John Loughborough School & Anor v Alexis (Unfair Dismissal : Reason for dismissal including substantial other) [2011] UKEAT 0583_10_1612

EAT
John Loughborough School & Anor v Alexis (Unfair Dismissal : Reason for dismissal including substantial other)
[2011] UKEAT 0583_10_1612 · 2011-12-16
[1]This is an appeal against the decision of an Employment Tribunal sitting at the East London Hearing Centre, chaired by Employment Judge Goodrich, upholding the Claimant’s claim of unfair dismissal. The Tribunal sat for ten days in May and June 2010. The Judgment and Reasons were sent to the parties on 6 September. 2. The Appellants were represented before us by Mr Oliver Hyams of counsel, who also appeared before the Tribunal. The Claimant, the Respondent to the appeal, was represented by Mr Lincoln Crawford of counsel: before the Tribunal she was represented by a friend, Dr Davidson. 3. For the purpose of understanding the issues, we need at this stage to set out the facts only in outline form. 4. In September 2005 the Claimant was appointed Head Teacher of the John Loughborough School, to which we will refer as “the School”. The School was founded in 1979 as an independent secondary school on the initiative of members of the Seventh-Day Adventist Church, but in 1999 it came into the state sector as a voluntary aided faith school. The staff of the School are employed by the Board of Governors (“the Governors”), who are in law a corporate body, and who are the First Appellants before us. The responsible Council is the London Borough of Haringey (“the Council”), which is the Second Appellant. At all material times the Director of Children and Young Persons Services for the Council was Ms Sharon Shoesmith. The Deputy Director of School Standards was Dr Janet Karklins. 5. Prior to the Claimant’s appointment the School had been performing badly. She faced a number of difficulties on appointment. Views differed about whether she had the right experience for the role and about her performance in the first year (though it is fair to record that no-one has ever questioned her hard work or dedication). Ms Shoesmith at a fairly early stage formed the view that the Claimant was not up to the job. From late 2006 until October 2007 she put strong pressure on her to step down and on the Governors to encourage her to do so. We need not give details, but it is clear from the Tribunal’s findings that the issue became very contentious. The Tribunal believed that the kind of informal pressure which was put on the Claimant over this period was unfair and indeed that she was justified in feeling that she was being bullied. On 18 October 2007 the Governors at a meeting refused to take steps to terminate her employment. 6. At the beginning of 2008 the Council, with the approval of the Secretary of State, decided to exercise its powers under Schedule 6 of the Education and Inspections Act 2006 to replace the existing Governors with a “governing body consisting of interim executive members”: by para (2) of the Schedule a governing body so constituted is described as an “Interim Executive Board” (“IEB”). An IEB, despite the difference in nomenclature, is in law during the period of its appointment the governing body of the school and accordingly exercises all the powers of the governors. The Chair was Pastor Sam Davis. 7. At its first meeting, on 6 February 2008, the IEB considered the report of two OFSTED inspectors which was critical of the senior leadership team at the School and resolved “to seek the removal and replacement of the school’s Leadership Team” (which of course included the Claimant). Ms Shoesmith and Pastor Davis renewed their pressure on the Claimant to leave voluntarily, but she declined to do so. On 21 February 2008 Dr Karklins told her that formal capability proceedings would be commenced against her on 25 February and asked her to attend a meeting at her office on that day. The Council had been advised that a fair decision to dismiss the Claimant on capability grounds could not be taken in less than six months. 8. The intervention of the Council in these ways was strongly resented by some staff members, parents and members of the wider Seventh-Day Adventist Church community, who came together under the name of “the Friends and Founders of the JLS”. On the morning of 25 February, which was a Monday, they staged a demonstration at the School. Many of the demonstrators came onto the school premises. A BBC reporter and camera crew followed them in. The protest lasted several hours and seriously disrupted the work of the School. It was, however, entirely peaceful and although the police were called they declined to take any action because they formed the view that all was quiet and they did not want to act provocatively. No official register was taken of the people who entered the School as part of the demonstration. Although the demonstration was at least partly in her support, and the Tribunal found that she knew about it beforehand, there is no suggestion that the Claimant was directly associated with it. She in fact had to leave the School shortly after it started, in order to attend her meeting with Dr Karklins (see paragraph 7 above), but protesters had already entered the school premises before she left and were still there when she got back. 9. Pastor Davis was very concerned about the demonstration and by the fact that, as he saw it, no effective steps had been taken to prevent the protesters from entering the school or to deal with the situation once they did. The following day, 26 February, the Claimant was suspended. On 27 February Pastor Davis wrote to her confirming that there would be an investigation into possible misconduct by her in relation to her handling of the demonstration. 10. There was another demonstration on 27 February 2008, during which protesters again came onto the premises and there was significant disruption to the work of the School. The Appellant was of course not at work on that day in consequence of her suspension. 11. A further meeting of the IEB took place on 11 March 2008. Pastor Davis formally reported the Claimant’s suspension, which was approved. It was also resolved “that a formal request be made to the Local Authority to advise the IEB on the way in which instructions to seek to remove the [senior leadership team] of the school should be carried out”. 12. A disciplinary investigation was carried out by a Mrs Anslow. In due course she recommended the bringing of disciplinary charges against the Claimant for “gross dereliction of duty” in two respects, defined as follows:
“1. A demonstration took place on Monday 25 February on school premises without proper risk assessments being undertaken as they related to visitors and staff and pupils at the school. 2. You did not challenge the presence of the media at the school and the taking of photographs and film of school pupils without the expressed permission of their parents.”
We will refer to “the events of 25 February” as a shorthand for those charges. The reference to “risk assessments” was, as Mr Hyams accepted, an unhelpful piece of management-speak. The gist of the charges against the Claimant under head (1) was not concerned with formal paperwork: rather it was that, knowing that the demonstration was planned and (on the day) that it had in fact started and that protesters had invaded the School before she left and were still there when she returned, she neither planned nor took any steps to secure the School or to mitigate the consequent disruption and potential risk to students.[13]There was a disciplinary hearing over three days in September and October 2008. The panel (to which we will refer as “the disciplinary panel”) consisted of three IEB members, chaired by Mrs Jean Brown, who was a senior and experienced former teacher, teacher trainer and educational administrator. The Claimant was represented by Dr Davidson; a trade union representative also accompanied her. Dr Davidson objected to the fact that the disciplinary panel comprised members of the IEB, given their previous decision to seek the termination of the Claimant’s employment; but the objection was not accepted.[14]At the conclusion of the hearing the decision was announced that the Claimant should be summarily dismissed. That decision was formally confirmed to her by a letter from Mrs Brown dated 27 October 2008. The material parts of the letter read as follows: “In reaching this decision the following outlined main issues were considered: Most of the facts of the case were stated, on more than one occasion to the panel by your side and management side, as being clear but the panel took note of the fact that, in relation to certain aspects, for example the sequence and timings of events, there were conflicts in the evidence provided. The panel noted that much reference had been made in your case to the impact “disaffected” staff, had had on you in your role as the Headteacher and that there had been differences in recall in terms of the quality and details from that group of staff to those who were “for” you. The panel noted that the PTA protest planned for 25 th February 2008 had been discussed at various meetings within the school and that there was knowledge of the protest within the church. The panel also noted that you were present at the Shadow Board of Governors meeting on 21 February 2008 where reference was also made to the protest. Therefore, on the balance of probability the panel believe that you were aware of the planned protest before the protest took place on 25 th February 2008. On Monday 25 th February, the photographic evidence, provided by yourself on the third day of the hearing, showed that the protest was underway when you left the school at approximately 8.40am, and that you drove through it and right past it. You nevertheless left the school without securing the premises or the health, safety and protection of pupils and staff. You failed, prior to and during, your meeting with Dr Karklins or when you returned, to take any decisive action that would have led to or effected the dispersal of the protestors from school premises. You told the panel that you were too preoccupied with the thoughts of the impending meeting with Dr Janette Karklins, Deputy Director of the Children and Young People’s Service of Haringey Council, to notice any banners, placards or adult visitors in florescent jackets as you departed. You also told the panel that you had asked pupils to go back to their classes when you came back from your meeting. But other evidence indicated to the panel that you did not check where pupils were when you returned. You allowed some pupils to remain in the playground and to take part in the protest on the basis that they had had their parents permission without checking that this was infact the case. The protest continued for some hours. A risk assessment would have indicated that urgent action was imperative. This omission is considered by the Panel to be gross dereliction of your duty of leadership care in respect of staff and children. In relation to the second part of the allegation that you did not challenge the presence of the media and the taking of photographs and film of school pupils without the expressed permission of their parents, the Panel did not hear or receive sufficient evidence to support this allegation and therefore there is no case to answer. Having taken into account Section D1.3 and the Code of Conduct in Annex 2 of the Schools Personnel Procedure, adopted by the John Loughborough School, the Panel have concluded that the allegation, as proven, amounts to gross misconduct. The Panel are satisfied that there has been appropriate application of the Discipline Procedures and that there have been no procedural or statutory breaches. In response to the mitigating evidence put forward, the Panel do not feel that the pupils were wilfully put at risk, but that they were nevertheless, put at risk, and this is not acceptable: There were no records of who the adult visitors on the premises were or where they were on the premises, during 25 February. In addition, the Panel were not satisfied that you had taken account of where exactly all pupils were on the premises, after your return from the Local Authority meeting. The Panel acknowledges your commitment to the pupils of the John Loughborough School and that you care deeply about them. Your dedication is apparent. But with regard to matters on 25 February, the Panel was of the view that you did not fulfil your responsibilities as the Headteacher.” (The various errors of punctuation and spelling in the letter reflect the original: we have not thought it right to try to tidy it up.)[15]The Claimant appealed. Her appeal was heard over two days in January and March 2009 by a panel (“the appeal panel”) consisting of Mr Reg Rice, an IEB member, and two other members who were not on the IEB. Dr Davidson again objected to the composition of the panel.[16]The appeal panel’s decision, upholding the decision of the disciplinary panel, was communicated to the Claimant by letter dated 18 March, the material parts of which read as follows:
“The appeal panel decision is that the finding of the disciplinary panel that: - “A demonstration took place on Monday 25 February on school premises without proper risk assessments being undertaken as they related to visitors and staff and pupils at the school” is proven, and that the disciplinary panel’s decision to dismiss you is upheld. The appeal is therefore dismissed. In coming to the decision, the panel considered all the evidence and concluded on the balance of probability, that you were aware of the plans to hold the demonstration at the school on 25 February 2008 and took no action, either to stop the demonstration or to make sure that the pupils were safe in all the circumstances. The panel recognises the implications of making such a decision, but nevertheless considers the allegation serious enough to warrant this sanction. The panel came to this decision after the most careful consideration of every thing put to it including submissions.”
THE TRIBUNAL’S REASONS[17]The structure of the Tribunal’s Reasons can be summarised as follows.[18]Paragraphs 1-15 are introductory. At paragraphs 16-34 the Tribunal summarises the relevant law in terms which are unexceptionable. We should note, however, that it refers to, and cites a passage from, the decision of this Tribunal (Elias P presiding) in ASLEF v Brady [2006] IRLR 576 . That case decides that, even where an employee has committed misconduct which is capable of justifying dismissal, the dismissal may nevertheless be unfair if he or she has in fact been dismissed for a different reason and the misconduct is “opportunistically” used as a pretext for dismissal: we return to the reasoning in more detail below. At paragraphs 35-37 the Tribunal identifies the witnesses from whom it heard evidence and the documents referred to.[19]At paragraphs 38-119 the Tribunal sets out its findings of fact. These are carefully structured and clearly the product of a lot of thought. At certain key points in the narrative the Tribunal pauses to comment on the evidence or findings. There are two such passages which we need to set out, as follows: (1) Paragraph 109 reads:
“The Tribunal has, nevertheless, concerns about the quality of some of the evidence of Mrs Brown, the Chair of the disciplinary panel. This has caused us to have concerns about the panel’s motivation in dismissing the Claimant. Our concerns are as follows: - 109.1 We stress that Mrs Brown appeared to us to be an honourable individual, who has both worked in the public sector, including in teaching, and been a Councillor performing public service for many years. 109.2 Her witness statement was completely disingenuous in one important respect. She referred, in paragraph 6 of her statement, to not knowing Dr Alexis, Dr Davidson or any member of the school staff, or anyone involved, apart from Ms McInnis, and so coming to the hearing with no pre-conceived ideas. She made no mention of her presence at the IEB when passing a resolution on 6 February 2008 to remove the Claimant as Head teacher and the senior leadership team; and her reiteration of this at the meeting on 11 March 2008 when the IEB approved the seeking of advice as to how best to remove these individuals. Instead, therefore, of “coming clean” in her witness statement from the outset, the information was extracted from her in her oral evidence at the Tribunal hearing. This concerned us. 109.3 When examined in-chief she stated, initially, that the disciplinary panel did not make a final judgment on whether the Claimant knew in advance that a protest was being planned. Later in examination-in-chief she gave the appearance of having realised that she had “gone off script” both in examination-in-chief and cross examination, she gave evidence that she did believe that the Claimant knew of the protest in advance of 25 February. 109.4 Although the disciplinary charge of failure to conduct risk assessments was upheld by the disciplinary panel and formed part of the reason that the Claimant was to be dismissed, at no stage of the disciplinary hearing was she asked, so far as the Tribunal was made aware, what training she had in conducting risk assessments; nor were there questions and discussion on what that risk assessment should have been. 109.5 She gave evidence that she had been advised that a risk assessment did not have to be a written assessment. In other words the Claimant had failed to carry out an unwritten risk assessment on the day and could be disciplined for this. This reasoning appeared strange, almost absurd. If a risk assessment could be unwritten and take place on 25 February, the Claimant evidently could have conducted such a risk assessment and concluded that there was no risk, as was her evidence at this Tribunal. In this, she was correct, as no harm came to anyone, other than the pupils having their schooling disrupted. This strengthened the impression given to us by her evidence that she was looking to see whether the disciplinary charges were strong enough to justify dismissing the Claimant, in order not to have to undergo the processes necessary to give effect to the decision the IEB had already made before the events of 25 February to remove the Claimant as Head Teacher. 109.6 More generally, Mrs Brown gave lengthy answers and failed to answer the questions at times (as at times did the Claimant when she was cross examined). 109.7 The overall impression given by her evidence was of a lack of transparency as to her true motivation.” (2) Paragraph 119, being the final paragraph in this section, reads: “From all the evidence we have heard, what was the panel that dismissed the Claimant’s motivation in dismissing her? Our findings are as follows: - 119.1 Before the events that took place on 25 February, they had already decided that she had to be removed as Head Teacher. All three had been members of the IEB that, earlier in February, had unanimously decided that she and the School’s senior management team should be removed. They had accepted the advice of Ms Shoesmith to that effect. Ms Shoesmith’s view that the Claimant should be removed was, as we have described above, a long standing view. The basis for that view was that Ms Shoesmith and, on her advice, the IEB, did not believe that she was equipped to lead the school in making the necessary improvements. They did not feel that she was “up to the job”. 119.2 Even before the disciplinary hearing, but after the events of 25 February, they had confirmed that the Claimant should be removed, in another meeting of the IEB on 11 March 2008. On neither occasion was the resolution that disciplinary action be commenced the resolution was that she be removed. 119.3 There was, therefore, a strong predisposition on the panel’s part for the Claimant to be dismissed for the events on 25 February. We do not accept or believe the evidence we heard that there was a genuine detachment or open mindedness on the panel’s part from their previous decisions at the meetings of the IEB that the Claimant should be removed. 119.4 The panel came to the view, from the advice that they received, including the advice to which we have referred above about risk assessments, that it would be a valid decision to dismiss her for the event of 25 February. This explains the blinkered view they took in failing to give consideration to the context of how the events of 25 February had arisen. The Claimant’s recital of how badly she been treated in Ms Shoesmith and others determination to remove her was ignored. If they had felt, on advice, that the events of 25 February did not justify dismissal, they would have not dismissed her for that reason and have proceeded instead down the route agreed to by the IEB on 11 February in order to secure her removal, whether by agreement or disciplinary proceedings. Any such disciplinary action would have been highly unlikely to have been done in order to give her an opportunity, with appropriate support, to improve, as the decision had already been reached to remove her it is very difficult to envisage a fair or genuine capability procedure being conducted in these circumstances.”
[20]Paragraph 120 incorporates by reference the written closing submissions of both parties.[21]Paragraphs 121-141 set out the Tribunal’s conclusions. The paragraphs concerned with liability are 121-137. The reasoning is elaborate and needs to be carefully examined. We analyse it as follows.[22]Paragraph 121 simply records that there is no issue that the procedural requirements of the dispute resolution regime then in force had been complied with.[23]Paragraph 122 records, correctly, that the first question for the Tribunal is what was the reason, or principal reason, for the Claimant’s dismissal. The Tribunal expressly reminds itself of “the guidance … in … ASLEF v Brady ”. It then proceeds to consider that question at paragraphs 123-126. These read as follows: 123. What is telling about the resolution of the IEB on 6 February 2008 was that it was a resolution to dismiss the Claimant, not a resolution to commence disciplinary action on grounds of capability. Even before the events of 25 February all the individuals who were the members of the panel that decided to dismiss the Claimant had decided, along with the other members of the IEB, to remove her as Head Teacher, and also made a decision to do so at the meeting of the IEB on 11 March 2008, before the disciplinary hearing took place. Mr Rice, the chair of the appeal panel was, likewise, a member of the IEB. 124. In this case therefore, the panel of the IEB that considered the disciplinary hearing had, as recorded in our findings of fact, a predisposition to dismiss the Claimant. Even if they had decided that the events of 25 February were insufficient to warrant dismissal, they were determined that the Claimant would be removed as Head Teacher. The events of 25 February 2008 were, therefore, a pretext for a decision to remove the Claimant that had been made before 25 February. It allowed them to dismiss the Claimant without needing to follow the processes that would have been required to implement the resolutions of the IEB on 6 February and 11 March 2008. It was easier to do this than to commence capability proceedings, in view of Ms Tona’s earlier advice to Ms Shoesmith that the instigation of capability procedures would be likely to take 6 months before being able to dismiss the Claimant. For this reason alone, the dismissal of the Claimant was unfair, whether the reason or principal reason was conduct, or capability, or neither of these. A reasonable employer acting within the range of reasonable responses would not have used the events of 25 February as a pretext for dismissing the Claimant. 125. The Respondent’s case was that the reason for the Claimant’s dismissal was conduct, but alternatively that it was capability. What was the reason for the panel that was chaired by Mrs Brown’s predetermined view that the Claimant must be removed as Head Teacher and what was the reason or principal reason for the Claimant’s dismissal? 126. We have concluded that the reason or principal reason for the Claimant’s dismissal was capability including because: -126.1 The reason for the IEB’s resolutions to remove the Claimant as Head Teacher at their meetings on 11 February and 11 March 2008 was that they did not believe (on advice from Ms Shoesmith) that she had the necessary capability to perform the job required of her. There was no suggestion that she was not working hard or trying her best to improve the School.126.2 The procedures that Dr Karklins informed the Claimant were being investigated, when they met on 25 February 2008 on the day of the demonstration were stated to be on the grounds of capability.126.3 At the end of the disciplinary hearing, when Mrs Brown informed the Claimant that she was to be dismissed, and in this Tribunal hearing, Mrs Brown stated that she did not believe that the Claimant’s actions had been wilful. She had made errors of judgment, in Mrs Brown’s view, rather than deliberately causing or exacerbating what she felt to be the chaotic events of that day.126.4 We have concluded, therefore, that capability was the reason or principal reason for the Claimant’s dismissal. The events of 25 February 2008 were a confirmation of Mrs Brown (and by implication the panel’s, although the other panel members were not witnesses) already held view that the Claimant was not capable of making the necessary improvements in the School and Dr Karklins informing the Claimant on 25 February 2008 that capability procedures were being commenced against her.”[24]There are some obscurities about the reasoning in those paragraphs. We have the following observations:(1) Paragraph 124 contains an explicit finding that the reason given by the disciplinary panel for the Claimant’s dismissal – namely her inadequate response to the events of 25 February – was a “pretext”. What that ought to mean, simply as a matter of English, is that the reason given was not the real reason (or at least the principal real reason); and it seems quite clear, reading paragraphs 123 and 124 together, that the Tribunal intended to find that the real reason (or principal real reason) for the Claimant’s dismissal was the IEB’s pre-existing view (reflecting the view of Ms Shoesmith and Dr Karklins) that the Claimant was not up to the job. It does not, however, say so in so many words, and it is possible that its reasoning may have been rather more complicated: see (3) below.(2) We will consider in due course whether the reasons given for that finding, if such a finding was indeed intended, are sustainable. But if it was a conclusion to which the Tribunal was entitled to come it was conclusive of the issue of liability. The purist view would be that, since the only reason for the dismissal which the School had sought to prove had been rejected, it had not discharged the burden under section 98 (1) of the Employment Rights Act 1996 and the Tribunal was bound to find the dismissal unfair, even if it had – unnecessarily – made a finding that the School had a different reason which potentially justified the dismissal (an “admissible” reason). We think that that view is correct; but even if it is too strict, and the School was entitled to rely on the different reason found by the Tribunal (namely the IEB’s views of the Claimant’s competence), any dismissal for that reason was bound to be unfair because the dismissal process had not been directed to that question. Either way, the Tribunal’s (apparent) finding was decisive of the issue of fairness. It seems from the last two sentences of paragraph 124 that the Tribunal recognised that that was so (though the references to “conduct” and “capability” and the range of reasonable responses may not be quite on target).(3) That being so, the purpose of paragraphs 125-126 is not entirely clear. The question posed at the end of paragraph 125 in fact rolls up two questions, the second of which – “what was the … principal reason for the Claimant’s dismissal ?” – had apparently already been answered in the previous paragraph. As we read it, the Tribunal appears to have believed that its answer to that question was not sufficient in law and that its ultimate decision had to be couched in terms of whether the dismissal was for “conduct” or “capability” (being, of course, two of the categories of admissible reasons for dismissal listed in section 98 (2)): the sub-paragraphs of paragraph 126 are essentially directed to that question of characterisation. If so, we do not, with respect, agree that this was the central question. The essential first step in considering an unfair dismissal claim is to identify, as a matter of fact, what the reason for the dismissal was. As long as the reason thus established falls within one (or more) of the statutory categories, it does not (usually) matter which label applies: see Abernethy v Mott, Hay and Anderson [1974] ICR 323, per Lord Denning MR at p. 329E. If, as we think, that is the exercise being performed in paragraph 126, it does not add much to the Tribunal’s findings on the factual reason for the dismissal - though paragraph 126.4 does add a little more. Either way, however, whether one looks simply at paragraph 124 or feeds in also the conclusions in paragraph 126, the Tribunal plainly intended to find that the principal reason for the Claimant’s dismissal was not the events of 25 February but the IEB’s pre-existing decision that she was not up to the job of Head Teacher.[25]At the start of paragraph 127 the Tribunal observes that the question of what the principal reason for the dismissal was “is, however, somewhat academic”, because the dismissal was in any event unfair – that is, that it was not reasonable for the School to dismiss the Claimant, applying the criteria in section 98 (4) of the Act. It gives its core reason, or reasons, for that finding in paragraph 127 itself, but it adds a number of supplemental reasons at paragraphs 129-133, which are described in paragraph 134 as “additional reasons [why] the Claimant’s dismissal on the grounds of capability was outside the range of reasonable responses of a reasonable employer and unfair within the meaning of section 98 (4)”. We take those paragraphs in turn.[26]The essential part of paragraph 127 reads as follows:
“A reasonable employer acting within the range of reasonable responses would not enter into a disciplinary hearing in a case such as the Claimant’s with a strong predisposition to dismiss her for the events of 25 February and use this as a pretext for doing so; and would not have reached a decision that they be removed from their post without capability procedures ever having been instigated, as we have already stated. It is difficult for a panel to be viewed as impartial by an employee when they have already decided to remove that individual from their job before the disciplinary hearing.”
The way in which that passage is expressed is not perhaps as clear as it could be. Among other things, the reference to “the range of reasonable responses” is rather out of place in this context. But the Tribunal appears to be making three points: (1) It was unfair that the members of the disciplinary panel should have approached the hearing with, as it had already found at paragraph 119.3, a strong predisposition to dismiss the Claimant. This is essentially a point about pre-judgment. As it had found in that paragraph, the panel was not genuinely detached or open-minded. Thus, even if the events of 25 February were indeed the “principal reason” for the dismissal, the panel’s conclusions about those events were tainted. (2) Even if (contrary to that finding) the panel was in fact impartial, the Claimant could not be expected to have confidence that that was so: this is the point made in the final sentence. (3) If the true reason for the Claimant’s dismissal was the panel’s view about her capability it cannot be fair to have dismissed her after a process directed at an entirely different issue, namely the events of 25 February. That is of course the point which we have already made at paragraph 24 (2) above.[27]It is not necessary to summarise in detail the additional reasons in paragraph 129-133 of the Reasons. On analysis, they are more by way of commentary than substantive grounds of unfairness. The essential point made is that it was wrong and insensitive of Ms Shoesmith to continue to apply pressure to the Claimant to leave when it was clear that she did not wish to do so: once that became clear the only proper course was to go through the formal capability procedures.[28]At paragraph 135 the Tribunal addresses a further fallback question. It holds that “even … if we had decided that conduct was the reason or principal reason for the Claimant’s dismissal” – that is, as we understand it, if the principal reason had been the events of 25 February – the dismissal would still have been unfair. This is said to be both for “the reasons we have outlined above” - which must, we think, be those which we have summarised at paragraph 26 above – and for a number of additional reasons set out in nine numbered sub-paragraphs. We will not summarise those here, but we should note one point. Applying the “ Burchell test”, the Tribunal found, at paragraph 135.5, that:
“… Mrs Brown did have a genuine belief in the misconduct, in that she believed that the Claimant’s actions on 25 February amounted to a dereliction of duty and fell short of the standards required from her.”
But it went on to conclude that there were no reasonable grounds for that belief and that the panel had not conducted a sufficient investigation.[29]Finally, the Tribunal indicated its “provisional view” on the question of contributory fault, namely that any reduction on that account should be “very small and no more than 25%” (paragraph 141). It does not spell out why any such reduction might be justified; but it does find that the Claimant knew about the demonstration of 25 February beforehand, and the necessary implication is that it believed that it was at least arguable that she should have done more than she did to try to mitigate the disruption, whether beforehand or on the day itself. THE APPEAL 30. We start by considering the Tribunal’s conclusion that the events of 25 February were a “pretext” and that the real reason (or real principal reason) for the Claimant’s dismissal was the IEB’s prior decision that her employment should be terminated because she was not up to the job.[31]It is trite law that, for the purpose of section 98 of the 1996 Act, the reason for an employee’s dismissal consists of the considerations operating on the employer’s mind – the “set of facts known to [him], or maybe of beliefs held by him”, as it was put by Cairns LJ in Abernethy (above), at p. 330 B-C - which cause him to dismiss. Normally, establishing that reason is straightforward, but in a case of “mixed motives” (“mixed motivations” might perhaps be a better phrase) it can be problematic: where more than one consideration was operating, deciding which was the principal one may not be easy. The difficulty in the present case is that the members of the disciplinary panel had already been parties to a decision to seek the termination of the Claimant’s employment, by dismissal on capability grounds if she would not agree to leave voluntarily, at a time when the events which were the ostensible grounds for dismissal occurred. That was, inevitably, part of what was going on inside their heads at the time that the dismissal decision was taken; but did it mean that the ostensible grounds were a pretext ?[32]Guidance as to the correct approach in such cases is given, as the Tribunal recognised, in ASLEF v Brady . In that case the employers were already keen to dismiss the claimant, on grounds of personal and political hostility, when he committed the act of misconduct which was the ostensible reason for his dismissal. (They had not, as in the present case, made an explicit prior decision to seek the termination of his employment; but that by itself is not a fundamental distinction.) The employment tribunal found that the principal reason for the dismissal was not the misconduct but the decision-makers’ previous desire to see him go. This Tribunal upheld that finding, but what is important for present purposes is the discussion as to the correct approach in principle. As to that, Elias P. said this (at p. 584):
“ Does a finding of opportunism necessarily exclude a fair reason ? 77. Mr Hendy submitted that the fact that the tribunal found that the union was determined to dismiss the general secretary and that it had acted opportunistically did not preclude the true reason being that identified by the union itself. He says that there is nothing intrinsically inconsistent with an employer taking an opportunity to discipline someone of whom they are delighted to be rid, whilst at the same time taking that decision properly and in accordance with the rules. He submits that the tribunal here failed to appreciate that possibility. It treated opportunism and having a legitimate reason for dismissal as though they were mutually inconsistent, whereas he submits that they may sit comfortably together. Moreover, the tribunal did not expressly find that the union had acted in bad faith or dishonestly, or that the allegations themselves were trumped up. The fact that the union seized upon the acts of misconduct with some alacrity did not demonstrate that they did not also genuinely believe that Mr Brady was guilty of the offences for which he was charged. 78. We would agree that in principle there is indeed a difference between a reason for the dismissal and the enthusiasm with which the employer adopts that reason. (Mr Hendy in fact drew a distinction between reason and motive, but we do not think that the analysis in this case is assisted by referring to the elusive concept of motive.) An employer may have a good reason for dismissing whilst welcoming the opportunity to dismiss which that reason affords. For example, it may be that someone perceived by management to be a difficult union official is perfectly properly dismissed for drunkenness. The fact that the employers are glad to see the back of him does not render the dismissal unfair. What causes the dismissal is still the misconduct; but for that, the employee would not have been dismissed. 79. It does not follow, however, that whenever there is misconduct which could justify the dismissal a tribunal is bound to find that this is indeed the operative reason. The Thomson case [ Times Corporation v Thomson [1981] IRLR 522] shows that even a potentially fair reason may be the pretext for a dismissal for other reasons. To take an obvious example, if the employer makes the misconduct an excuse to dismiss an employee in circumstances where he would not have treated others in a similar way, then in our view the reason for dismissal - the operative cause – will not be the misconduct at all. On this analysis, that is not what has brought about the dismissal. The reason why the employer then dismisses is not the misconduct itself. Even if that in fact merited dismissal, if the employee is treated differently to the way others would have been treated, being dismissed when they would not have been, then in our judgment a tribunal would be fully entitled to conclude that the misconduct is not the true reason or cause of the dismissal. The true reason is then the antipathy which the employer displays towards the employee. 80. But it is not only where there is evidence that the employee has been treated differently to the way others would be treated that a finding of unfairness can be made. As we have said, once the employee has put in issue with proper evidence a basis for contending that the employer has dismissed out of pique or antagonism, it is for the employer to rebut this by showing that the principal reason is a statutory reason. If the tribunal is left in doubt, he will not have done so. Evidence that others would not have been dismissed in similar circumstances would be powerful evidence against the employer, but it is open to the tribunal to find the dismissal unfair even in the absence of such strong evidence. In a case of mixed motives such as malice and misconduct, the principal reason may be malice even although the misconduct would have justified the dismissal had it been the principal reason.”
[33]It is clear from that passage that the fact that the employer has a prior reason for wishing to dismiss an employee (what the Tribunal in the present case calls a “predisposition”) does not by itself mean that, if the employee does something which may constitute a different ground for dismissal – say, as in Brady , commits an act of misconduct – the misconduct may not be the reason, or principal reason, for a subsequent dismissal. Whether it is or is not is a question of fact. That is what Elias P. says in, in particular, paras. 78 and 80 of his judgment, where he says that the fact that the employer welcomes, for other reasons, the opportunity to dismiss the employee for misconduct, does not mean that the misconduct was not the reason for the dismissal which occurred. (In this connection we would note that the observation at the end of para. 78 that the employee would not have been dismissed but for the misconduct means that he would not have been dismissed when he was .)[34]The approach expounded by Elias P. in the passage which we have quoted seems to us plainly right in law. Indeed if it were otherwise the position of an employer where a previously seriously under-performing employee commits an act of serious misconduct would be impossible. Deciding, as a matter of fact, what the principal reason for dismissal was in such a case may not always be an easy question to answer, but it is no more difficult than the decisions which Tribunals often have to make in discrimination cases; and, as noted by Elias P. at para. 80 in Brady , the burden of proof is on the employer.[35]The Tribunal, as we have seen, purported to conclude at paragraph 124 that the principal reason for the Claimant’s dismissal was the decision already formed by the panel members that she should go because she was not up to the job. But Mr Hyams submitted that that conclusion was inconsistent with its own findings of primary fact. He pointed to the finding at paragraph 109.5 that Mrs Brown (who seems to have been treated, unobjectionably, as giving evidence for the panel as a whole: see paragraph 126.4) “was looking to see whether the disciplinary charges were strong enough to justify dismissing the Claimant in order not to have to [go through a long drawn-out capability process]”; and, crucially, the finding at paragraph 119.4 that “if [the panel] had felt that … the events of 25 February did not justify dismissal they could not have dismissed her for that reason and [would] have proceeded down [the capability procedure] route”. Those points were picked up in the second sentence of paragraph 124, which implicitly accept that the panel were prepared not to dismiss the Claimant if “the events of 25 February were insufficient to warrant dismissal”. Mr Hyams also referred to the finding about Mrs Brown’s belief in the Claimant’s misconduct set out at paragraph 28 above. Those findings showed, he submitted, that the events of 25 February were indeed the true reason for the dismissal. Applying the approach in ASLEF v Brady , the fact that the panel may have had a “predisposition” to dismiss for a different reason made no difference if, as the Tribunal’s findings necessarily entailed, the panel members had deliberately, and conscientiously, focused on the events of 25 February. Mr Hyams submitted that the explanation for the apparent inconsistency in its findings is that the Tribunal had not in truth approached the issue as one of fact. He drew attention to the wording of paragraph 124. The Tribunal, having referred to the panel’s “predisposition” to dismiss the Claimant, concluded (in the third sentence) that the events of 25 February were “therefore” a pretext. That, he submitted, was a non sequitur .[36]There is some force in that submission. The findings relied on by Mr Hyams do at first sight appear hard to reconcile with the Tribunal’s conclusion in paragraphs 123-126. But in the end we do not believe that there is a real inconsistency. We do not think that the Tribunal meant to find that the members of the panel, while certainly welcoming the opportunity to dismiss the Claimant for other reasons, conscientiously put those considerations out of their minds (or at least to the back of their minds) and tried decide simply whether she should be dismissed for misconduct. We think that it intended to make a rather more subtle finding about their mindset, namely that they went into the process determined – because of their “predisposition” – to use it in order to achieve the Claimant’s dismissal if that were possible, but acknowledging that if they were advised that dismissal was not within the range of reasonable options on the facts as proved they would have to go the long way round after all. That is much more consistent with the message of the findings in paragraphs 109 and 119 read as a whole (NB in particular paragraphs 109.7 and 119.3), with paragraph 126.4, and with the overall finding that the events of 25 February were a “pretext” for dismissal. It also explains the phrase “on advice” in paragraph 119.4.[37]If that was indeed the thinking of the members of the panel, it seems to us that the Tribunal was entitled to find that the principal reason for the Claimant’s dismissal was the panel’s pre-existing view that she was not up to the job. The fact that they would not have dismissed her if they were advised that the events of 25 February could not justify dismissal does not necessarily mean that those events were the principal reason for the dismissal: it would no doubt be a cause of the dismissal in the “but for” sense, but the Tribunal was obliged to take a broader view. What it had to do, given that both factors were operative, was to decide which was the “principal” one. That is not an easy question, conceptually or perhaps factually, but it is a question of fact and judgment: the Tribunal directed itself by reference to the correct authority, and we see no basis on which we can interfere with its decision.[38]There remains the question of the “therefore” in paragraph 124 of the Reasons. We do not think that, whatever the strict logical analysis, it is fair to read the use of that word as meaning that the Tribunal believed that its finding of a predisposition to dismiss was determinative of the question of the principal reason for the dismissal. It had earlier in the Reasons referred to Brady in terms which suggest that it properly understood its effect as we have set it out at paragraph 33 above; and the careful reasoning of paragraphs 109 and 119 shows that it was approaching the issue essentially as one of fact.[39]We therefore reject Mr Hyams’ primary submission. But he had a separate challenge to the Tribunal’s reasoning on this issue. Its findings as to the reason for dismissal were ultimately based on its assessment, at paragraph 109, of the evidence of Mrs Brown. Its conclusion that her account of her motivation – namely that her decision was based entirely on the events of 25 February – was unreliable was based to a considerable extent on the criticism expressed at paragraph 109.2 of the Reasons. That criticism is directed at the statement at paragraph 6 of her witness statement that she did not know the Claimant or any other members of the staff “and so came to the hearing with no preconceived ideas”: it is said that that was a failure to “come clean” and was “completely disingenuous” because she failed to mention her attendance at the IEB meetings on 6 February and 11 March 2008 where it was decided that the Claimant should go. Mr Hyams showed us paragraph 6 of the witness statement and submitted that the Tribunal’s criticism was patently unfair. There was no reason why Mrs Brown should in the passage in question have said anything about the IEB meetings because they were irrelevant to the point which she was there making, namely that she was not liable to be prejudiced by previous contact with any of the protagonists of the events of 25 February. She cannot seriously have been intending to conceal her participation in the two IEB meetings, which was a matter of record.[40]We have been troubled by this point. We doubt whether we would have drawn any adverse inference from Mrs Brown’s failure in the passage in question to mention her attendance at the IEB meetings, and we doubt still more whether we would have described her evidence as “disingenuous”, which in its proper meaning is tantamount to an allegation of dishonesty. But it is necessary to remind ourselves that we are not the tribunal of fact. We did not hear Mrs Brown give evidence or have the opportunity to hear her answers on this point; nor were we provided with notes of her evidence. The Tribunal had other criticisms of her evidence. We do not in the end feel able to say that it was not entitled to come to the conclusion that it did in paragraph 109 of the Reasons. We would add that it is in our experience not uncommon for even lawyers to use the word “disingenuous” without appreciating its full force, and we note that at paragraph 109.1 the Tribunal went out of its way to describe Mrs Brown as “honourable”. The substance of its criticism would remain even if all that it meant was that Mrs Brown was unable to acknowledge to herself the influence which the previous decisions of the IEB had on her motivation.[41]The upshot of that lengthy analysis is that in our view the Tribunal was entitled to find, as it did, that the principal reason for the Claimant’s dismissal was not the events of 25 February but the panel’s pre-existing view that she should go because she was not up to the job. It follows, as we have already said (see paragraph 24 (2) above), that the dismissal was unfair. On that basis we need not consider the Tribunal’s alternative reasoning in paragraphs 127-134 and also in paragraph 135. As will have appeared, however, we have not found the point easy, and, that being so, we feel that we should consider Mr Hyams’ challenges to the Tribunal’s alternative ratio.[42]The starting-point must be that if, as the Tribunal found at paragraph 119, the panel did not approach the question of the Claimant’s culpability in relation to the events of 25 February with an open mind, that would by itself be a sufficient basis for a finding of unfairness. This is one of the points made by the Tribunal at paragraph 127 of the Reasons: see paragraph 26 (1) above. That is particularly so as the question which the panel had to decide involved some nice issues of judgement and evaluation. We strongly incline to the view, implicit in the Tribunal’s observations about contributory fault, that the Claimant is open to at least some significant criticism in failing (apparently) to plan for the anticipated demonstration at all, or to do anything about it when it occurred. But the panel accepted that the dereliction of duty which it found was not “wilful” (this was of course a very difficult time for the Claimant); and the question whether her fault in this regard was sufficient to merit dismissal must at least have been debatable. In those circumstances, for the panel to be strongly influenced by their views about the Claimant’s capabilities (albeit that ex hypothesi those were not their “principal” reason) was particularly likely to lead to unfairness. Mr Hyams’ only counter to that argument is that the findings about pre-judgment were themselves flawed. We have already considered and rejected that submission: see paragraph 39 above. (We should record in this connection that Mr Crawford initially argued before us that the fact that the members of the panel were members of the IEB and/or had participated in the decisions of 6 February and 11 March 2008 meant that they should have declined to sit. However, he eventually withdrew from that position. It was in fact a requirement of the relevant Regulations that disciplinary issues be decided by a panel consisting of IEB members. It was not part of the Tribunal’s reasoning that IEB members would automatically be prejudiced against the Claimant: its findings were based on its evaluation of Mrs Brown’s evidence.)[43]Most of Mr Hyams’ remaining points are directed to the secondary or tertiary grounds for the Tribunal’s findings of unfairness set out at paragraphs 128-134 and 135. He makes some fair points (and some that are less fair) about the details of the Tribunal’s reasoning in those paragraphs; but if the dismissal was unfair for either of the reasons considered thus far it does him no good to make headway on these points.[44]We need only note one particular ground of appeal, namely a contention that the Tribunal did not consider whether any unfairness in the decision of the disciplinary panel was cured by the appeal hearing. Mr Hyams’ particular point was that only one member of the appeal panel, Mr Rice, was an IEB member and thus implicated in the decisions of 6 February and 11 March 2008, and there are no adverse findings about his motivation equivalent to those made about Mrs Brown in paragraphs 109 and 119 of the Reasons. He referred to Taylor v OCS [2006] ICR 1602 . However, he accepted before us that he had made no specific submission to the Employment Tribunal to this effect. He said that it was unnecessary that he should do so: it was its duty to consider the process as a whole. Whether an unfair decision to dismiss can be “saved” by a fair appeal is very sensitive to the particular case. It is sufficient to say that in the circumstances of the present case it would not have been easy for the unfairness found by the Tribunal in relation to the initial decision to be cured on appeal; and that where no such point was expressly taken by the School the Tribunal is not to be criticised for not addressing the argument. CONCLUSION 45. For those reasons the appeal is dismissed. We regret the delay in promulgating our decision, which is principally the result of the pressure of work in this Tribunal.