The claimant had been summarily dismissed for gross misconduct from her teaching role after it was found by a disciplinary panel that she had downloaded inappropriate images on her school computer. In the ET she argued that she had been unfairly dismissed on grounds of disproportionality in the light of her Article 10 rights and that she had been wrongfully dismissed because of provisions in her employment contract. The claims were rejected by the ET and their decision upheld in the EAT.

However, Sedley LJ allows this application as the EAT had found that that the claimant had defended her actions by saying that any children seeing the images would be enriched by them whereas he concluded that the claimant had instead stated they would not be enriched but would not suffer any harm. He also concluded that the Article 10 point was arguable to the extent that it should be properly addressed. He therefore allowed the application.

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Case No: A2/2009/1663

Neutral Citation Number: [2010] EWCA Civ 1189

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(HIS HONOUR JUDGE McMULLEN QC)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Tuesday, 12th October 2010

Before:

LORD JUSTICE SEDLEY

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HENDERSON (Appellant)

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LONDON BOROUGH OF HACKNEY & Anr (Respondents)

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(DAR Transcript of WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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The Appellant appeared in person.

The Respondents did not appear and were not represented.

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Judgment (As Approved by the Court)

Crown Copyright©

**Lord Justice Sedley:
**1. This is a renewed application for permission to appeal from the Employment Appeal Tribunal following refusal, for reasons which he gave in writing, by Maurice Kay LJ. Although such an appeal is not a second appeal for CPR purposes, it would seek to overset the judgment of a specialist appellate tribunal and so has to be approached with particular caution.

1. Ms Henderson was employed, and had been since April 2002, as a learning mentor at a school for girls aged 11 to 16. She had particular responsibility for students with "barriers to learning". I suspect that is the equivalent of what were called "special needs".

1. It was established in evidence that during May 2007 and possibly on other occasions too she had used the school computer in her office to receive, to view and to forward indecent images, some of which can be said to be no worse than what can be seen in the lower end of the press from day to day, some going beyond that. It was seen by another employee and an internal investigation was conducted, which perhaps unfortunately Ms Henderson did not attend.

1. The investigation resulted in the convening of a disciplinary panel. It held a full hearing at which Ms Henderson was present and was represented by Mr Owugah. He acted as her advocate, and clearly did so with considerable competence. The question arose and still arises whether Ms Henderson was prepared to accept that she had committed an error of judgment and would alter her conduct in the future, but irrespective of that the disciplinary panel upheld the allegations and summarily dismissed her for gross misconduct.

1. The claim which Ms Henderson brought in the Employment Tribunal claimed both unfair dismissal, predicated principally on the disproportionality of dismissal in the light of her Article 10 rights, and wrongful dismissal based principally, as it needed to be, on the contractual provisions governing her employment. The Tribunal rejected both.

1. What was clearly critical, and may well remain critical in this court, is that on the Tribunal's findings there was a real risk that one or more children for whom Ms Henderson was responsible might see the material on her screen or on the screens of colleagues to whom she forwarded it, by accident but nevertheless damagingly for reasons which it is unnecessary to elaborate. One can refer in this regard in particular to paragraphs 23, 24 and the end of paragraph 30 of the Employment Tribunal's determination.

1. The impressively reasoned decision of the panel of governors upheld the allegation that Ms Henderson had had "complete disregard in a school context, for the welfare of young people who could have access to the inappropriate material that was being circulated". **They noted that Ms Henderson had not raised any points in mitigation of this offence, which is undoubtedly the critical finding against her.

1. I am not going to go through the arguments in detail, for this reason. At a very late stage, and I make no criticism of him for it, Mr Owugah prepared and submitted on Ms Henderson's behalf a skeleton argument in support of this application, which I admit has changed my mind to this extent: that I was initially disposed to refuse permission to appeal on the ground that however the Employment Tribunal or the EAT had approached the case, it was inevitable that sooner or later the dismissal would be held to be both fair and lawful. The skeleton argument has caused me to think again about this and to wonder whether there is not a real possibility both that the Employment Tribunal erred in law -- indeed, there is a finding of the EAT that it did so in relation to wrongful dismissal -- and that the EAT itself has dealt too cursorily with the consequent void in the decision of the Employment Tribunal.

1. What the case came down to in this regard in the Employment Appeal Tribunal was that although the Employment Tribunal had plainly asked itself the wrong question about the lawfulness of the dismissal -- they had asked whether the dismissal decision lay within the bounds of reasonable responses, which is the fairness test and not the contractual test -- it was clear in the EAT's view either that the Employment Tribunal had itself taken the same view as the governors or that, had it applied its mind to that question it could, like any rational tribunal, only have come to an adverse decision toward Ms Henderson.

1. Mr Owugah has addressed this in paragraph 28 of his skeleton argument. Without reading it out, I simply say that this seems to me to be an argument deserving of attention in this court. A particularly damaging element of the EAT's findings was its view that Ms Henderson had defended her acts on the ground that seeing the images might be an enriching experience for any of the children in the school. In paragraphs 66 and 67, Mr Owugah submits, it seems to me at present with justification, that that was the converse of what Ms Henderson's evidence had been. She had suggested precisely that although a child would not be enriched by the experience, she would not suffer any harm. That too might be debatable, but it is a different debate from the one which appears to have received attention below.

1. Unfair dismissal was also argued and determined against Ms Henderson. The basis upon which it was contested was, as I have said, Article 10. That was a matter of forensic judgment which may have been narrower than it needed to be, but it is the basis upon which this court, like the courts below, has to approach the matter. Mr Owugah appreciates that if Article 10 is engaged, the information which it is sought to protect is at the bottom end of any scale of values, making suppression easier to advance under Article 10(2).

1. But the issue, again, seems to me now to be at least arguable to the extent, perhaps not that this court will determine it, but that it will expect it to be properly addressed below. I say no more because it seems to me that as much as needs to be said for present purposes is set out in the skeleton argument that is now before me. It has troubled me sufficiently for me to take the course that I propose now to take, which is to stand this application over to a full court with the appeal to follow if permission is granted. I have indicated to Ms Henderson that she will need representation. Whether Mr Owugah, who has studied law, will be permitted to speak for her, I do not know. She must make her own enquiries and applications in that regard. I simply record for those who may be concerned with it that this is a skeleton argument of high quality and that its author may well be of assistance to the court.

1. This case should be listed for a day, before three Lords Justices.

Order: Application granted.