Grounds (1) and (5): the "undisputed facts" and their significance

1. There were discrepancies in the evidence of the Appellant and Mrs Dunn as to what at various stages in the investigation and the disciplinary and appeal process they said had occurred. It is not necessary in this decision to set out the detail of those discrepancies. However what is clear is that at all times Mrs Dunn alleged that the Appellant had assaulted DH and Mrs Boardman denied that she had done so.

1. As a result of not interviewing the boys, the credibility of the evidence of Mrs Dunn and the Appellant was critical. The majority view was that "Mrs Dunn was more credible than Mrs Boardman" (para 19). In order to reach that conclusion it was incumbent upon the Tribunal first to identify what evidence was in dispute and what was not.

1. Yet at paragraph 2.7 of the Decision the Tribunal set out what they describe as "the undisputed facts" in relation to the incident. They say DH tried to get out of the door and (then these words) "there was some manhandling of him (more of which later)" (see para 7 above).

1. Mr Basu submits it was completely wrong to say that it was undisputed that there was some manhandling of DH. Mr Gorton submits this criticism is a simple misunderstanding of what the Tribunal meant by "manhandling". Mr Gorton points to the fact that "the undisputed facts" were agreed by the Tribunal as a whole. He contends the Tribunal plainly were referring to physical contact which both parties agree took place: the issue, he submits, was what was the nature of that contact. We disagree. We do not know what the minority understood by the use of the word "manhandling". However we consider that "manhandling", certainly in this context, connotes the deliberate use of force to move someone against their will. The material Oxford English Dictionary definition of "manhandle" is "to handle roughly by striking or pushing". The Appellant never accepted that she manhandled DH. We do not accept that we can disregard what Mr Gorton describes as an unfortunate use of language.

1. The question of manhandling, as Mr Basu contends, goes to the very heart of the allegation of assault for which the Appellant was dismissed.

1. Further, the significance of the Tribunal apparently not appreciating that at all times Mrs Boardman had denied that she had assaulted or manhandled DH is in our judgment highly material in the context of general observations the Tribunal made later in their decision on the credibility of Mrs Dunn and the Appellant. At paragraph 30 the majority said this:

"A word on credibility. The majority felt, unlike Mr Northam, that Mrs Dunn was a very good historian. She fielded and dealt with the questions in cross-examination extremely well whereas Mrs Boardman was confused and illogical at times. Interestingly when we read the appeal notes at page 204 and 205 we noted her criticisms which were these:

'(page 204) - You dismissed me, you sacked me, even if that had happened for a small throw of a child. I have been teaching for 30 years and you dismissed me.' "

The majority continue:

"31. The indication there by Mrs Boardman was that she was placing her thirty years of teaching against a 'small throw of a child'. Mr Northam thought this a normal thing for the Claimant to say when trying to defend herself. The majority disagreed. It sounded like a plea in mitigation not a denial.

32. At page 205 she goes on to say this to the appeal panel:

'Mrs Boardman interrupted by saying that, "a child teenager next and the pregnancy, (sic) and EB was involved with it... and being sacked or dismissed just for small throw had ruined my career (sic)'.

33. The majority had the real impression that Mrs Boardman, realising what she had done, was really saying that she should not be dismissed for this 'small throw' but could not admit that to others and certainly not to herself."

1. We do not think that the majority could have concluded that Mrs Boardman had effectively confessed unless they had misunderstood what she had said she had done. In our judgment the finding by the majority that what she said amounted to a confession was a perverse finding. It is clear from the appeal notes that Mrs Boardman was repeatedly saying that she did not assault DH (see, for example, pages 118 and 119 in the appeal bundle). Nothing she said could, in our view, be properly interpreted as an admission of any manhandling on her part.

1. We accept Mr Basu's submission that Mrs Boardman was making the point, that even if she were guilty of a "small throw" (this being the description that DH had given of what had happened), she should not have been dismissed for this, after thirty years of teaching, especially given, as she contended, the Respondent had not dismissed another person for something more serious.

1. Mr Gorton made clear that it was no part of his submissions on behalf of the Respondents before the Tribunal that there was any such confession made by the Appellant.

1. A further serious factual inaccuracy about which the Appellant complains is the finding "as an undisputed fact" that after the incident Mrs Dunn asked permission to leave the room and the Appellant gave her permission to do so.

1. In the disciplinary proceedings and before the Tribunal this point was very much in dispute. The Appellant's account was that Mrs Dunn had walked out of the room leaving her to deal with the three boys. The Tribunal noted at paragraph 2.11 of its decision that on 8 February 2008 the Appellant recorded "Mrs Dunn shouted, 'I've had enough - I'm leaving'". At no time did the Appellant accept that Mrs Dunn had asked her permission to leave and that she had given it.

1. We consider it most unfortunate that the Tribunal should have made this error in the light of the earlier Tribunal's failure to make proper findings on this issue and this Tribunal's criticism in that regard. Cox J said at paragraph 48:

"Further support for our decision to allow this appeal comes from Mr Basu's own, strong criticisms of the Tribunal's judgment in both resisting the appeal and pursuing the cross-appeal. Mr Basu pointed to the evidence before the disciplinary panel that Ms Dunn had left the room immediately after the assault. If her account was right, he suggests that this was a most unusual thing to have happened, and that this was clearly a relevant piece of evidence for the panel to take into account. Yet, at paragraph 21 the Tribunal clearly 'ducked the issue', as he puts it, and made no finding upon it."

1. We do not understand how the Tribunal could have found that it was an undisputed fact that the Appellant gave Mrs Dunn permission to leave the room. As Mr Basu submits "the nub of Mrs Boardman's argument was Mrs Dunn would not have left the room if she had really seen her assault a boy, given that the boys were being very unruly, swearing and trying to leave the detention room and given that one of the boys was on the sex offenders' register. If Mrs Dunn's version of events were right then there was a real risk to Mrs Boardman and risk to the boys of being 'picked up' and 'thrown around the room' by Mrs Boardman" (Appellant's skeleton argument, para 71).

1. In our judgment the Tribunal fell into error in making incorrect findings of fact on critical issues. In summary the Tribunal was wrong to find that it was not in dispute that (1) there had been manhandling of DH, and (2) the Appellant had given Mrs Dunn permission to leave the room after the incident. Further the Tribunal was wrong to find that the Appellant had effectively confessed to the assault on DH. Each of these findings are, in our judgment, unsustainable.

Ground (2): applying higher a degree of scrutiny to the Appellant's account

1. The majority, at paragraph 22 of the Tribunal's decision, stated:

"Mrs Dunn was consistent throughout when she said that Mrs Boardman had laid hands on DH and he had hit the wall. Mrs Boardman's account did not mention immediately after the event that she had fallen over and that the young man had fallen on top of her against the wall and the floor. If the incident had happened in that way she would have said so immediately."

1. Mr Basu disavows an allegation of bias. That being so, Mr Gorton asks what this criticism amounts to. It is clear that there were differences in the accounts given by both the Appellant and Mrs Dunn on various occasions. It is for a Tribunal to assess the credibility of the witnesses whose evidence it hears. The Tribunal was entitled to regard the Appellant's failure to state in her original version of events that she had fallen on the floor as something of relevance. We consider the real risk to be that the errors made by the Tribunal as to "undisputed facts" and what the majority considered to be in essence a confession affected their approach to the credibility of the Appellant's evidence as a whole.

Ground (3): the sufficiency of the investigation

1. Mr Basu's oral submissions before us focussed on the failure by the Respondent to obtain any account of the incident from the other two boys who were present in the classroom at the time of the incident or clarification from DH. The Appellant contends that the Respondent should have interviewed all three boys about the incident.

1. All three members of the Tribunal were concerned that the Respondent did not interview the boys after the safeguarding procedure had finished. The reason for not doing so in relation to the two boys is set out at paragraph 2.24 of the Tribunal's decision:

"Mrs Byrne explained that Marie Higgins, the investigating officer, had doubts as to whether the boys would need to be interviewed as they had agreed to be interviewed by the police but later refused to go to the police station to be asked questions. Marie Higgins consulted staff at the school and it was thought unlikely that the boys would co-operate again and not be able to give an accurate account of what happened even if they were prepared to co-operate. These were vulnerable boys with emotional difficulties it was said."

1. However we note that the Appeal Panel made a finding that "as part of the internal investigation, the investigating officer could have approached the two boys who were witnesses to the alleged incident to ascertain if they wished to make a statement for the disciplinary process".

1. One of the boys had told Mr O'Brien that "Miss has just ragged [DH]". If he had been asked that boy would have been able to shed light on what he meant by "ragged". We do not agree with the observation of the majority that "the question as to what the word 'ragged' meant, is a 'red herring'" (para 25). Whether it meant that the Appellant physically assaulted DH or was verbally abusive to him may have been of relevance.

1. As for DH, he had provided a statement to the police when formalising his complaint, a summary of which was made by Mrs Higgins and formed part of the material considered by the Respondent in their investigation.

1. The minority member considered that

"the Respondents should have interviewed the three boys and questioned them on what happened after the safeguarding process had been completed. He believes that Mrs Dunn gave a number of demonstrations which were different in relation to what happened in the room whereas Mrs Boardman was consistent. Mr Northam felt that the version of events given by DH was challengeable by the investigating officer. Firstly in the transcript of his interview with the police DH 'thought they would arrest him'. Secondly, when the investigating officer viewed the video of the interview when DH was alone with his mother he said he thought he would get in trouble. Thirdly, when the 'ragging incident' occurred he spoke to the other youth about being 'a grass' " (para 14).

1. We bear in mind that we must not substitute our view for that of the Tribunal. The Tribunal had regard to the guidance in Roldan. We are not satisfied that the failure of the Respondents to obtain any account from the other two boys or clarification from DH was outside the band of reasonable responses. Accordingly in our judgment the failure by the Respondent to interview DH and the other two boys about the incident did not of itself result in there not being a reasonable investigation and there is no basis on which this Tribunal can disturb the Tribunal's finding in that regard.

Ground (4): the ET misdirected itself in relation to s.98(4)

1. In his oral submissions Mr Basu focussed on paragraph 39 of the Tribunal's decision. The majority stated that they believed that the Respondent panels had carried out as much investigation into the matter "as was reasonable". However Mr Basu submits the third stage of the Burchell test requires the employer to have "carried out as much investigation into the matter as was reasonable in all the circumstances of the case" (emphasis added).

1. We are not persuaded that the omission of the words "in all the circumstances of the case" amounts to an error on the Tribunal's part. At paragraph 10 of its decision the Tribunal set out the test in Burchell correctly, noting that it was doing so because it "is often misquoted or ill-quoted". We reject the submission that the Tribunal misapplied the test by failing to consider whether there had been a reasonable investigation "in all the circumstances of the case".

The wrongful dismissal claim

1. The majority "concluded that Mrs Dunn was a more credible witness than Mrs Boardman and that the assault had happened in the way Mrs Dunn described and not in the way Mrs Boardman described it" (para 41). We consider that the errors we have identified in the findings of fact made by the Tribunal necessarily impact on the Tribunal's approach to the credibility of the Appellant on the wrongful dismissal claim and to the findings made by the Tribunal in this regard.

1. In our judgment for the reasons we have given we consider that the Tribunal made serious errors in its factual findings. The Tribunal failed to appreciate what was at all material times in dispute on the critical issue of what the Appellant had done. The Appellant had consistently denied that she assaulted DH. In our view the Tribunal's decisions cannot be sustained. Accordingly this appeal is allowed, and the matter must, once again, be remitted to a fresh Tribunal to be re-heard. We reject Mr Gorton's submission that the hearing should be conducted by the same Tribunal. In the light of our findings this would not be appropriate. The history of these proceedings leads us to repeat the observation of Cox J, that it would be helpful for the Regional Employment Judge to allocate this case for the purposes of case management and pre-hearing submissions by the parties, before that hearing takes place.