off sick on 14 June 2006. That in itself, in his absence and the absence of anyone to replace him, resulted in a Grade Three sanction against the school in relation to its Catering Department.[12]In October 2006, following the investigation, the Claimant, having raised a grievance against the Head Teacher, was summoned to a grievance hearing and disciplinary hearing. The disciplinary hearing being in relation to two matters. The charges are set out as follows:
" D1.2 That you failed to meet the required standard of your job performance. D1.3 That you failed to meet the professional standards relating to gross misconduct including the following acts: Submitting a fraudulent application, Failure to meet standards of professional conduct."
[13]There was a lengthy disciplinary hearing on the afternoon of the day on which the grievance hearing took place. The disciplinary hearing took place on 15 December. At that meeting, among others who gave evidence by means of a statement since his cross-examination was not required, was Mr Daniels, the former Headmaster. Mr Daniels had been part of the interviewing panel who had interviewed the Claimant on the job application out of which the disciplinary hearing arises and out of which his appointment had arisen.[14]The outcome of the disciplinary hearing was that the panel found, on the balance of probability, that the case was proven against him and that he was to be summarily dismissed from his post. The panel set out its reasons. It held that it had been demonstrated that the Claimant had failed to meet expected standards of performance, that he had clear responsibilities in his role, that he failed to acknowledge and accept them and that he had fallen down in his responsibilities as Head of Food. Then moving on, so far as his position as Lead of Vocational Education was concerned, it said this:
"It was your responsibility to ensure that the students were adequately prepared for NVQs Level 1 and Level 2. There is sufficient evidence from both Internal and the External Verifiers that the students were not so prepared. The Internal Verifier came in to the school on 14 June (that is to say two days before he went off sick) and, after observing the students' portfolios, reported that they could not pass the coursework. Following feedback from the Internal Verifier, you went off sick the following day. It is the panel's view that at this late stage, six weeks prior to the end of the course, it was unacceptable for students' portfolios to be half finished; and it was unfair for the students to be put in that position. It was the panel's view that by the time of your absence from school, you had already jeopardised the students' NVQ prospects. Further, by your lack of planning and preparation you put senior management in a difficult position at a time, towards the end of term, when the school faced significant pressure due to public examinations. As a consequence of your failures, the school has had NVQ status withdrawn (that appears to be a doubtful statement). The panel considered your oral submission as to the difficulties owing to the lack of an Internal Verifier and the impact of Foodles' closure (the restaurant having been closed following the audit). However, the panel felt that you did nothing of consequence to remedy the position and therefore failed in your responsibilities, as the Lead of Vocational Education, to ensure that the students were fully prepared."
[15]The panel then went on to say that it was disturbed to learn he did not have Qualified Teacher Status:
"This must have been known to you from the time of your first appointment to the school as you do not have the relevant Higher Education attainments nor have you completed a course which would qualify you to teach in the maintained school sector. This was confirmed beyond any doubt you might have had, by the GTC letter to you of 21 February 2005. Nonetheless, you submitted an application two months later, in April 2005, for a senior teaching post for which you knew you were not qualified. By doing so you knowingly gave false information about your status. This in itself, as you know from the declaration you signed on that application form, is sufficient to warrant your summary dismissal."
[16]It then deals with the terms of the letter. It goes on:
"You were sufficiently concerned about your status immediately to seek advice from your then Head Teacher, David Daniels; but not concerned enough to remedy the situation. The panel noted that again you failed to take responsibility and did not accept that it was up to you to seek QTS. The panel's view is that you have failed to meet the standards of professional conduct and you failed to meet the professional standards relating to gross misconduct, including the submission of a fraudulent application for a teaching position. You have the right of appeal against the panel's decision."
[17]He exercised the right to appeal but, in fact, did not attend at the appeal hearing and the appeal was dismissed. The appeal majored, I think it is safe to say, in his absence on the dishonesty point but since he did not attend and since it was by way of a review it does not seem to us that anything very much turns on the precise conduct of that review. The Claimant then went to the Employment Tribunal. The Employment Tribunal conducted a lengthy hearing, as is apparent from the number of days that it took, and produced a comparatively short decision.[18]What is of concern to us in the decision is what I would describe as the guts of it in the conclusions beginning at paragraph 29. The Tribunal say this:
"We spent some time considering what we thought was the reason for dismissal. To some extent our task has been made rather more difficult by the various reasons put forward by the Respondents. Given that we have found that the Claimant's answer to the question with respect to qualified teacher in his application in April of 2005 to be misleading and untruthful, we take the view that that must amount to misconduct. It is serious enough to amount to gross misconduct given that it is a central requirement of employment as a teacher in the state sector that QTS is held. We are satisfied that the reason for dismissal was conduct related. The other reasons put forward may well have been reasons that were in the Respondents' mind when they took the decision to dismiss. These other reasons obviously include concerns about his performance and we accept that there were serious concerns about the Claimant's performance and that clearly falls within capability. The Respondents might also have been able to rely on some other substantial reason with respect to Qualified Teacher Status if they had not decided to concentrate on the conduct aspect of the Claimant's representation with respect to this application in April of 2005. We are satisfied that the central reason, the principal reason, was conduct related so we go on then to decide whether the dismissal was fair or unfair."
[19]Reading that fairly it seems to us that the Tribunal were probably finding that the dishonesty, if found in relation to the filling of the application form, was the gross misconduct and was the conduct which was relied on by the employer to dismiss. They then go on to paragraph 30 to assess the Respondents' response to their concerns and to the conduct complained of, and assess whether they had a genuine belief in the Claimant's guilt. The Tribunal holds that the General Teaching Council's letter of 2005 made the position clear. It did not accept that it was reasonable for the Claimant to believe he had QTS and they added that for completeness their reading of the regulations did not indicate that the Claimant could reasonably have thought he had QTS:
"The Respondents carried out a significant investigation into other matters around competence and they clearly considered the position with respect to Qualified Teacher Status and what the Claimant said about his position there."
[20]Now, what is surprising about this judgment and about the comparatively short findings of fact and their conclusions is how little they say about the findings of dishonesty. The President, when allowing this matter to come through for a full hearing, said this at paragraph 8 of his decision:
"In view of the seriousness of a dismissal on the basis of deliberate dishonesty, I would have expected the Tribunal to consider in some detail the evidential basis on which the panel's conclusion was reached before concluding it was fair. The Tribunal did not, in fact, expressly consider the panel's reasoning at all but simply recorded it's own finding at paragraph 10, in the course of its findings of fact, that to tick the box in the way the Appellant did "was … a misleading and untruthful answer … given that the Claimant knew the position with respect to his QTS having received the letter from the GTC only two months previously"
. No more is said, although there is a broadly similar observation at paragraph 30 of the Reasons. Giving its own finding on the question of dishonesty rather than considering the legitimacy of the decision of the panel is, strictly speaking, wrong; but it might not in itself vitiate the Tribunal's reasoning, since it could be said its own finding on the point necessarily meant the panel's conclusion was reasonable, at least in a case like the present. But I do consider it arguable that, given the matters to which I have already referred, the Appellant was entitled to fuller reasoning, addressing the points to which I have referred above. The omission to give such reasons would, at the very least, give the Appellant an argument based on a breach of the Tribunal's duty to give adequate reasons; but it might also - depending, as I say, on the evidence - give him a perversity argument."[21]The first matters which the Tribunal failed to address in any detail - and this is probably because it was not cited to them - the argument that he was in fact a qualified teacher by reason of his having come aboard, so to speak, under the 1959 Schools Regulations. Regulation 16 provided:
"2. A teacher shall, subject to paragraph three of this regulation and to regulation 17 and 18, be a Qualified Teacher, that is to say any of the following, (a) a person who has successfully completed either … a certificate of Further Education or various other things … and in each case has been accepted b the Secretary of State as a Qualified Teacher."
[22]Now, it is true that the Claimant does not assert that he ever received any documentation from the Secretary of State saying that he is a Qualified Teacher but we suppose it might at least have been argued that in the 27 years between 1978 and 2005 it had gone astray and the Tribunal simply gloss over that point. For our part we were not satisfied that he was a Qualified Teacher. It seems extremely implausible that he would not have had some form of record of it from the DfES and it seems further implausible that the GTC would have failed to find some trace of it when inquiry was made of them at the end of 2004, either in their own records or by their own inquiries of the Ministry.[23]That apart there were a substantial number of other points. First of all Haringey appear to have accepted him as a Qualified Teacher. The answer to that is that Haringey made an inquiry and did not bother to wait on any answer or to chase up any answer, but here was somebody with a certificate of education, who had made an application, knew he was being checked up on and was then appointed. That was something which the Tribunal should at least have taken into account.[24]Then there are(i) the form of his contract: he is described in that as being a Qualified Teacher;(ii) the length of his service;(iii) the fact that he took the 2005 letter to the then Head Teacher. He had already responded to the GTC's mailing and when he received the response he did not hide it. He took it to his Head Teacher and asked his Head Teacher to sort it out.(iv) The fact that he tried to take the 2006 letter to the new Head;(v) the fact that he did not fill in the GTC box on the application form. It is noticeably left blank although he ticked yes to "Are you recognised by DfES as a Qualified Teacher?" he did not give a GTC number.[25]Beyond that, he went through an interview where there was an obvious omission on the face of his application form. Nobody on the panel apparently thought fit to pick that up. As a matter of good practice, of course, on any interviewing panel there is usually somebody from HR, either on the panel or sitting in, who will make certain that any possible discrepancies on the application are taken up at the very opening of the interview - this was yet another failing on Haringey's part. The old Head who knew the position was on the panel and apparently raised no issue about it.[26]Furthermore, once he was appointed, in April 2006 before the problems in June and before the disciplinary charges, he was discussing the possibility of rectification of the matter with Middlesex University. None of this gets any mention or consideration of any worth in the Tribunal's decision. The Tribunal did not seek to examine the reasonableness, or otherwise of the dismissing panel's finding. It merely expressed its own view but without reference to these points.[27]In our view those deficiencies are such that the Claimant can properly say that the decision is not, to use the usual expression, Meek compliant. He was entitled to proper reasons, particularly with the finding as serious as that of dishonesty and he did not get them. It might be said that he was disingenuous with his dealings with the 2005 letter. It might very well be said that it was difficult to see what he was saying, whether he was saying that he was not qualified but Haringey were bound to treat him as qualified, or that he honestly but mistakenly believed he was qualified. It might be said that the dismissing panel considered all these matters and came to a conclusion within the ambit of reasonable responses. None of that absolves the Tribunal from giving proper reasons.[28]We have considered the question of whether or not the dismissal would in any event be justified and the Tribunal's decision can be saved because there were other substantial grounds on which he could have been dismissed. Regrettably the Tribunal's decision does not make any findings in relation to the other grounds on which he was summoned to a disciplinary hearing.[29]It seems to us that the only course open to us in these circumstances is to say that the matter should go back to be retried before a different Tribunal. We are not able to find on the paucity of the reasoning by the Tribunal that the decision was perverse. It is, therefore, not a case in which we simply reverse the Tribunal's decision and say, "The ground they found was the central ground for dismissal was not made out, therefore, he was unfairly dismissed." It is a step short of that.[30]The reasoning is such that we are unable to say what the proper answer on the Tribunal's findings ought to be. This means that the matter has to go back. It means also that next time around, if there is a next time around, all grounds are up for argument again. Any rehearing is inevitably bound to be extremely lengthy and it will be costly, costly not only to the Claimant but also to the school and the London borough.[31]On the face of the documentation there must be a very, very real possibility that another Tribunal, giving rather better reasons, will come to an identical conclusion as to the fairness of the dismissal whatever it finds the principal reason for dismissal to have been. That is, of course, not a foregone conclusion. It will depend on the evidence that is called on the next occasion, but we would urge the parties at this stage in the interests not only of costs but also of Mr Liversidge's health, given that he has apparently been suffering with stress for almost exactly three years now, to see whether it is possible to reach some accommodation.[32]Of course, if the matter is disposed of by means of a compromise agreement there will be no finding of dishonesty, which would no doubt be a considerable comfort to Mr Liversidge. Equally, if Mr Liversidge is going to go down the compromise agreement route he would be an extremely foolish man if he thought that he was likely to obtain any very substantial sum by way of compromise.[33]It follows that in the circumstances of the case we allow the appeal, set aside the decision of the Tribunal and direct that it be remitted for rehearing by a different Tribunal. We say this with fairly heavy hearts because it is a regrettable state of affairs but, it seems to us, the only way in which justice can properly be done on the facts of this case.