Tubbenden Primary School v Sylvester (Unfair Dismissal : Reason for dismissal including substantial other) [2012] UKEAT 0527_11_2504

EAT
Tubbenden Primary School v Sylvester (Unfair Dismissal : Reason for dismissal including substantial other)
[2012] UKEAT 0527_11_2504 · 2012-04-25
[1]On 7 June 2011 by Reasons delivered on that date the Employment Tribunal at Ashford upheld the Claimant’s complaint that she had been unfairly dismissed by the Tubbenden Primary School (“the School”) at which she had worked and awarded total compensation of £50,700.20. It had been claimed that her dismissal was for some other substantial reason of a kind such as to justify her dismissal as being an employee holding the position that she held under section 98(1)(b) of the Employment Rights Act 1996 (ERA). Background[2]The background is dealt with comprehensively in the Judgment of the Employment Tribunal. It is necessary only to summarise the background facts. They are these. The Claimant was a teacher who was employed at the School as one of two Deputy Heads. It was agreed throughout the proceedings that she was an outstanding teacher; there has never been the slightest word of criticism about her teaching abilities. She was friendly with a Mr Quinney, who was the Assistant Head. In February 2008 he was arrested for possessing indecent images of children (not children at the School) and was suspended. In March 2008 he was told not to contact the School or its staff.[3]The Headteacher, a Mr Youlton, specifically advised the Claimant that she should not be in touch with Mr Quinney. She, as both a committed Christian and friend, responded by saying that she could not do that. The Tribunal said at paragraph 12:
“It is common ground that immediately after that conversation Mr Youlton wrote to the Claimant to give her an instruction to that effect. Neither he nor the Claimant have retained a copy of that letter. […] It is similarly common ground that the Claimant did not heed the instruction; Mr Youlton was well‑aware of that fact and he took no steps in respect of his knowledge at the time.”
[4]Some nine months later, on 15 January 2009, the Claimant was asked to attend a meeting concerned with her continuing friendship with Mr Quinney. That meeting was one attended by officials from the London Borough of Bromley, as education authority. It concluded with their being satisfied with the answers given by the Claimant and summarising in effect her awareness of the potential risks involved in any continuing relationship of hers with Mr Quinney. She was not told to desist; indeed, the minutes concluded (see paragraph 17):
“In light of [the Claimant’s] responses made to questions posed to her at the meeting and as [the Claimant] has attended Safer Recruitment Training and is confident about recognising the profile and behaviours of perpetrators, it was agreed that no further action would be taken.”
[5]The Claimant continued to support Mr Quinney as a friend; we emphasise there was no question of any more intimate relationship. She saw him but was careful to keep a distance from the School. There were nonetheless comments made at the School gate from time to time about her continuing relationship. Those comments were not addressed openly to the Claimant; despite Mr Youlton, the Headteacher, being aware of them, he took no step to alert the Claimant to the fact that they had been made and reported to him.[6]On 28 August 2009 Mr Youlton phoned the Claimant and asked her to come to a meeting on 2 September 2009 together with a trade union representative. He did not tell her what was to be discussed. When the Claimant attended he again declined to inform her of the issues that were to be discussed (see paragraph 28 of the decision). The Claimant asked whether her continued friendship with Mr Quinney was at the heart of the matter, and Mr Youlton confirmed that it was. She then asked whether if she gave up her friendship, the suspension would go away, and that question was not answered. The result of the meeting was that she was suspended. There was no evidence that she was any risk to children at the School; it was confirmed at the meeting that following the meeting of 15 January 2009 there was no case to answer as to that. The Tribunal recorded the matter in paragraph 30 as follows:
“The suspension was confirmed to the Claimant by a letter […] from Mr Youlton in which he stated it was pending the completion of his investigation into his significant and serious concerns regarding the Claimant’s continued relationship with Mr Quinney and the impact that was having on his trust and confidence in her role as Deputy Head Teacher.”
[7]Mr Youlton enclosed a copy of the relevant disciplinary procedure. By letter of 25 November 2009 the Claimant was invited to a disciplinary hearing on 14 December 2009. The allegations were three in number: first, that the Claimant’s continuing friendship with a registered sex offender was seriously impacting on the School’s reputation; secondly, that the continuing friendship presented a potential and avoidable safeguarding risk to pupils of the School; and thirdly, that the Claimant’s Judgment in the matter had led to a complete breakdown in the trust and confidence that the Headteacher had in her as a Deputy Headteacher such as to render her continued employment at the School untenable.[8]The Tribunal recorded some procedural shortcomings, though perhaps of little materiality, in the way in which the disciplinary hearing was conducted. The result of the hearing was that the governors determined that the Claimant should be dismissed. She was entitled to appeal. She did so by letter of 23 February 2010 and, having done so, told the police locally that she had taken the decision to have no further contact with Mr Quinney in any form. The appeal hearing had the result that the appeal panel, constituted on this occasion by two governors from another school at the request of the Claimant and one from Tubbenden, decided by a unanimous decision that the second charge, that of risk, should be entirely dismissed, decided by a majority that there was no serious impact on the School’s reputation from the continued friendship with Mr Quinney, but concluded, also by a majority, that there had been a breakdown in trust and confidence between the Headteacher and the Claimant. The way in which it was expressed (see paragraph 55 of the Tribunal Judgment) was as follows:
“After very careful consideration, the committee felt that the trust and confidence had broken down to the extent that you could not return to Tubbenden School and that this had been caused following a serious lack of judgment on your part. It felt that the relationship was unlikely to be mended by further training or mediation. This was a difficult decision for the Committee given your excellent teaching skills and contribution to the school, however, the Committee believed it had to give priority consideration to the best interests of the school, its pupils and parents and that these would not be served by your return to Tubbenden. The Committee therefore upholds the original decision of the staff dismissal committee that you stand dismissed on the grounds of a breakdown in trust and confidence.”
[9]What had begun therefore as a potential dismissal for misconduct alleged to be gross misconduct concluded with one that by the time the matter came before the Employment Tribunal was to be classed as for some other substantial reason, as we have already mentioned. The Employment Tribunal decision[10]The Employment Tribunal, having set out the facts, accepted that the reason for dismissal given by the School was genuinely some other substantial reason. It took the view that that was a potentially fair reason where the Headteacher had lost trust and confidence in his Deputy Headteacher and then noted that the Tribunal had to consider whether, “in light of the provisions of section 98(4) and the relevant principles to be derived from case law it was in fact a fair dismissal” (paragraph 66). It went on to say in paragraph 67:
“As noted above, we are unanimously of the view that this dismissal cannot be tested solely by reference to whether or not the reason was, in all the circumstances of the case, a sufficient reason to amount to “some other substantial reason”
. It is our unanimous view that it is essential to fairness in the circumstances of a case such as this that the process by which the Claimant arrived at the position in which her employment was under threat is examined in some detail.”[11]The reference to what was noted above, with regard to which the Tribunal expressed the view it did in paragraph 67, was a reference to what was said at paragraph 63. So far as material, that was:
“We were […] of the view that in light of the nature of the allegations against her, each of which was specifically by reference to conduct on the part of the Claimant, that many of the principles applicable to cases where misconduct is alleged were equally applicable to ensure fairness in this case. We could see no good reasons why an employer in the position of the Respondent should be in a position where it might apply a lower standard of procedural fairness to an employee by invoking ‘some other substantial reason’ for the dismissal when that reason is, in reality, no more than the corollary of some form of conduct to which the employer has taken exception.”
[12]Taking the approach, therefore, that the process by which the Claimant arrived at the position in which her employment was under threat needed to be examined, the Tribunal looked at the history as we have summarised above. It took the view that the action of the Headteacher in being both aware of the association that the Claimant had continued with Mr Quinney in 2008 and in choosing not to take any action at all in respect of it had the effect of condoning that continued relationship (paragraph 68). As to the meeting on 15 January 2009, the Tribunal concluded (paragraph 69):
“It is clear that the Claimant was told at that meeting that no further action was necessary in respect of her continuing relationship with Mr Quinney. In our view that conduct on the part of the Respondent was, at the very least, a tacit consent to that relationship continuing.”
[13]It found that Mr Youlton had not told the Claimant of the concerns that parents had expressed, that no one had told her, and that she had never been warned at any stage that the continuation of her relationship, such as it was, with Mr Quinney might put her employment in any jeopardy (paragraph 75):
“We consider this to be a fundamental failure in light of the terms of the ACAS Code and the Guidance that accompanies it. In our view it is of the essence of disciplinary proceedings that involve the conduct of a member of staff, whether that conduct is the direct or indirect cause of complaint, that the member of staff should be given warning in appropriate cases as to any concerns such conduct gives rise to on the part of the employer.”
[14]At paragraph 77 the Tribunal said this:
“77. Having considered all the evidence in this case we have unanimously concluded that it was unfair of the Respondent not to have warned the Claimant as to the potential consequences of her continuing to meet Mr Quinney. Whether that was done informally in the first instance or by giving the Claimant a formal instruction to that effect coupled with an informal caution, or some similar sequence of steps, we have concluded on a balance of probabilities that the Claimant would have reviewed the position she had adopted and either ceased seeing Mr Quinney entirely or ensured that she only saw him in private at such places as the Probation Service offices. We are reinforced in that view by what took place at the meeting between the Claimant and Mr Youlton on 28 August 2009 when the Claimant asked Mr Youlton, ‘If I stop seeing Mr Quinney will the suspension go away?’ It is most unfortunate that Mr Youlton did not give the Claimant a response there and then. 78. We thought it particularly unfortunate that the Respondent moved, in effect, directly from taking no action whatsoever to suspending the Claimant. […]”
[15]The Tribunal found itself at a loss to understand why it was thought to be either appropriate or necessary for the Claimant to be suspended (paragraph 81); it expressed its view that the suspension of the Claimant was “highly dubious”. In paragraph 83 it expressed surprise that Mr Youlton had taken it upon himself to be the investigating officer. It gave reasons for that view. Its reasons included that the allegations being made against the Claimant concerned his own assessment of the level of trust and confidence he had in the Claimant, and it was unlikely that he would be capable of a reasonably objective assessment of that issue as he would simply be examining his own belief. It considered the quality of the investigation carried out by Mr Youlton to be wholly inadequate (paragraph 84); that is a conclusion of fact that has been subject to no challenge in this court. It turned to the hearing before the appeal panel:
“86. Based on our assessment of the adequacy of Mr Youlton’s investigation and the paucity and quality of the evidence on those issues it came as no surprise to us that the appeal panel, albeit by a majority in one case, did not uphold the allegations relating to the school’s reputation and the safeguarding risk posed by the Claimant. 87. As a consequence of those conclusions, therefore, we were of the view that there was little objective material on which Mr Youlton could reasonably have concluded that his trust and confidence in the Claimant had been undermined. The appeal panel do not appear to have given any great consideration to this issue. It was clear to us from Mrs Donald’s evidence [she was a governor who was part of the appeal panel] that they relied, to a great extent, on their observations of the conduct of the Claimant and Mr Youlton in the course of the appeal hearing to come to the conclusion that the relationship between the Claimant and Mr Youlton had been irreparably damaged. Based on all the evidence we heard, not least that of Mr Youlton’s address to the appeal panel, we have no doubt that the greatest damage to that relationship arose directly from the consequences of Mr Youlton’s decision to suspend the Claimant and the procedures that were adopted in relation to her thereafter.”
[16]We note, a matter that will be of significance in the light of the submissions, that although the Tribunal concluded that the greatest damage arose from Mr Youlton’s actions it did not indicate where responsibility for the balance of the damage fell: “88. We accepted the Respondent’s submission that the appeal panel agonised long and hard over what they found to be an extremely difficult case. We are aware that both the Claimant and Mr Youlton underwent counselling as a consequence of these events. It was clear from her demeanour that Mrs Donald was also emotionally affected by them. We have every sympathy for the dilemmas that the appeal panel felt they were faced with. The majority only reluctantly came to the conclusion that the Claimant’s employment should be terminated. The Chairman took the view that the matter should never have got to the point it had. However, having considered all the evidence in the case we cannot characterise the appeal panel’s decision as being outside the band of reasonable responses.[89]That does not mean that this was a fair dismissal. We are required by section 98(4) Employment Rights Act 1996 and the decision in Taylor v OCS [ [2006] IRLR 613 ] to have regard to ‘all the circumstances of the case’ in reaching a decision as to whether this dismissal was fair or unfair. Based on our above findings of fact we are unanimously of the conclusion that this was an unfair dismissal. That conclusion had not been reached as a consequence of any sympathy or emotion affecting our judgment in favour of the Claimant: we heeded the Respondent’s Counsel’s submissions on that issue.90. It is our unanimous view that the Respondent failed at an early stage to deal with the perceived problem arising from the Claimant’s continued relationship with Mr Quinney in an appropriate manner. They could, quite properly, have given the Claimant a formal instruction not to see Mr Quinney at all, or not to see him in any public place, at any time that a concern arose in their minds. They chose not to do so. More than that, by their conduct in the meeting of 15 January 2009 the Respondent tacitly approved of the Claimant continuing with that relationship. Even thereafter, when Mr Youlton became aware of the concerns being expressed on an informal basis by what appear to have been a small number of individuals he took no steps to inform the Claimant of those concerns or to advice her as to her conduct, issue her with an instruction and/or inform her of the potential consequences of disobeying it. All the above steps were open to Mr Youlton. Appropriate advice should have been available to him throughout the period prior to his suspension of the Claimant on 1 September 2009. We are at a loss to understand how he was not advised of those options by the appropriate HR specialists, particularly in light of the Respondent’s policy, the ACAS Code of Practice and the Guide to it.91. We therefore make a declaration that, in all the circumstances of the case, the dismissal of the Claimant was unfair.”[17]The Tribunal then went on to consider issues relating to contribution, Polkey vAE Dayton Services Ltd [1987] IRLR 503 and remedy. That in respect of contribution is relevant to the arguments that have been addressed to us; we shall set it out in full:
“92. We have next gone on to consider the issue of contribution. It was the Respondent’s case that the Claimant’s conduct in continuing her relationship with Mr Quinney was so obviously improper that she should have recognised it herself and either brought it to an end or expected the likely consequences as being that of dismissal. We did not accept that submission. In our view it is fatally flawed by the Respondent’s own conduct in condoning the Claimant’s continuing relationship with Mr Quinney at the meeting of 15 January 2009. In any event we are unanimously of the view as noted above that had the Respondent had real concerns regarding that continuing relationship it had an obligation as an employer to warn the Claimant of the potential consequences of her continuing it and, had it done so, the Claimant was more likely than not to have brought it to an end long before the Respondent would have considered instigating disciplinary proceedings.”
The grounds of appeal[18]Grounds 1 and 2 to some extent run together. The first ground is that the Tribunal erred in law in finding that the decision of the appeal panel was within the band of reasonable responses – that being the expression used at the end of paragraph 88 quoted above – and yet that the dismissal was nevertheless unfair. The second ground was that the Tribunal erred in law in considering not only whether the relationship between the parties had broken down but also why it had broken down. The submission there was that the Tribunal was required by the words of section 98 and by applicable case law to focus entirely upon the circumstances as they were at the moment that the appeal panel came to its decision and not the reasons why those circumstances came to be.[19]As to the first ground, it was accepted, rightly in our view, by Mr Pretsell, who appears for the Claimant, that the wording adopted by the Tribunal in the concluding sentence of paragraph 88 was both curious and particularly unhelpful. Normally one would expect the “band of reasonable responses” to be indicative of the approach that a Tribunal takes to the question whether a dismissal is or is not fair and reasonable. It is a test and an approach that in the case law relates to the application of the statutory test in section 98(4). Thus it normally represents the conclusion to which a Tribunal comes rather than a step in its reasoning along the way. The fact that it may be relevant (see Sainsbury’s Supermarkets Ltd v Hitt [2002] EWCA Civ 1588 ) to ask whether aspects of fairness such as the fairness of an investigation are within the band of reasonable actions that an employer may take does not alter that general comment and approach. Thus one might have been forgiven for thinking that at the conclusion of paragraph 88 this Tribunal had answered the entire question that had been posed to it. However, the very next sentence shows that that is not the way in which the Tribunal was using those particular words in this particular context. They were, “That does not mean that this was a fair dismissal”. It went on to explain that it had to focus upon all the circumstances of the case.[20]We have to be very cautious about taking infelicitous words and phrases in a Judgment, particularly one that, as in this case, extends to some 24 pages and 110 paragraphs, out of context. The Judgment of an Employment Tribunal is not intended as an elaborate piece of legal draughtsmanship and craftsmanship; it is intended to convey the reasons why a Tribunal has reached the conclusion it has. We have to have regard to the whole of the decision in order to determine what it was that the Tribunal were here endeavouring to say. Given the way in which the Tribunal set out the facts, and the conclusions it expressed as to those facts and the assessments it made of them, it is plain to us that, taking the approach we have just identified, this Tribunal were not saying at paragraph 88 in one breath that the decision was fair only to resile in the next breath from that same contention.[21]It is not easy to understand precisely what the Tribunal had in mind. However, it made it plain in the next sentence again, the second sentence of paragraph 89, that it was to have regard to section 98(4) of the ERA. A Tribunal exercising a statutory jurisdiction, even one that has the assistance of as much case law as does the right not to be unfairly dismissed, must always remind itself explicitly or implicitly of the requirements of statute and that what any case says is likely to be a gloss upon the statute, however helpful and however authoritative that may be. The Tribunal makes it plain by what follows that it assessed this dismissal as unfair and says why. It may be that the Tribunal had in mind in the concluding words of paragraph 88 no more than that the employer would have been entitled in some circumstances to have dismissed an employee such as a Deputy Head where the Headteacher had for good reason ceased to have trust and confidence in her. It may be that the Tribunal had in mind that if one focussed purely upon the decision of the appeal panel and did not take into account any of the matters that had gone before leading up to that decision through the disciplinary process then, examined on its own, it might have been fair. But it is plain – and this is where ground 2 overlaps – that the Tribunal had regard to more than just a decision of the appeal panel reached, as it were, in isolation on the three days of its hearing. We have therefore concluded that ground 1 falls. The Judgment, read fairly, is not fatally wounded by what might have seemed an apparent inconsistency between paragraphs 88 and 89.[22]As to ground 2, however, rather more needs to be said. The conclusion of Mr O’Dair’s submission is stark. He submits that it is not open for a Tribunal dealing with some other substantial reason for dismissal to have regard to how the parties had reached the position in which the decision to dismiss or not fell to be made. For that, he relies upon, first of all, section 98 itself. He argues that the focus for the Tribunal’s decision‑making has to be upon the reason for the dismissal; it is that to which the requirement of fairness is addressed. He characterises the Tribunal decision as being, in essence, that the dismissal was unfair because there was no warning. He would be bound to accept, we suspect, that if this had been a dismissal for misconduct, the presence or absence of a warning would have been a highly material factor in assessing the fairness within section 98(4), but this was not a dismissal for misconduct; it was a dismissal for some other substantial reason.[23]Thus he takes us to the cases that have examined some other substantial reason where there has been a loss of trust and confidence by the employer or by a senior manager in the employment of the employer and the employee concerned. In the case of Ezsias v North Glamorgan NHS Trust [2011] IRLR 550 the Employment Appeal Tribunal, presided over by Keith J, was concerned with a claim made by a consultant surgeon employed by the respondent Trust. He was found by an Employment Tribunal not to have been unfairly dismissed. He appealed against the dismissal of that claim. One of his grounds of appeal was that the employer had acted in breach of his contract of employment by failing to follow the disciplinary procedures that applied when disciplinary action against a member of staff for misconduct was being contemplated. He argued that either the allegations related to professional misconduct, in which case, in accordance with the contract, external investigations should have been launched, or they related to personal misconduct, in which case the employer’s own internal procedures should have been followed. The failure to follow such procedures made the dismissal unfair on conventional grounds. The issue, therefore, before this Tribunal was in part whether the contract had been broken. The answer given at paragraph 47 was:
“[…] the relevant question for the Tribunal was whether the action which the Trust took against Mr Ezsias should have been regarded as action taken against him because of his conduct . If it was not, the need to classify it as personal or professional conduct would not arise. But if the Tribunal was to find that the action which the Trust took against Mr Ezsias should have been regarded as action taken against him because of his conduct, the Tribunal would then have to consider whether it should have been classified as personal or professional conduct.”
[24]The Appeal Tribunal had regard to the Employment Tribunal’s finding that the reason or principal reason for the dismissal of Mr Ezsias was the reason given by a Mr Hayburn in a letter of dismissal; that is, the breakdown of relationships with his colleagues caused in the main by the behaviour of Mr Ezsias (see paragraph 48 of the Appeal Tribunal Judgment). The Appeal Tribunal noted that the Employment Tribunal had been alive to “the refined but important distinction between dismissing Mr Ezsias for his conduct in causing the breakdown of relationships and dismissing him for the fact that those relationships had broken down”. It commented:
“53. […] the only fair reading of the Tribunal’s finding […] about the reason for Mr Ezsias’ dismissal is that although as a matter of history it was Mr Ezsias’ conduct which had in the main been responsible for the breakdown of the relationships, it was the fact of the breakdown which was the reason for his dismissal (his responsibility for that being incidental). 54. With that in mind, we return to the question of whether the action taken against Mr Ezsias for that reason should properly have been classified as action taken against him because of his conduct. As we said […] the law about whether someone’s dismissal is for their conduct or for some other substantial reason of such a kind as to justify their dismissal is not directly relevant, but the reasoning which underlies that jurisprudence would inevitably apply here. Once you have excluded Mr Ezsias’ responsibility for the breakdown of the relationships as the cause of, or a factor contributing to, that breakdown, and you concentrate only on the fact of the breakdown of the relationships, the answer, in our view is inevitable. However you characterise the reason for the action taken against him, it was not his conduct.”
[25]Accordingly, it rejected the ground of appeal made to it.[26]The lesson that Mr O’Dair urges us to take from that decision is that the Employment Tribunal in the case we are considering erred by treating the dismissal of the Claimant as if it were a conduct dismissal even though the appeal panel in fact dismissed because of a breakdown of the relationship. It was wrong to take into account the absence of a warning. The absence of a warning did not alter the fact that the managerial relationship had broken down so that the continued employment became untenable. In this respect an analogy was properly to be drawn with the case of McAdie v Royal Bank of Scotland PLC [2007] ICR 1087, reported at EWCA Civ 806. That decision of the Court of Appeal related to an employee who claimed that the employer had been entirely responsible for the ill health from which she suffered. In those circumstances, it was argued that although the claimant had said that she would never be fit to return – and there was no suggestion that she would be – she could not be fairly dismissed by the employer. The Judgment of Wall LJ, with which Rix and Buxton LJJ agreed, regarded the position of counsel for the claimant as being an impossible position. He was constrained to argue that because of its behaviour and responsibility for the claimant’s condition the bank, as a matter of law, was simply unable fairly to dismiss the claimant. At paragraph 42 he accepted, however, it was possible on the authorities for an employer who had negligently been responsible for personal injuries suffered by an employee in the course of employment nonetheless subsequently to dismiss the same employee on the ground of capability without rendering the employer liable to a finding of unfair dismissal.[27]At paragraph 43 occurs a passage upon which Mr O’Dair placed heavy reliance, adapting the words spoken by Wall LJ to the circumstances of this case. Having noted that the claimant had made it crystal clear that no matter what anyone said or did she was not coming back to work for the bank, he observed:
“In my judgment, therefore, Mr Over had no answer to the question: ‘what was the bank to do in these circumstances?’ save to fall back on the mantra that the bank’s behaviour had been so poor and its responsibility for the appellant’s condition so total that there were no circumstances in which it could fairly dismiss the appellant. As I have already indicated, that proposition is, in my judgment, simply untenable.”
[28]If, argues Mr O’Dair, one regards the position here as being analogous to the position in McAdie , the question arises whether it could ever be fair for the governing body of the School to dismiss the Claimant given that the circumstances of a complete loss of confidence by Headteacher in Deputy Head had a plain analogy to the circumstances of a complete loss of health on the part of the employee. He reminded us of the decision in Perkin v St George’s Healthcare NHS Trust [2005] EWCA Civ 1174 . That was a case in which the Finance Director of an NHS Trust had attacked the Chief Executive and others, and accused them of lying; he had difficulties in his relationships with them. He was dismissed on grounds that, it was argued, were insufficiently clear, and argued that if it had been a conduct case, there should have been warnings and guidance. As to that, Wall LJ, with whose Judgment Mance LJ and Tuckey LJ agreed, concluded that he would think that the reaction, aggressive as it was, to proceedings had amounted to corroboration of the accusation that the claimant had already shown himself near impossible to work with rather than for. He adopted the words that Sedley LJ had given expressing those sentiments and adding:
“For my part, however, I would think this was an ‘other substantial reason’ case: an employee in a senior position who could not or would not work harmoniously with colleagues and outsiders with whom a harmonious relationship was essential. While the absence of a warning and guidance is relied on only, as I understand it, on the premise that this was a conduct case, I would have thought it capable of having a bearing on both of the two grounds founded on by the ET. But their view, and that of the EAT, was evidently that Mr Perkin was too entrenched in his attitude to respond positively […].”
[29]The headnote (see page 617 of ICR) indicated that:
“A breakdown in confidence between an employer and one of its senior executives with which the latter was responsible and which actually or potentially damaged the employer’s operations or rendered it impossible for the senior executives to work as a team could be some other substantial reason for dismissal and could result in a fair dismissal provided the terms of section 98(4) were satisfied; and that, accordingly, the Tribunal is entitled to conclude that the Trust had a potentially fair reason to dismiss the Claimant, and the manner of the Claimant’s defence at the disciplinary hearing – in particular, manifestly unfounded attacks on his colleagues’ honesty, financial probity and integrity – were such that the Tribunal had been entitled to find both that an independent and fairly conducted hearing would have resulted in his dismissal and that he had contributed 100 per cent to it.”
[30]The Judgment of Wall LJ contains paragraph 60, in which he said this:
“I did not understand [Counsel for the Claimant] to argue that in a given case a breakdown in confidence between an employer and one of its senior executives: (a) for which the latter was responsible; and (b) which actually or potentially damaged the operations of the employer’s organisation (or which rendered it impossible for the senior executives to work together as a team) was outwith section 98 as SOSR and therefore could not result in an employer fairly dismissing the employee whom the employer deemed responsible for that state of affairs.”
[31]He noted that, although those words seemed to indicate a need to hold the employee who was dismissed responsible for the breakdown in trust and confidence, and that there had been actual and potential damage, at least in the view of the employer, the principle had been taken further by the case of Eszias such that it was not essential in order for a dismissal for some other substantial reason to be held fair that the employee concerned should be responsible for the breakdown of trust and confidence, or that there should be any inquiry, which that conclusion would necessarily indicate, into the circumstances in which there was the actual breakdown of trust and confidence that had occurred. By amendment, for which we gave permission at the start of this hearing (for reasons we gave at the time, despite the opposition of Mr Pretsell) he argued, as new ground 2A, that the Tribunal should not have considered why the relationship had broken down or alternatively should have considered the breakdown on the basis that both parties had contributed to it and that the dismissal of the Claimant was therefore within the band of reasonable responses.[32]In response Mr Pretsell argued, first, that it may in some circumstances be essential to understand how a particular position had been reached. If in a small business a senior employee had for no very good reason decided that he had no confidence in a junior employee, to focus upon that matter to the exclusion of any consideration of how the confidence came to be lost and to conclude that because there was the loss of confidence as to which the senior employee’s evidence would be the only evidence that could be relied upon would be insufficient to answer the question of fairness posed by section 98(4). The words of the statute, he argued, required a focus upon all the facts of the case. Section 98(4)(a) includes the words “[…] in the circumstances […] the employer acted reasonably or unreasonably in treating [the reason] as a sufficient reason for dismissing the employee”, and, he noted, by section 98(4)(b), that was to be determined in accordance with equity and the substantial merits of the case. Those words required a focus upon more than simply the state of confidence at one point in time, namely the time at which the appeal panel came to make its decision.[33]He argued that authority supported the view that it was appropriate for a Tribunal to have regard to how the given state of affairs came about; the citations from Perkin to which we have already referred indicate that. He drew our attention to the observations that in the view of Sedley LJ, with which Wall LJ agreed, the absence of a warning and guidance could have a bearing on a dismissal for some other substantial reason.[34]At paragraph 65, commenting upon the well-known decision in British Home Stores Ltd v Burchell [1980] ICR 303 , Wall LJ observed:
“[…] whilst Burchell is itself a ‘conduct case’, I see no reason why the principles it sets out relating to fairness should be limited to cases under ERA 1996 section 98(2)(b).”
He must therefore be taken to be accepting that there was no reason why a Tribunal should not have had regard to the absence of a warning when determining a case in which it was alleged the dismissal was not for misconduct but for some other substantial reason. Mr Pretsell argued that in McAdie Wall LJ had said at paragraph 40 that he was both in complete agreement with the Appeal Tribunal’s Judgment, which he cited extensively, and at the same time was reluctant to add to it. What was so completely endorsed included the passage (see paragraph 37) quoting the Appeal Tribunal as saying:
“It seems to us that there must be cases where the fact that the employer is in one sense or another responsible for an employee’s incapacity is, as a matter of common sense and common fairness, relevant to whether, and if so when, it is reasonable to dismiss him for that incapacity.”
[35]At paragraph 38 Wall LJ observed that the Employment Appeal Tribunal had proceeded on the basis that the Tribunal had not erred in principle in being prepared to take into account the fact, as it found, that the bank was responsible, and culpably so, for the claimant’s ill health. The circumstances in the meaning of section 98(4), which the Tribunal had identified, it regarded as regarded as including the bank’s responsibility for the illness of the claimant in that case. Thus, Mr Pretsell submits that even if one did not have regard to the ACAS Code of Practice, which this Tribunal did, and expressly so, the authorities, consistent with the requirement of statute, showed that one could not simply isolate the decision as to dismissal by, as it were, drawing a circle around the loss of trust and confidence and saying, in the light of that, that a dismissal was inevitable and, if so, concluding that it must inevitably be fair. Discussion[36]In our view, context is highly important; as has been said, it is everything. Cases and the situations which they present must be viewed within their own context. So far as Ezsias is concerned, it is, we consider, important to recognise that what this Tribunal was concerned with in the relevant passages was a very narrow appeal. It was on what was identified as ground 4 at paragraph 39 of the Judgment. In a nutshell the claim was that Mr Ezsias had been dismissed otherwise than in accordance with disciplinary procedures to which he was entitled not as a matter of essential fairness but under his contract of employment. The critical question was whether in the light of the reason for the dismissal those procedures applied to his case. The focus of the case thus was entirely upon whether or not as a matter of contract the disciplinary procedures applied or whether they did not. So viewed, the relevant question posed at the start of paragraph 47, to which we have already referred, is asked in the context of deciding whether or not as a matter of contract the disciplinary procedures should have applied, allowing, as it happens in that case, Mr Ezsias to argue further that a particular set of procedures should have been applied to him because his dismissal should be regarded as professional rather than personal misconduct.[37]It was that which made it necessary, as we see it, to identify what was the reason for the dismissal. We do not see the Tribunal in Ezsias as having been concerned with the question that arises in the present case, which is whether it is relevant to the fairness of a dismissal to pay regard to the development of the breakdown in trust and confidence. So far as McAdie is concerned, it too was a quite remarkable case. That was a case in which the dismissal was for capability. Capability of its nature does not lend itself as easily as does a conduct case to issuing a warning. Ill health is not as easily regulated by the warning of the consequence of continued ill health as misconduct is to be regulated by the warning of continued conduct said to be wrongful; that is obvious. So far as dismissal there was concerned, too, we note that if there were responsibility in law for the state of health of the claimant, she would not be without a remedy. That cannot so easily be said in the context of a claim in respect of some other substantial reason. Where the substantial reason relied upon is a consequence of conduct (and in this case it can be no other), there is such a clear analogy to a dismissal for conduct itself that it seems to us entirely appropriate that a Tribunal should have regard to the immediate history leading up to the dismissal. The immediate history is that which might be relevant, for instance, in a conduct case: the suspension; the warnings, or lack of them; the opportunities to recant and the like; the question of the procedure by which the dismissal decision is reached. It cannot, in our view, always and inevitably be trumped simply by the conclusion that there has been a loss of confidence without examining all the circumstances of the case and the substantial merits of the case, as section 98 would require.[38]We are not at all unhappy, as a matter of principle, to reach the view that that is so, because as a matter of principle if it were to be open to an employer to conclude that he had no confidence in an employee, and if an Employment Tribunal were as a matter of law precluded from examining how that position came about, it would be open to that employer, at least if he could establish that the reason was genuine, to dismiss for any reason or none in much the same way as he could have done at common law before legislation in 1971 introduced the right not to be unfairly dismissed. Lord Reid in Ridge v Baldwin [1964] AC 60 observed that the law of master and servant was not in doubt; that an employer could dismiss an employee for any reason or none. It was to prevent the injustice of that that the right not to be unfairly dismissed was introduced. The right depends entirely upon the terms of the statute, but there is every good reason, we think, depending upon the particular facts of the case, for a Tribunal to be prepared to consider the whole of the story insofar as it appears relevant and not artificially, as we would see it, be precluded from considering matters that are relevant, or may be relevant, to fairness.[39]Here, we could not say, nor has it been argued, that the Employment Tribunal was perverse to take the approach it did in concluding that it was relevant to the fairness of this dismissal that in its view the Claimant should not only not have been warned, but that indeed her conduct had been considered with her by her employer, and she had been entitled to think that it was condoned by the employer, or certainly not objected to. Then to discover that she was to be dismissed because the continuation of the very conduct that the employer had condoned was to be regarded as gross misconduct might be thought unfair, especially where the Headteacher had received observations from parents which he simply failed to draw to the Claimant’s attention at any relevant time. So viewed, it seems to us, the Employment Tribunal was entitled to take that into account in determining the fairness of the case.[40]Context being everything, subject to the wording of the statute, in our view there is no force here in the argument addressed to us by Mr O’Dair that would refuse any entitlement of the Tribunal to consider the background as part of the circumstances. Indeed, it might be thought that the citations from the McAdie case would permit it in most cases, though not plainly in that case itself. We are not saying that in every case in which there is a dismissal for some other substantial reason, where that reason is a breakdown of trust and confidence, that a Tribunal must have regard to how that situation came about; to do so would be to repeat the error identified in McAdie . But what we are asked to do is to say that the Tribunal is not entitled in an appropriate case to take such matters into account, and that we simply decline to do.[41]We deal with the remaining grounds rather more shortly. As to ground 3, it is argued that there was substitution of the Judgment of the Tribunal for that of the employer. In Fuller v London Borough of Brent [2011] ICR 563 at paragraphs 27‑31 Mummery LJ set out the proposition that although an Employment Tribunal may recite appropriate authorities, nonetheless it may be shown to have erred in law; the “substitution danger” is well known. Mr O’Dair draws our attention to a number of parts of the Judgment in which he argues that exactly this has happened. In paragraphs 79 and 82 the Tribunal considered the question of the suspension. By coming to the conclusion that the suspension was highly dubious, he argues that the Tribunal was expressing its own view, which it had no right to do.[42]As to that, we do not accept that that expression should be read in that way. As Mr Pretsell reminds us, there was both the ACAS Code to be considered, and, as we have discovered with the help of counsel, there was a disciplinary code in this particular case. That disciplinary code was copied to us after the conclusion of argument yesterday; though counsel have had an opportunity to say more about it this morning in the light of the views that we provisionally expressed to them, neither has taken advantage of that. The procedure was before the Tribunal. Its purpose and scope is, relevantly, to cover allegations concerning an employee’s work misconduct which arise from the employee’s wilful neglect of his or her duties. The suspension is optional where there is misconduct but, it appears from paragraph 4, is or may be automatic if the alleged offence would constitute gross misconduct. The Tribunal had at one part of its decision here said that an employee may be automatically suspended, which seemed to us to be a contradiction in terms. However, here the allegation was gross misconduct. Gross misconduct is defined as:
“An act, or series of actions, that fundamentally repudiates the contract of employment because the governing body is justified in no longer tolerating the presence at the School of the employee who commits the offence. It may justify summary dismissal.”
[43]The only example of gross misconduct that might be applicable here would be (f) in Appendix I:
“[…] wilfully ignoring responsibilities or refusing to carry out reasonable, lawful and safe instructions, thereby placing other members of staff and/or pupils in danger.”
[44]It may therefore be said that here, if the head took the view that staff and pupils were in danger, it might have been possible to bring the Claimant within the disciplinary rules, but, having considered the full text of the disciplinary proceedings and in the light of the facts as found by the Employment Tribunal, we express the preliminary view that it would be difficult to shoehorn the Claimant’s case within the scope of gross misconduct here, though not necessarily impossible, and neither counsel sought to urge us against that view. It would have been open, we note, within the procedure for the Headteacher to have asked for somebody else to investigate a matter, particularly where he had been extensively involved in an individual case, but it is recognised that it is usual that he would lead in all initial staff dismissal decisions. It seems to us therefore that the Tribunal was entitled to take the view it did as a matter of objective observation and without indicating the view it was taking was one that was its own view in substitution for that of the employer. We bear in mind as well that an Employment Tribunal is required to pass judgement upon the fairness overall of a dismissal; that often involves it expressing itself as to elements that have fed into that dismissal, and we do not see here any indication that this Tribunal, reading the Judgment as a whole, was taking the approach that it was setting out what it would have decided as opposed to commenting upon what the employer had done from its own perspective.[45]The second matter was the treatment of the decision to appoint the Headteacher as investigating officer. The decision was taken based upon advice given by the local authority that that was normal practice in primary schools. The Employment Tribunal said that that was poor advice and that the School should have engaged an external investigator; that is set out at paragraph 83. We do not think this is substitution; read fairly, we think this is a comment as to the fairness of the action that was taken. Having looked at the disciplinary procedure, it is plain that the Headteacher did have a choice that he might have exercised, and the reasons given for the Tribunal reaching the view are plain and clear. The Tribunal was entitled to consider that where a headteacher was investigating whether he himself had lost confidence, as he himself asserted, that he might have had somebody else investigate the issues.[46]Next, it was said that the Tribunal found that the Claimant might have behaved differently if appropriately warned. We have quoted from paragraph 77 already. We accept from Mr O’Dair that there was no relevance here within the Tribunal’s scope of decision‑making as to unfair dismissal in whether the Claimant would or would not herself have decided to cease her friendship with Mr Quinney. The Tribunal went so far as to say that she would have done. They expressed themselves as reaching that view on a balance of probabilities. The issue for the Tribunal was, as we see it, whether the employer acted fairly or unfairly in having regard to the reason it held for the dismissal. The School might be criticised for not giving the employee a chance, but it is in the failure to give a chance that fairness or unfairness must lie, not in whether the chance if offered would have been accepted, which is a judgment that has no part to play, as it seems to us, in determining the fairness of the employer’s conduct one way or the other.[47]However, we must place this within the context of the Judgment as a whole. So placed, we consider that this, which is in our view the only one of the four points raised by Mr O’Dair to suggest that there has been substitution that has some force, we consider that it does not on its own indicate that there has been here a substitution of view; rather, we see the comments as emphatically demonstrating the importance of offering a choice as opposed to concluding that the Tribunal itself would have done something that it was for the employer to do and for the fairness of what the employer did to be assessed.[48]Finally, the fourth matter was the suggestion in paragraph 90 that the Respondent had failed to deal with the problem arising from the Claimant’s relationship with Mr Quinney in an appropriate manner; the word “appropriate” was singled out for criticism here. If the word had been “fair” or “unfair”, there could have been no criticism. We do not think that by using the word “appropriate” the Tribunal was indicating that it for itself would have taken a particular step and therefore judging the Respondent by what it, the Tribunal, would or would not have done.[49]Ground 5, there being no ground 4, was the suggestion that there had been substitution in another way. The argument was that the Employment Tribunal should have accepted the Respondent’s case that someone in the Claimant’s position should not have needed to be told that a relationship with Mr Quinney was inappropriate; it was the very fact that she needed telling that had undermined the trust and confidence. In deciding that a warning was required, as set out at paragraphs 74‑77, the Tribunal had implicitly been adopting a view of the scope of the duties of a Deputy Head which would reasonably be expected of her. A warning would not be needed if somebody by virtue of their terms and conditions and job description was somebody who should have been very well aware of the risk; to them, it would be obvious. By not recognising that that was the case and by requiring a warning, the Tribunal was in error in failing to accept, in effect, the qualities needed by a Deputy Head that were for an employer alone, in this case, to judge and to set out.[50]We must remind ourselves that the ground of appeal here is substitution. We do not see that the Judgment of this Tribunal as being in effect to decide what the Claimant’s duties were and that they were such as not to relieve the employer of a duty to warn; we regard its approach to warning as being quintessentially one of fairness. It seems to us self‑evident that if an employer has examined the conduct of an employee and told them, in effect, that there is nothing wrong in them carrying on as they have been doing, a warning needs to be given, whoever the employee is, if the employer ceases on reasonable grounds to take that view.[51]Ground 6 was one of material procedural irregularity in the Employment Tribunal. What happened here justifies some complaint by Mr O’Dair, but it must be seen in context. In the ET1 the Claimant alleged that notes of internal meetings were unreliable, the notes having been made by the Respondent. The Respondent wished to be able to deal with that allegation and no doubt to consider what further witnesses or evidence it might bring to deal with the allegation. It was assured that the relevant matters would be dealt with in the witness statements to be filed by the Claimant. On the basis that that was so, the Tribunal made no order requiring particulars. When the Tribunal began it was obvious that nothing had been said in the witness statements about the inaccuracies that were alleged. Accordingly, Mr O’Dair objected, and the Employment Judge said that the Claimant would be limited in the cross‑examination that the Claimant could conduct of the School’s witnesses in respect of any alleged inaccuracy.[52]The hearing took place, so far as the oral evidence was concerned, over three days in one week, Monday to Wednesday. On one of those days suggestions had been put in cross‑examination by Mr Pretsell to the note‑taker concerned, who had refuted the suggestions put to him. No evidence was advanced in addition to the Claimant’s witness statement when she gave evidence‑in‑chief on this issue. Mr O’Dair was scrupulous not to cross‑examine upon it, for obvious forensic reasons. When he had concluded, very much at the end of the third day of oral evidence, the Tribunal itself then asked questions on just this point of the witness. Mr O’Dair objected; however, the answers had been given. He was permitted to cross‑examine, but his contention to us is that he should not have been put in that position, and what had happened amounted to a material procedural irregularity, in particular given that the Tribunal in part of its decision accepted the Claimant’s case, following the questions that had been asked by the Tribunal, that the notes were indeed inaccurate, as had been suggested.[53]It seems to us that the question asked by the Tribunal could only be asked without material procedural unfairness if any unfairness arising were capable of remedy. It seems to us regrettable that the position was reached as it was. However, it is on the issue of consequential prejudice and the ability of the parties to remedy what had taken place that we feel constrained to reject this ground of appeal. That is because Mr O’Dair could have asked, but did not, for time to consult other witnesses and consider what further evidence he might wish to bring. He tells us, frankly, that such witnesses as there might have been were able to tell him or those instructing him, albeit within the short time that was available between the Wednesday when questioning concluded and the Wednesday of the next week when submissions began, that they could not recall any material matter. He was entitled to cross‑examine further and not stopped from doing do.[54]Accordingly, as it seems to us, no substantial injustice was done. The point to which the question was directed does not, as we analyse the decision, appear critical to the result, but, in any event, further and separately, we consider that the prejudice that might have been caused was capable of remedy, despite the circumstances, and thus fairness was maintained. The Tribunal itself was asked to review its decision and concluded that it should do justice as best it could (see paragraph 44), observing that it is not bound by strict rules of evidence and was the master of its own procedure, and explaining why it took the stance it did. We do not accept that there was here such a material procedural irregularity as would justify the appeal being allowed.[55]The final ground, nominally ground 7, is that the Tribunal did not deal with a case made to it as to contributory fault. As is apparent from the citations we have already made from the Judgment, the Tribunal did consider contribution, but it considered only the contribution that might have been made by the Claimant’s conduct in continuing her relationship with Mr Quinney. What had been submitted on paper by Mr O’Dair, which Mr Pretsell accepts was fairly and squarely before the Tribunal, was that there was a second and distinct reason for arguing that there may have been some contributory conduct. Summarising, that was because it was that the Claimant made ill‑founded aspersions on the good faith of the Headteacher during the internal hearing which inevitably made it difficult for the Claimant to continue to work as his deputy. In paragraph 109 of its written closing submissions, the School had sought to rely upon specific matters identified by cross-reference to other paragraphs in submissions. As it happens, the cross-references are misnumbered; the reader was directed to paragraphs 75, 85, 87 and 89 to find the points relied upon. They were not there: but they were clearly identified at paragraphs 44, 45, 53, 55 and 56. The submissions in those paragraphs put substance upon the summary that there had been aspersions that were ill‑founded, to some extent intemperately made by the Claimant, which it was arguable would inevitably have had an effect upon the Headteacher’s view of the Claimant and, therefore, would, if blameworthy, have played a part in the dismissal that occurred.[56]The relevance of this to the decision of a whole is apparent from paragraph 87, where Mrs Donald had said that the way in which the Claimant and Mr Youlton had conducted themselves during the appeal hearing demonstrated to the majority of the panel that the relationship had been irreparably damaged. That relates to the conduct of the Claimant during that hearing. The Tribunal earlier in its assessment had mentioned that its view was that the greatest cause of the breakdown in trust and confidence was the Headteacher’s own behaviour, but, as we have observed, that does not exclude any other cause, one, though not necessarily the only other cause, perhaps being the behaviour of the Claimant herself. There is nothing in the Judgment that shows that the Tribunal dealt with this particular part of the argument. The argument was clearly raised, it was relevant and material, there were good ground for arguing it, whatever the result might have been, and it ought to have dealt with. Conclusion[57]It follows that, in our view, this ground is well made out, and the appeal on this ground should be allowed. A consequence will be that the case will have to be remitted to the Tribunal for determination. We shall hear counsel as to, first of all, any general observations they may have upon remission, and, secondly, as to the scope of the remission. Disposal[58]We have decided that the issue of contributory conduct in this respect is to be remitted to the same Tribunal for hearing. We do not accept that proportionate further evidence should be given. Our reasons are these. The ground was a point fairly raised on the evidence as it was. It was not considered by the Tribunal; it should have been. That has to be considered in the light of the evidence that was given. It is of course open to the parties to remind the Tribunal of the evidence that they heard, but it does not seem to us to be right with regard to the overriding objective that proportionate further evidence should be given to expand a point that ought to have been, and for all we know was fully, addressed in the evidence before the Tribunal below. For those reasons, we remit that issue; it is for the Tribunal to consider the extent to which, if at all, the points made by the Respondent affect the conclusion it reached as to contributory conduct and, if so, any necessary modification to the award that was made.