Southampton City Council v Burnett (Unfair Dismissal : Reason for dismissal including substantial other) [2012] UKEAT 0276_11_0803

EAT
Southampton City Council v Burnett (Unfair Dismissal : Reason for dismissal including substantial other)
[2012] UKEAT 0276_11_0803 · 2012-03-08
[1]We have before us for full hearing appeals by Southampton City Council, the Respondent before the Southampton Employment Tribunal, against first the liability Judgment of an Employment Tribunal chaired by Employment Judge John Warren, promulgated with Reasons on 20 May 2011, upholding the complaint of the Claimant, Mrs Burnett, of unfair dismissal, and secondly against that same Tribunal’s reinstatement order made following a remedy hearing held on 15 April by a remedy Judgment with Reasons also promulgated on 20 May. Background[2]The Claimant commenced her employment with the Respondent as a teacher on 3 November 2008. She worked at the Melbourne Centre, a pupil referral unit (PRU) for children with behavioural difficulties. On 4 March 2010 an incident took place involving a pupil, AC. Following that incident the Claimant was suspended and an investigation was carried out by a Mrs Smith; statements were taken from the staff. It was recommended that a disciplinary hearing follow. That hearing came before Mr Nugent, Head of School Standards, on 23 June 2010. The charge against the Claimant concerned her conduct on 4 March, during which there was physical contact between her and AC. The outcome was summary dismissal. The note of Mr Nugent’s decision following witness evidence records this conclusion:
“I do believe that an incident occurred at the Melbourne Centre on 4 March […] and I believe that as a result AC, a pupil, was held by the Claimant with force and scratched in the process.”
[3]Against her dismissal, effective on 5 July, the Claimant appealed internally. Her appeal by way of re-hearing came before Mr Webster, the Director of Children’s Services, on 13 October 2010; he dismissed the appeal.[4]The Claimant presented her form ET1 to the Tribunal shortly before Mr Webster’s appeal hearing on 24 September. She complained of unfair dismissal and sought an order for reinstatement. By their form ET3 lodged just after the appeal hearing on 21 October the Respondent contended in their grounds of resistance that, “the case involves issues of child protection and contact with a pupil” (paragraph 6), and at paragraph 9 it was said:
“The weight of evidence against the Claimant was significant in that other staff members had either seen her making physical contact with the pupil and/or were of the view that she had lost control of herself and the situation. Other staff members were forced to restrain and remove her. The Claimant’s response to this evidence was that the staff members had fabricated their evidence to protect the pupil. That is not only unconvincing but also a very serious allegation against her former colleagues. The decision made on the balance of probabilities, was that the allegations were made out and that dismissal was the appropriate sanction.”
[5]And at paragraph 13, the Respondent alleges that:
“Through a fair and thorough investigation the Claimant has been found to have been guilty of improper conduct, during which there was contact with a pupil. There are strict guidelines and procedure for the way in which staff are to deal with incidents with pupils and the Claimant failed to follow these.”
[6]It is accordingly plain that the Respondent was relying on conduct as the potentially fair reason for the Claimant’s dismissal. The liability decision[7]On the face of the liability Judgment Reasons the Respondent lost on the question of whether or not the dismissal was fair because they failed to establish a potentially fair reason for dismissal. They did so because, having heard oral evidence from Mr Webster but not Mr Nugent, the Tribunal concluded that Mr Webster had failed to make any findings of fact as to what it was that the Claimant had done wrong in the incident involving the pupil, AC, on 4 March 2010. That is apparent from paragraphs 6 and 8, where they find that the Respondent had not identified the reason for dismissal. Plainly it was insufficient for Mr Webster to tell the Tribunal, against the factual background of the investigation, Mr Nugent’s reason for dismissal (he was called at the appeal hearing before Mr Webster) and the evidence heard by Mr Webster on appeal that (liability Reasons, paragraph 6), “The Claimant was guilty of inappropriate behaviour that I concluded amounted to gross misconduct”. It was therefore unnecessary for the Claimant to proceed to the neutral section 98(4) Employment Rights Act reasonableness question, following the British Home Stores Ltd v Burchell [1978] IRLR 379 approach: did the Respondent have reasonable grounds based on a reasonable investigation for its belief in the Claimant’s misconduct? The dismissal was unfair. The liability appeal[8]The reason for dismissal is a set of facts or beliefs held by an employer that cause him to dismiss the employee (see Abernethy v Mott, Hay and Anderson [1974] ICR 323, 330B, per Cairns LJ). Mr Savill submits, and Mr Rajgopaul agrees, that it will be an error of law for an Employment Tribunal to require an employer to make findings of fact if it is to establish the reason for dismissal, the burden lying of course on the Respondent. What must be shown is a genuine belief in the misconduct alleged. Mr Savill submits that this Tribunal has fallen into just that error on the face of its Reasons. If there were any doubt as to the test applied by the Tribunal, it is removed by its remedy Judgment, where at paragraph 7 the Tribunal say:
“It was significant at that hearing [the liability hearing] that Mr Webster was unable to give evidence to the Tribunal of the findings of fact that he made which persuaded him that the Claimant should be dismissed. He was unable to inform the Tribunal what it was that the Claimant had done which Mr Webster concluded was sufficiently serious to dismiss.”
[9]However Mr Rajgopaul, in a spirited defence of the Tribunal’s reasoning, submits that this was simply an infelicitous use of language. The Tribunal plainly had in mind the correct test because at paragraph 7 of the liability Reasons they direct themselves as to their enquiry into the facts found by or beliefs held by Mr Webster as to the conduct of the Claimant that formed the basis of grounds for dismissal. We are unable to accept that submission. It is clear to us that the Tribunal fell into the error identified by Mr Savill. There was no challenge to the reason, conduct, advanced by the Respondent. This was not a case such as Aslef v Brady [2006] IRLR 576 , Elias P, where the claimant put in issue the respondent union’s true reason for dismissal. Was it the claimant’s misconduct, as the union asserted, or was that a politically motivated opportunity to remove the union’s then General Secretary? In our judgment, on the material before it the Tribunal was wrong in law to conclude that the Respondent had failed to make out its reason for dismissal, conduct, because Mr Webster failed to find the facts. A genuine belief in misconduct will suffice.[10]In the alternative, Mr Rajgopaul contends that had the Tribunal accepted the Respondent’s reason for dismissal, it would inevitably have gone on to find that the Respondent did not have reasonable grounds for its belief justifying the dismissal. We have considered, and reject, that submission. It seems to us that the remaining Burchell questions, reasonable grounds following a reasonable investigation, necessarily require consideration by the fact‑finding Employment Tribunal. Disposal[11]It follows that we shall allow this appeal and remit the liability issue to the Employment Tribunal. Mr Rajgopaul suggests that it should return to the same Tribunal; Mr Savill, to a freshly constituted panel. We agree with Mr Savill. This was, in our judgment, a totally flawed decision below (see Sinclair Roche & Temperley v Heard [2004] IRLR 763 , paragraph 46(4), per Burton P). It would not be appropriate to ask the same Tribunal to review its earlier decision in these circumstances, notwithstanding the regrettable inconvenience to the parties of a complete re-hearing. Remedy appeal[12]It is common ground that in these circumstances the Tribunal’s reinstatement order must also fall; we agree. The question of remedy, if the Claimant succeeds on remission, will be decided afresh by the new Employment Tribunal.