Frew v Springboig St John's School (Unfair Dismissal : Polkey deduction) [2011] UKEAT 0052_10_1105

EAT

Frew v Springboig St John's School (Unfair Dismissal : Polkey deduction)

[2011] UKEAT 0052_10_1105 · 2011-05-11

[1]This is an employee’s appeal from the judgment of an Employment Tribunal sitting at Glasgow, Employment Judge, Mr C S Watt, registered on 24 June 2010 holding that the Respondent unfairly dismissed the Claimant but making no monetary award of any type.

[2]The Claimant was represented by Mr P McConville, solicitor, before the Tribunal and by Mr T Doherty, before us. The Respondent was represented by Ms Stark, advocate, before the Tribunal and before us.

[3]We will continue referring to parties as Claimant and Respondent. Background

[4]Springboig St John’s School was a residential school for certain teenagers, particularly those referred to it by the Children’s Hearing. The school had about 38 pupils but 108 teaching and social work staff. The Claimant was employed there as a social worker between 1992 and his dismissal on 20 August 2009. He had a role as key worker for various children including boys A and B. They had targeted the Claimant on occasions from March 2009 onwards including pelting him with snowballs and removing his glasses/slapping his head in “happy slapping” incidents.

[5]An incident occurred on 30 April 2009. The Tribunal made their own findings about what happened. They were that the Claimant was taking A and B to the school’s multi- gym facility, B started smoking and both boys started being abusive to the Claimant. At one point, they said to him “We’re going to put you down”. B then went around the back of the Claimant and tried to take hold of him at which the Claimant became alarmed, turned round, took hold of B, put him down in the corridor and, according to the Tribunal’s findings at paragraph 16:

“The claimant lost control and kicked Boy B on the shin.”

[6]The upshot was that the boys were shouting and abusive and the Claimant was visibly shaken. The Claimant then went to the Deputy Principal’s office (Mr McFadden); the Tribunal go on to make the following findings:

“It was evident to Mr McFadden that Mr Frew was in an emotional state and was tearful. Mr Frew asked to speak to Mr McFadden in private and they then made their way to a review room. Mr Frew was tearful and took a couple of minutes to compose himself.” and having told him about the boys’ threat to put him down, explained that he had become concerned, frightened, alarmed and distressed, thinking that both the boys were going to assault him. He: “…turned round, took hold of Boy B in the corridor outside the Duty Office. He told Mr McFadden that he lost control of himself and had kicked Boy B on the shin.”

[7]Boy B was interviewed and a statement taken from him which included “Billy turned round and kicked me in the shin. He then grabbed hold of me and pushed me to the floor.” That statement was not provided to the Claimant or his solicitor (who accompanied him at the subsequent disciplinary hearing). Accordingly, they did not have the opportunity to explore the discrepancies between his account and that of the Claimant.

[8]The Claimant was suspended. Boy B stated he did not want to complain to the police and when the Respondent, nonetheless, called the police, refused to give them a statement.

[9]The Claimant was called to a disciplinary hearing. It took place on 12 August 2009. The Claimant stated that he had taken B by the shoulder and put him down and on the way down “our legs did come together”. Whilst he accepted that he had told Mr McFadden at the time that he had kicked B, that was not, he said, what really happened – he was in an emotional state at the time and what had really happened was that their legs had “come together” in the course of the incident. He also made reference to what had been witnessed by another social worker, Fiona Bowman, shortly after the incident. At that point, Mr McCambridge who was, at that time, the Chairman of the respondent’s Board of Managers, called a halt to the hearing so that he could take a statement from Ms Bowman. He did so, on 17 August 2009. The hearing was, however, never resumed and the Claimant never had an opportunity to make submissions regarding his case; in particular, he had no opportunity to advance any mitigation. So far as he was concerned, matters had not got beyond the stage of him being questioned.

[10]The decision to dismiss the Claimant was taken at a full Board meeting on 19 August 2009. There are no findings in fact as to the size of the Board but it is evident that the decision to dismiss was taken by a group which included people who had not been involved in the investigation or present at the disciplinary hearing and who had not heard directly from the Claimant regarding his position as to what happened or as to any mitigation that he wished to lay before them.

[11]The Claimant was advised of his dismissal by letter dated 20 August 2009 the terms of which included:

“After due consideration the full Board has unanimously decided that, on the basis of the evidence produced to them, you did assault Boy B as stated and as a result have decided to terminate your employment with immediate effect.”

[12]The letter also advised him that he had a right to appeal, but only in writing. His solicitor sought an appeal hearing for the Claimant but it was denied. Correspondence ensued in which he asked for a hearing and made clear(a) that the Claimant’s position was that there were a number of procedural irregularities at the disciplinary hearing stage such that he did not have a fair hearing,

(b) that he sought to challenge the Respondent’s conclusion that his account of events was not to be believed, and

[13]The Tribunal found that the dismissal was procedurally unfair. They found that there was “one absolutely glaring error that has been committed by the respondents” namely “that there was no appeal whatsoever” (paragraph 66). Otherwise, they comment that there were “some relatively minor procedural errors” (paragraph 65) and cite, as an example, the fact that the respondent did not show B’s statement to the Claimant or his solicitor. They give no consideration to the Respondent’s failure to reconvene the disciplinary hearing after calling it to a halt to enable a statement to be taken from Ms Bowman.

[14]Turning to Polkey , the Tribunal state, at paragraph 70:

“The Tribunal are satisfied in this case that if a proper disciplinary procedure had taken place with no procedural errors and with a full appeal, the Tribunal are satisfied that there is a 100% probability that Mr Frew would still have been dismissed.”

[15]In arriving at that conclusion they said the “main fact” was that the Claimant had admitted kicking boy immediately after the incident and that:

“….any objective person would have to have regarded that as grave and serious evidence against Mr Frew and, in the circumstances, the Tribunal consider that there is a 100% probability that Mr Frew would have been dismissed, even if a proper disciplinary procedure had been used including a proper appeal.”

[16]The Tribunal then moved on to deal with the issue of compensation and found that no award should be made because the Claimant was 100% to blame for his own dismissal. That was because his conduct in kicking B was “culpable and blameworthy” and was not self defence.

[17]The Tribunal gave no consideration to the making of a basic award. The Appeal

[18]For the Claimant, Mr Doherty submitted that the Tribunal had erred in law in arriving at a 100% Polkey deduction. They had failed to take account of the whole circumstances which included that the decision to dismiss was arrived at without the disciplinary hearing being completed (which would have included final submissions including as to sanction in the event that the Claimant was to be found guilty of misconduct) and without an appeal hearing. The Tribunal had failed to have regard to the fact that an appeal hearing would have required to consider not only the issue of whether or not the misconduct alleged had occurred but, if it did, what, in the whole circumstances, including any mitigation advanced, was the appropriate sanction. They had looked only at the issue of whether or not there was misconduct, looked at that from only the Respondent’s perspective and engaged in speculation that went too far. The conclusion that there was a 100% likelihood of dismissal in any event was, on the facts found, not one at which a Tribunal could reasonably arrive.

[19]In support of these submissions, Mr Doherty referred to the cases of King v Eaton Ltd No 2

[1998] IRLR 686

and Langstone v Dept of BERR

UKEAT/0534/09

[20]Regarding compensation, Mr Doherty submitted that the Tribunal had erred. They had failed to take account of all the circumstances, as outlined in his submission on Polkey when arriving at their conclusion on contribution.

[21]Mr Doherty also submitted that the Tribunal had erred in failing to consider and make a basic award.

[22]For the Respondent, Ms Stark submitted that as regards Polkey , it was a matter of looking at what would have been the likely grounds at any appeal hearing, had the Claimant been afforded one. The Claimant would have continued to deny that he kicked B. Her submission appeared to be to the effect that so long as that remained his stance, his appeal could not have succeeded because it was inevitable, given his report at the time, that it would be found that he did kick B. In so submitting, it was, however, evident that she had not considered whether there was any possibility of an appeal body being satisfied that even if there was a kick in the course of the incident, the Claimant did not intend to harm B and would, accordingly, not find that he had assaulted B. On discussion of these matters, her submission came to be that it was apparent that he had ‘very little chance’ of success on appeal.

[23]Ms Stark submitted that there was no place for mitigation. Her reason for that was, again, that the Claimant maintained that he had not kicked B. Her submission did not, however, allow for any points being put in mitigation such as prior and immediate provocation, the fact that B refused to make a complaint to the police, the Claimant’s long history of employment, that this was a momentary lapse, his personal circumstances or any of the other factors that might commonly be relied on to seek to persuade an employer not to impose the sanction of dismissal.

[24]As to contribution, Ms Stark submitted that the Claimant was wholly to blame and the 100% reduction was justified. Whilst she initially sought to suggest that it was to be inferred that the Tribunal took the same view as regards the basic award she ultimately seemed to accept that it had to be concluded that they had failed to deal with it. Discussion and Decision

[25]We are satisfied that the Tribunal fell into error in three respects:(a) in their assessment of the Polkey reduction;

(b) in their assessment of contribution and

[26]Regarding Polkey , the Tribunal required to consider all the relevant facts and circumstances when determining what were the chances of the Claimant being dismissed if there had been no procedural unfairness. They took into account the Respondent’s failure to allow the Claimant an appeal but they did not take into account their failure to complete the disciplinary hearing. There was no opportunity for the Claimant to put his full case including, as we have already observed, anything he had to say not only on the issue of whether he had assaulted (i.e. intentionally harmed) B but also on matters relevant to sanction such as provocation – which was plainly an issue – the attitude of B to what had happened and the Claimant’s personal circumstances, which included his long service. The result was that whatever report of the disciplinary hearing was put before the full Board, it was, by definition, incomplete. In circumstances where members of the decision making body had not themselves been present at the disciplinary hearing and were thus relying on others to provide them with a full picture that seems particularly unfortunate.

[27]Further, although the Tribunal took account of the failure to allow the Claimant an appeal, when asking themselves what would have happened, they appear to have confined their considerations to the issue of whether or not it would have been found that the Claimant kicked B. They then seem to assume that dismissal would, of necessity, have followed. They required, however, to consider whether, even if it had been found that the Claimant had kicked B, there was a chance of any sanction other than dismissal – a question the answer to which could only be arrived at after taking into account all the relevant circumstances which included the matters to which we have already referred.

[28]In these circumstances, we consider that the appeal against the 100% Polkey reduction is well founded; the Tribunal reached their conclusion without having regard to all the relevant factors.

[29]Similar considerations apply when it comes to the matter of contributory conduct. The Tribunal have considered only one issue namely that of whether or not it would have been established that the Claimant kicked B. Again, before reaching a view on what reduction, if any, to make to compensation by reason that any dismissal would have been caused or contributed to by the Claimant’s conduct (1996 Act s.123(6)), they required to consider all the circumstances but they failed to do so.

[30]Turning then to the matter of a basic award, the Tribunal appear to have wholly overlooked the need to consider it. Under s.119 of the 1996 Act , the Claimant was prima facie entitled to a basic award; given his length of service and his salary (£1500 net per month according to his ET1) , the amount of any such award would, potentially, have been of some substance. It could, of course, be reduced if the Tribunal was satisfied that any conduct prior to the dismissal was such that it would be just and equitable to do so (s.122(2)). However, the Tribunal required specifically to consider the issue and determine it. They failed to do so. Disposal

[31]In all the circumstances there will require to be a remit for the Employment Tribunal to consider of new the Polkey issue, the issue of whether or not any compensation falls to be reduced on account of the Claimant’s contributory conduct and the issue of whether or not the Claimant is entitled to any sum in respect of a basic award.