The EAT also distinguished this case from the Court of Appeal decision in Sarkar as this was a capability case and was not concerned with levels of misconduct.

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Appeal No. UKEAT/0002/10/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 October 2010

Before

HIS HONOUR JUDGE PETER CLARK

MR D J JENKINS OBE

MRS M V McARTHUR FCIPD

MS BERNADETTE LUCEY (APPELLANT)

GOVERNING BODY OF ALTRINCHAM GRAMMAR SCHOOL FOR GIRLS (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR MICHAEL MULHOLLAND (of Counsel)

Instructed by:
Linder Myers
Phoenix House
45 Cross St.
Manchester
M2 4JF

For the Respondent
MRS ZOE THOMPSON (of Counsel)

Instructed by:
Trafford MBC
Legal Department
Talbot Road
Stretford
Manchester
M32 0YU

UNFAIR DISMISSAL – Reasonableness of dismissal

Material finding by Employment Tribunal at paragraph 79 of their Reasons was supported by evidence. The facts of the present capability dismissal case materially different from those in Sarkar (Court of Appeal), relied on by Appellant.

Appeal dismissed.

1. This appeal was permitted to proceed to this full hearing at a preliminary hearing held on 29 March 2010 on two discrete points identified in the judgment of HHJ McMullen QC given on behalf of the EAT on that day. We shall return to those points later. The parties in this matter, which has been proceeding before the Manchester Employment Tribunal are Ms Lucey, Claimant, and the Governing Body of Altrincham Grammar School for Girls, Respondent.

1. The appeal is brought by the Claimant against the reserved judgment of a Tribunal chaired by Employment Judge Feeney, promulgated with Reasons on 15 September 2009, which dismissed her complaint of unfair dismissal brought against the Respondent, her former employer.

1. In short, the Claimant was employed at the school as a chemistry teacher from January 1993 until her dismissal on 4 July 2008. During that employment concerns were raised by pupils about her competence as a teacher. Finally she was dismissed on capability grounds. The Tribunal found that dismissal for that reason was fair.

1. In this appeal there is no challenge by the Claimant to the finding of substantive fairness; rather the appeal focuses on the two points identified by Judge McMullen. We shall consider each in turn.

1. First it is said that at paragraph 79 of the Reasons the Tribunal found facts which were not before the dismissing panel on 4 July 2008 and were not relied on by the Respondent. At paragraph 79 the Tribunal said:

"Procedurally the next question which arises is was the school fair in moving to a disciplinary procedure without completing the final stage of the capability procedure i.e. the 4 weeks assessment. We find it was in circumstances where it was understood that the Claimant would not return to complete that final stage and where occupational health had advised there would be no improvement in the Claimant's health until the disciplinary procedure had been concluded. This we find was a breach of the Respondent's adopted procedure but as the situation had reached an impasse, as the matter was conducted with transparency and there was sufficient evidence it did not make the overall process unfair. In the circumstances we find it was reasonable of the Respondent to move to a disciplinary hearing without any further observations and it was reasonable of the Respondents to continue with the capability procedure rather than to any other procedure such as dismissal due to sickness absence."

1. In this appeal Mr Mulholland, who did not appear below, the Claimant then representing herself, submits that the decision to dismiss lay with the initial panel of Governors who convened on 4 July 2008. Mrs Thompson fully accepts that proposition and, therefore, it was unnecessary for us to consider the provisions of the school's Staffing Regulations 2003, then in force, to which Mr Mulholland referred for the first time on appeal.

1. The point now taken by reference to paragraph 79 is that the panel members were not aware of the procedural requirement for a four-week assessment of the Claimant's capability as part of the procedure applicable to this dismissal. They had been advised that all procedural requirements had been met. Nor were they aware of occupational health reports and the Claimant's reluctance to return to the school relied on by the Tribunal at paragraph 79.

1. Mrs Thompson, who did appear below, has carefully taken us through the evidential trail. In particular the Claimant referred to occupational health reports in her statement to the disciplinary panel dated 16 May 2008. In her statement the head teacher Mrs Ross-Wawrzynski referred to the Claimant intimating to a friend and colleague that she was prevented from returning to work due to the capability issue being pursued by the school. That had formally commenced on 26 November 2007 when she received a formal written warning that failure to improve her performance could lead to her dismissal. She then went off sick never to return to work before her dismissal on 4 July 2008.

1. It is, we think, significant that that account given by Mrs Ross-Wawrzynski was not challenged when she was questioned by the Claimant either at the disciplinary hearing or at the Employment Tribunal hearing. It is also clear from the agreed note and Mrs Thompson's closing submissions below that she addressed the point that no four-week assessment was carried out as provided for in the procedure, noted by the Tribunal at paragraph 67 of their Reasons. In short, the Tribunal accepted that submission at paragraph 79. Despite that procedural defect overall the dismissal was fair, applying the provisions of section 98(4) of the Employment Rights Act 1996 to this capability dismissal. In these circumstances we reject the first ground of appeal

1. The second ground is founded on the Court of Appeal decision in [Sarkar v West London Mental Health NHS Trust ]()[2010] IRLR 508, a decision reached after this Employment Tribunal judgment was promulgated. Mr Mulholland submits that the circumstances in the present case are similar to those in Sarkar. Here a warning was given on 26 November 2007, and on the same factual basis the Respondent then moved to dismissal on 4 July 2008, the Claimant being off sick during the intervening period.

1. The Court of Appeal, overruling the EAT, upheld an Employment Tribunal decision in Sarkar that dismissal in that case was unfair. We see a world of difference between the case of Dr Sarkar and that of Ms Lucey. In Sarkar the Claimant was given a final warning for conduct which then formed the reason for dismissal. That inconsistency led to a finding that dismissal fell outside the range of reasonable responses.

1. This is a capability case; it is not, like Sarkar, concerned with levels of misconduct. It is acknowledged in the present case by Mr Mulholland that this capability dismissal was substantively fair. In Sarkar the point was that conduct which was treated by the Trust as relatively minor justifying a warning could not then be elevated to a degree of seriousness justifying dismissal on the ground that it amounted to gross misconduct.

1. It follows that we are not persuaded that either extant ground of appeal demonstrates any error of law on the part of the Tribunal. Consequently this appeal fails and is dismissed.