Nugent Care v Boardman UKEAT/0277/09/JOJ
Appeal by employer, and cross-appeal, against finding of unfair dismissal for gross misconduct where the case turned on the adequacy of the investigation. Appeal allowed and remitted to fresh tribunal; cross-appeal dismissed.
Appeal No. UKEAT/0277/09/JOJ
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 25 May 2010
THE HONOURABLE MRS JUSTICE COX
MS K BILGAN
MISS S M WILSON CBE
NUGENT CARE (APPELLANT)
MRS Z BOARDMAN (RESPONDENT)
Transcript of Proceedings
For the Appellants
MR SIMON GORTON (of Counsel)
Messrs Hill Dickinson Solicitors
1 St Paul's Square
Old Hall Street
For the Respondent
MR DIJEN BASU (of Counsel)
Association of Teachers & Lecturers
Legal Services Department
7 Northumberland Street
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
Appeal by employers and cross-appeal by employee against Employment Tribunal's finding of unfair dismissal for gross misconduct. Case turned on the question of an adequate investigation and the fairness of the disciplinary procedure overall. ET found to have erred in its approach, to have substituted its own view of matters for that of the employers and to have failed to make adequate factual findings and adequately explain its reasoning. Appeal allowed. Cross-appeal dismissed. Matter remitted for re-hearing before fresh tribunal.**THE HONOURABLE MRS JUSTICE COX**
- The Claimant, Zainab Boardman, is a teacher of considerable experience. She has particular experience in the tuition of children with learning difficulties. Before her dismissal she was employed by the Respondents, Nugent Care, a charitable organisation which runs Clarence High School where the Claimant worked. It is a school which caters for young people with educational and behavioural difficulties.
- On 31 July 2008 the Claimant was summarily dismissed for a serious incident of gross misconduct, namely assaulting a pupil in the school detention room on 1 February 2008. She complained to the Liverpool Employment Tribunal that she had been unfairly dismissed, contending essentially that there had been an inadequate investigation of an allegation she strongly denied; that there was procedural unfairness; and, further, that no reasonable employer could have decided to dismiss her. The Respondent's maintained that there had been a full and a careful investigation; that the decision to dismiss her fell within the range of reasonable responses; and that the dismissal was therefore fair.
- Both parties were represented by counsel at the hearing on 1 April 2009, at which the Tribunal considered a bundle of documents and heard evidence from the Claimant and from the Respondent's Operations Manager, Eileen Byrne, the Chair of the disciplinary panel who decided to dismiss the Claimant.
- In their reserved judgment, dated 28 April 2009, the Tribunal upheld the Claimant's complaint and found her to have been unfairly dismissed. The Respondent now appeals against that decision following the order of Burton J, on the sift, that the appeal should go forward to a full hearing. The Claimant is also cross appealing on limited grounds which were permitted to proceed to a full hearing by Wilkie J following a hearing under rule 3 of the EAT Rules.
- It is a feature of this case that both parties are contending that the Tribunal's judgment is unsatisfactory, albeit in different respects. The hearing below was short, lasting just one day, and the Tribunal's judgment is pithily expressed. There is, however, no doubt as to the importance of the issues to both sides. For the Claimant it is difficult to imagine a more serious allegation and outcome for a teacher than dismissal for gross misconduct in such circumstances. For the Respondent the Tribunal's decision calls into question the integrity of their procedures when faced with a serious allegation of this kind, given its obvious sensitivities and its likely impact outside the school.
- Mr Basu, in the course of his submissions, referred us to the very recent decision of the Court of Appeal in [Salford Royal NHS Foundation Trust v Roldan]()  EWCA Civ 522 and to their citation, with approval, of the EAT's observations in A v B  IRLR 405 as follows:
"Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him."
We would add that it is also important for employment tribunals to conduct a very careful analysis of the facts and issues in such cases.
- The Tribunal briefly set out the essential chronology at paragraphs 4 to 9 of their judgment, as follows:
"4. Mrs Boardman was a teacher at the school and her dismissal was the consequence of an incident that occurred on 1 February 2008. On that date Mrs Boardman was, together with a teaching assistant, Ms Dunn, supervising three pupils on detention. On that day Ms Dunn produced an incident report which alleged that Mrs Boardman had assaulted one of those pupils.
5. Both the police and the local council thereafter became involved in the matter. The Respondents did not take any steps to investigate the alleged incident until, towards the end of April, the Crown Prosecution Service indicated they would be taking no further action.
6. Thereafter, an investigation was undertaken by Ms Higgins. On 16 May she interviewed Mrs Boardman and on 19 May she attended the local police station where she read the statement of the pupil who had allegedly been assaulted and also viewed a video recording of his interview with the police.
7. In addition, on 22 May Ms Higgins interviewed Ms Dunn and also Mr O'Brien, who entered the classroom shortly after the alleged assault.
8. As a consequence of those investigations it was decided that Mrs Boardman should be called to a disciplinary hearing, which took place on 25 July. Mrs Boardman gave evidence to the panel, as did Ms Dunn and Mr O'Brien. The panel conferred for two hours but then decided to visit the classroom in question. As part of that process Ms Dunn was asked to demonstrate how she said the incident had occurred.
9. The panel took the view that Mrs Boardman had indeed committed an assault on the child in question and that dismissal was the appropriate sanction. Mrs Boardman was notified of this by letter dated 31 July. She appealed against that decision but without success."
- On those facts the Tribunal found that the reason for dismissal was "clearly related to conduct" and therefore potentially fair. They then directed themselves that they had to ask whether the Respondent acted reasonably in treating that conduct as justifying the Claimant's dismissal. Curiously, the answer to that question was then addressed, in the remaining paragraphs of the judgment (paragraphs 11 to 43), not directly but by way of considering a number of criticisms advanced by the Claimant as showing the Respondent's behaviour to have been unreasonable, and making findings upon those criticisms.
- It is correct, as Mr Basu for the Claimant points out, that further references to the relevant legal test appear, in part, at paragraphs 16 to 18. They appear, however, without reference to either the relevant statutory provisions or established case law. Indeed, the judgement is wholly devoid of any reference to the law. Whilst we accept that it is not necessary for employment tribunals always to include a detailed recitation of the law, especially in the very familiar territory of unfair dismissal, it is important that any summary of the relevant principles is an accurate précis of the law to be applied. An accurate summary will always provide a helpful checklist for Tribunals when they are arriving at their reasoned conclusions.
- It is also important that the reasoned judgment shows that the correct legal principles have in fact been properly applied. As Mr Gorton for the Respondent points out, even an impeccable recitation of the law cannot rescue a decision if the Tribunal have then failed to apply that law correctly.
- The relevant passages at paragraphs 16 to 18 in this case are as follows:
"16…We remind ourselves of our remit. There was no conflict between the parties as to precisely what information the Respondents had before them as a consequence of the disciplinary process. The simple question we had to ask ourselves was whether, in the light of that evidence, the view taken by the Respondents (that an assault had occurred) was one that was reasonably open to them.
17. If we were to conclude that that judgment was beyond the range of views that a reasonable employer might take, then we might go on to speculate why the Respondents had acted unreasonably. However, that would be an academic issue, given that we would have concluded that the dismissal was unfair.
18. To put the matter another way, it is inevitable that any person or panel that comes to take a view on a subject will come with its own "baggage": papers will have been seen before the hearing itself and information gathered which almost inevitably will lead to the formation of a view, however tentative. The purpose of our enquiry was not to determine precisely how open minded the Respondents were, but rather to determine whether the view they actually and genuinely took was one that was reasonably open to them."
- In dealing with the issues in the way that they did, the Tribunal rejected the vast majority of the Claimant's criticisms as being without merit. They found essentially as follows:
(a) She had not been treated differently from a colleague, Mr Robb, when a similar allegation had been made against him, because the Respondent had found that he had not in fact committed the alleged assault.
(b) The Respondents were aware, when they made their decision, of the Claimant's allegation that Ms Dunn was motivated to report her because of the Claimant's involvement in the allegations against Mr Robb, with whom Ms Dunn was friendly.
(c) The fact that the Claimant was permitted to stay at school for the rest of the day of the incident was not relevant.
(d) There was no undue delay in investigating the incident since the Respondent had had to await the outcome of the police investigation and the decision not to prosecute the Claimant, taken at the end of April. The letter of dismissal was dated 31 July and the Respondent had acted with reasonable expedition in the circumstances.
(e) The disciplinary panel were made aware of the physical size of the pupil involved and were obviously aware of the diminutive stature of the Claimant. They could, therefore, form a view as to the likelihood of her performing the assault alleged, namely grabbing the pupil by his upper arms and throwing or shoving him against a wall.
(f) The panel were also aware of the fact that Ms Dunn had left the room immediately after the alleged assault and were, therefore, in a position to assess whether she would be likely to have done this if the alleged assault had in fact taken place.
(g) It was not in dispute that, as the panel were aware, English was not the first language of either the Claimant or Ms Dunn. The possibility, therefore, of misunderstandings or misuse of terminology was part of the factual matrix for the panel to consider. There was no lack of clarity as to the nature of the allegation being made against the Claimant.
(h) The fact that Paul O'Brien had entered the room immediately after the accident and stated that he could not believe it had occurred was of no probative value in the circumstances, and it could not have assisted the Respondent.
(i) The generally accepted, calm and stable character of the Claimant was known to and accepted by the disciplinary panel. In a curiously worded paragraph (paragraph 25) the Tribunal said this:
"It was accepted that this behaviour, if it was true, would be wholly out of character for Mrs Boardman. Mrs Byrne indicated this was not something she would consider favoured Mrs Boardman (and indeed indicated the contrary). In fact, it seemed debatable to us whether this assisted Mrs Boardman. The corollary of the assertion that it did would be that if she had a reputation for being aggressive, the Respondents should more easily accept evidence against her. That may well be the case where the aggression had resulted in, for example, formal warning i.e. where relevant findings have been made. Where, as here, it amounted to little more than a reputation, the situation would be less clear."
There was no further elucidation of this reasoning.
(j) Whilst it would be useful in the circumstances to find out if the pupil had made false allegations previously, the Claimant was a teacher at the school and was represented by her trade union. They could be assumed to be aware of this, if it was relevant, and to have raised it. In any event it was the report of Ms Dunn which resulted in the disciplinary proceedings being brought against the Claimant.
(k) The fact that Mrs Byrne denied in cross examination that the Claimant had, at any time, accepted the possibility that she had laid hands on one of the pupils, whereas in fact she had done so, was of no assistance. There was no dispute as to what the Claimant had said. The conclusions reached were either reasonable or not.
(l) Whilst the management's summing up at the conclusion of the disciplinary hearing was merely that there had been some physical contact between the pupil and the Claimant, this did not mean that the panel could not conclude, on the evidence before them, that a deliberate assault had taken place.
(m) Finally, in referring to the assault as being "unprovoked", Mrs Byrne was not denying that there had been bad behaviour on the part of the pupils in the room before the alleged incident. In any event that went to mitigation and was not relevant to the question whether the assault had in fact occurred.
- Having rejected all these criticisms advanced by the Claimant as amounting to unreasonable behaviour, the Tribunal then found that there were two substantial criticisms that could be levelled at the Respondent and their handling of this matter. Since these criticisms, and in particular the second of them, founded the Tribunal's conclusion that the dismissal was unfair, we shall set out their reasoning at paragraphs 35 to 43 in full:
"35. Firstly, the disciplinary panel (and indeed the appeal panel) did not view the video of the police interview of the pupil. There was no real explanation for that failure.
36. The Respondents did not seek to interview the three pupils themselves and one can understand that course of action. The situation might have been otherwise if they had been the only witnesses to the alleged incident but they were not. Given the nature of the establishment and the fact that the pupils had been through a criminal investigation carried out by the police, it was understandable that the Respondents would not wish to subject them to any further scrutiny.
37. However, the video was apparently available to the disciplinary panel. In circumstances where the essence of their function was to determine credibility, there seemed to be no sensible reason why they should deny themselves the opportunity to view it.
38. We should add that the Respondents were also criticised for failing to follow up a statement made by the pupil during an interval in the police interview were he referred to the possibility of "getting into trouble". It seemed to us that were any number of reasons why he might have made that statement, many of them completely consistent with the evidence he gave. We did not see why the Respondents should particularly wish to interview him in order to clarify that, in our view, innocuous comment.
39. Had the failure to view the video been the sole shortcoming, we might well have been inclined to conclude the dismissal was fair. Ms Byrne insisted to us that Mrs Boardman's evidence had been relatively vague and we can accept herself and her earlier statements on a number of occasions. If there had been no other reason to criticise the Respondents, they would reasonably have been entitled to prefer the evidence of Ms Dunn, supported by the relevant pupil, and conclude that an assault had taken place.
40. That, however, takes us onto the second ground of criticism which we think has merit, namely in relation to the classroom inspection that took place after the disciplinary hearing in the presence of Ms Dunn but in the absence of Mrs Boardman.
41. The Respondents' own disciplinary rules provide that if it is necessary to ask any person to clarify any point, the parties will be invited to return. Clearly, that did not occur in this case.
42. What in effect the panel were doing was receiving direct and potentially vital evidence that Mrs Boardman was not even aware of, much less permitted to comment upon. Looking at the matter practically, the simple explanation for the desire on the part of Mrs Byrne and the panel to inspect the classroom in this way was that, on the basis of the information they had received to that time, they were insufficiently certain of Mrs Boardman's guilt. It seems to us a sensible conclusion that the inspection and the demonstration by Ms Dunn provided the evidence that finally led them to that decision. It could not, in our view, be satisfactory or fair that that evidence should be received in the absence of Mrs Boardman in circumstances when she had no opportunity to comment upon it (or indeed demonstrate herself how she said the incident had occurred).
43. In short, we did not feel a reasonable employer could have felt safe in reaching the conclusion the Respondents did in the circumstances. We therefore conclude that the dismissal was unfair."**The Appeal**
- On behalf of the Respondent Mr Gorton submits that this was a reasonably straightforward case of misconduct dismissal. The Respondent received direct reports of the Claimant's alleged misconduct, investigated them and concluded, following hearings and an appeal, that the Claimant had committed the assault alleged. He contends that the Tribunal erred in failing to focus properly on its task in deciding the fairness of the dismissal; and in approaching it in a legally impermissible way, by overlooking critical parts of the evidence, failing to deal with substantial parts of the Respondent's evidence and case, failing in its fact finding role, erroneously substituting their own view for that of the Respondent and arriving at a perverse decision.
- We shall start with the submission of Mr Gorton as to the lack of detailed findings of fact by the Tribunal on important aspects of the Respondent's investigation into this serious allegation, the majority of which, as we understand it, were not really in dispute. He draws attention in particular to the following.
- In her original incident report made on the day, Ms Dunn stated that the Claimant had:
"picked X up by his upper arms and threw him around the room. X bounced against the wall and looked shocked."
- The Claimant was suspended from work on 4 February. An investigation was then carried out by Marie Higgins. This resulted in a detailed report to which was appended the following evidence: a record of her interview with Ms Dunn; a record of her attendance at Bootle Police Station, where she had had access to X's witness statement relating to the assault, and had herself viewed the video interview of X which formed the basis of that statement, both of which she had assessed and summarised in writing; an interview with and statement taken from the Claimant; and an interview with Paul O'Brien who had witnessed the immediate aftermath of the incident. All these documents were before the Tribunal and were plainly relevant to a consideration of the adequacy of the investigation and the fairness of the disciplinary process. Indeed the charge of assaulting X was based on Ms Higgins' investigation and report.
- At the disciplinary hearing on 25 July Ms Dunn attended and was cross examined by the Claimant's union representative, during which she gave a demonstration of the assault that she said she had witnessed. The Claimant denied the assault and explained that, although there was contact with X, that contact was caused by X pushing or falling on her, during the course of which the heel on her boot had broken.
- The disciplinary hearing took place on the school premises. During their subsequent deliberations and, as the Respondent accepted, unknown to the Claimant and in her absence, the panel had visited the detention room where the incident took place and had there asked Ms Dunn to demonstrate what she said she saw the Claimant do to X. The panel then concluded their deliberations and decided that the Claimant had committed the assault alleged by grabbing X by his arms and throwing him against a wall. They regarded this as a serious incident of gross misconduct, which merited immediate dismissal.
- The Claimant then appealed against that decision and an appeal panel of three met and heard evidence over the course of two days. Ms Dunn and Mrs Byrne were both called to give evidence and were cross examined. On the appeal, the Claimant complained about the fact that the disciplinary panel had visited the detention room in her absence and there asked Ms Dunn to demonstrate what she said she saw. This was canvassed with Mrs Byrne in evidence. Ms Dunn was cross examined by the Claimant's representative and, once again, gave a demonstration of how she said the assault had been committed. The appeal panel then considered all the grounds of appeal raised by the Claimant, which specifically included her complaint about the panel's visit to the classroom in her absence. They dismissed her appeal.
- At the Tribunal hearing the Chair of the appeal panel was apparently present and due to give evidence but the Tribunal ultimately did not hear from her, and we shall return to that point later on. However, the notes of the appeal hearing and the nine page letter to the Claimant, explaining in detail why her appeal was being dismissed, were all in the bundle before the Employment Tribunal.
- Against that background Mr Gorton submits that the Tribunal's conclusion, at paragraph 43, that a reasonable employer could not have "felt safe" in reaching the conclusion the Respondent did is simply unsustainable. He contends that the language used by the Tribunal shows that they erred in failing to ask themselves the right question, namely whether a reasonable employer could reasonably have concluded, upon adequate investigation, that the Claimant had committed the alleged assault. Further, not only did the Tribunal fail to direct themselves at any stage as to the classic sequence of questions to be asked, as established in BHS v Burchell  IRLR 379, but they also failed to apply that guidance when arriving at their conclusions.
- He submits that the Tribunal's decision is flawed by an absence of proper fact finding, as our recitation of the evidence above shows. Further, he submits that the decision is insufficiently reasoned, as required by Meek v City of Birmingham District Council  IRLR 250 and subsequent authorities. Mr Gorton suggests that it is entirely unclear how the Tribunal concluded that the disciplinary panel visited the classroom because they were "insufficiently certain" of the Claimant's guilt, and how it was that that visit and Ms Dunn's demonstration made them certain of it, as they appear to have found. This finding was, in any event, inconsistent with their finding that the Respondent could not have "felt safe" in so deciding. Further, there are no findings of fact concerning the appeal and no assessment of the disciplinary process as a whole, when considering the fairness of the dismissal overall.
- Mr Gorton submits that the decision that this dismissal was unfair was based, essentially, on irrelevant considerations, namely the failure by the disciplinary panel to view X's police video interview and, more particularly, the panel's visit to the classroom in the absence of the Claimant. In circumstances where the other evidence, in particular that from the eyewitness, Ms Dunn, would enable a reasonable employer reasonably to conclude that the Claimant was guilty as charged, these findings indicate that the Tribunal was substituting their own view as to what material they thought the panel should have had before them, rather than asking whether the panel acted reasonably in deciding as they did on the material which was before them. The Tribunal failed in any event to consider what happened at the appeal and to address the Respondent's case that, notwithstanding the disciplinary panel's visit to the site, the disciplinary process was fair overall.
- There is no dispute in this case as to the relevant legal principles. Having found that the Respondent had shown the reason for the Claimant's dismissal to be related to her conduct, the Tribunal then had to determine whether the dismissal was fair or unfair in accordance with section 98(4) of the Employment Rights Act 1996. As is well known, the determination of that question:
"(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall de determined in accordance with equity and the substantial merits of the case."
- The classic BHS v Burchell guidance has stood the test of time. It has recently been endorsed and helpfully summarised by Mummery LJ in London Ambulance Service NHS Trust v Small  IRLR 563, where he said that the essential terms of inquiry for employment tribunals in such cases are whether, in all the circumstances, the employer carried out a reasonable investigation and, at the time of dismissal, genuinely believed on reasonable grounds that the employee was guilty of misconduct. If satisfied of the employer's fair conduct of the dismissal in those respects, the Tribunal then had to decide whether the dismissal of the employee was a reasonable response to the misconduct.
- It is also well established that, in conducting that inquiry and analysis, the Tribunal must not, at any stage, substitute their views for those of the employer. They must not, therefore, substitute their decision as to what was the right course to adopt for that of the employer, in relation either to the investigation and disciplinary process or to the decision to dismiss. The Tribunal are not conducting a rehearing of the merits or an appeal against the decision to dismiss. The focus must therefore be on what the employers did and whether what they decided, following an adequate investigation, fell within the band of reasonable responses which a reasonable employer might have adopted. The Tribunal should never "descend into the arena" (see Rhonda Cvnon Taff County Borough Council v Close  ICR 1283 CA).
- In relation to disciplinary appeals it is clear that a Tribunal is required to consider the fairness of the whole disciplinary process when assessing the fairness of a dismissal. In Taylor v OCS Group Limited  IRLR 613 CA, Smith LJ, giving the judgment of the court, referred at paragraph 30 to the words of Lord Bridge in West Midlands Cooperative Society Limited v Tipton  ICR 192:
"Both the original and the appellate decision by the employer, in any case where the contract of employment provides for an appeal and the right of appeal is invoked by the employee, are necessary elements in the overall process of terminating the contract of employment. To separate them and consider only one half of the process … is to introduce an unnecessary artificiality …"
- Later on, at paragraph 43, she said this in referring to previous authorities in this area:
"It seems to us that there is no real difference between what the EAT said in Whitbread and what it said in Adivihalli. Both were consistent with Sartor. In both cases, the EAT recognised that the ET must focus on the statutory test and that, in considering whether the dismissal was fair, they must look at the substance of what had happened throughout the disciplinary process. To that extent, in our view, the EAT in the present case was right. However, in Whitbread, the EAT used the words 'review' and 'rehearing' to illustrate the kind of hearing that would be thorough enough to cure earlier defects and one which would not. Unfortunately, this illustration has been understood by some to propound a rule of law that only a rehearing is capable of curing earlier defects and a mere review never is. There is no such rule of law."
- She explained the good reasons why there should not be any such rule of law and then said as follows at paragraph 47:
"Although, as we have said, both Whitbread and Adivihalli contain a correct statement of the law, it would be advisable for Whitbread not to be cited in future. The use of the words 'rehearing' and 'review', albeit only intended by way of illustration, does create a risk that ETs will fall into the trap of deciding whether the dismissal procedure was fair or unfair by reference to their view of whether an appeal hearing was a rehearing or a mere review. This error is avoided if ETs realise that their task is to apply the statutory test. In doing that, they should consider the fairness of the whole of that disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care. But their purpose in so doing will not be to determine whether it amounted to a rehearing or a review but to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open mindedness (or not) of the decision maker, the overall process was fair, notwithstanding any deficiencies at the early stage."**Discussion and Conclusions**
- In resisting the appeal, Mr Basu fairly and realistically acknowledged that this was an unsatisfactory judgment in a number of respects, and that the Tribunal's findings were unclear and, in part, unhappily phrased. He sought, nevertheless, to persuade us of the following: (1) that the Tribunal did set out the applicable test correctly in paragraphs 16 to 18, where they recognised their limited remit and stated that their function was to review the employer's disciplinary process and decision making; (2) that the language used in paragraph 43, that a reasonable employer could not have "felt safe" in concluding as the Respondent did, was simply a shorthand way of explaining that the conclusions reached by these Respondent fell outside the range of reasonable responses open to a reasonable employer in all the circumstances; and (3) that the Respondent's perversity challenge can only succeed in circumstances where an overwhelming case is made out that no reasonable Tribunal could have reached the decision they did. That is not the case here. There were two serious irregularities in the disciplinary process, which the Tribunal were entitled to regard as significant in their decision to uphold the dismissal as unfair.
- We have considered these submissions with care but, save in respect of the perversity challenge to which we shall turn later on, we must reject them. There is, in our view, considerable merit in Mr Gorton's submissions as to the inadequacy of the factual findings by this Tribunal. We have been taken to a number of the documents which relate to the investigation, the disciplinary hearing and the appeal. Whilst we recognise that here is no obligation upon a Tribunal to make findings on all the evidence they have heard, they must make clear findings of fact on those matters which are relevant to the issues they have to determine. In this case the adequacy of the investigation, the fairness of the disciplinary procedure and the reasonableness of the decision to dismiss in the circumstances were all very much in issue.
- In circumstances where the focus of the Tribunal's inquiry is the reasonableness of the employer's actions and decision making, we are all troubled by the absence in the decision of any reference to the material gathered in the course of the investigation; to the matters which were canvassed at the disciplinary hearing and on appeal; to what it was that the disciplinary panel actually believed to be the misconduct of which this Claimant was found to be guilty, and upon what basis, at the time the decision to dismiss her was made; and to the appeal.
- Save for a brief, passing reference to the fact of an appeal and the failure of the appeal panel to view the video interview of X, there are no findings at all as to what was canvassed on appeal. Since the appeal panel dealt expressly with the Claimant's complaint about the disciplinary panel's visit to the classroom, these were facts which were clearly relevant to the fairness and reasonableness of the process overall and to the reasonableness of the decision to dismiss.
- Similarly, we agree with Mr Gorton that there is a lack of evidence based reasoning for the conclusion that the visit took place because the panel were "insufficiently certain" of guilt, as to how the visit cured that, if they considered that it did, and as to how that was consistent with a finding that no reasonable employer could have "felt safe" as to guilt in the circumstances. Since this matter was instrumental in the conclusion that this dismissal was unfair, we regard these as significant omissions.
- These difficulties seem to us to have been caused, at least in part, by the way in which the Tribunal dealt with the evidence. In considering it indirectly and in a fragmentary way, through criticisms which had been advanced by the Claimant as part of her case, we consider that he Tribunal lost sight of the focus of the inquiry required of them. They should have been concentrating on what the panel did and why, whether it was reasonable, and how that affected the fairness of the process and of the dismissal.
- As we have already said, we are all troubled by the absence of any findings of fact relating to the appeal and to what was canvassed there, and to the appeal panel's conclusions as to the impact of the site visit, in the Claimant's absence, on the fairness of the process.
- There is a difficulty here. There is a dispute between the parties as to whether the Respondent relied on the appeal and adduced any evidence about it below. The picture is unclear. Mr Basu, who did appear for the Claimant below, submits that they did not rely upon it. He states that they did not call the Chair of the appeal panel, address the appeal documents or draw the Tribunal's attention to them in the course of their brief submissions. He submits that it is too late now for them to seek to rely upon it in this appeal in criticising the Tribunal's decision.
- Mr Gorton, who did not appear below, points out correctly that the Respondent pleaded reliance on the appeal process in their amended grounds of resistance. He points out too that all the documents and a witness statement from the Chair of the appeal panel were included in the Tribunal bundle. Mr Gorton's understanding was that the Employment Judge may have indicated at some stage that it was not necessary for the Chair of the appeal panel to be called. Mr Basu cannot recall any such thing.
- We cannot resolve this dispute on the material before us but we agree with Mr Gorton that he cannot be prevented from relying on the appeal unless we can be satisfied that the Respondent abandoned reliance on the appeal below. There is certainly nothing to support that suggestion and indeed Mr Basu does not suggest that there is. We shall therefore have regard to it for the purposes of considering the issues arising on this appeal.
- The law on this is clear and well established, and we have referred to relevant authority above. The Tribunal has to consider the whole of the dismissal process, including the appeal, when assessing the fairness of the dismissal. Not to do so is an error of law and, for the reasons we have given, we are not persuaded that they did do so. We should point out that we were taken, during the course of submissions, to various passages in the appeal documents which indicate that they clearly raised matters of relevance to the questions which the Tribunal had to determine.
- In addition to the inadequate factual findings and reasoning that we have identified, we consider that the Tribunal's failure to set out clearly the BHS v Burchell steps, and to address them in sequence, led them into further error in arriving at their conclusions. Whilst we accept that elements of the test appear at paragraphs 16 to 18, we look in vain for a clear direction as to the issues which must be addressed. More importantly we cannot be satisfied, given the Tribunal's reasoning and their unfortunate use of language, that they were actually addressed. References to the Respondent being "insufficiently certain" of guilt and to whether a reasonable employer could have "felt safe" in finding guilt seem to us to be redolent with substitution of the Tribunal's view of matters, rather than indicating an assessment of the reasonableness of the Respondent's actions and conclusions.
- As Mr Gorton observed, certainty of belief and questions of safety of that belief have no place in the jurisprudence relating to misconduct dismissals. Whilst some leeway is to be accorded to a Tribunal, in respect of their choice of language, we are not persuaded, when viewed together with our other concerns about this decision, that these phrases can safely be read merely as shorthand for the questions they were required to address.
- In relation to the two criticisms of the Respondent upheld by the Tribunal, the failure by the disciplinary and appeal panels to view X's police video could go only to the question of reasonable grounds for the Respondent's belief. This therefore fell to be assessed in the context of the other evidence before the Respondent, including the statement of Ms Dunn and the investigation report. The investigation report contained a summary and assessment of X's evidence in the video and in his statement, neither of which was challenged as containing an account different from that which he had already given. The Tribunal do not however explain how this fed into their examination of the Respondent's reasonable belief. References to it being essential to assess credibility again suggest substitution, rather than a focus on what material the Respondent actually had and whether they acted reasonably in acting upon it.
- We make the same point in relation to the site visit which, as it appears from the judgment, proved crucial in tipping the balance for the finding of unfair dismissal. In circumstances where the Tribunal made no substantive findings as to why this visit was made, what happened, how it effected the panel's belief as to the Claimant's misconduct, the reasonableness of their decision, and to what extent, if at all, consideration of this point at the appeal cured any defects, we consider that the Tribunal erred in failing to focus on the right inquiry.
- For all these reasons, therefore, we consider that the Tribunal's decision was arrived at in error and cannot be sustained.
- However, we were not persuaded that there was any merit in Mr Gorton's perversity challenge. He sought to persuade us that, given the material that was before the Tribunal, it was perverse of them to find that no reasonable employer could have concluded that the Claimant had committed this assault. We reject that submission. Given the inadequacy of the factual findings, the paucity of reasoning we have referred to and the points made by Mr Basu in resisting the appeal and pursuing his cross appeal, to which we shall turn shortly, this is not a case where it could properly be said that there was only one decision reasonably open to the Tribunal on the evidence. We therefore reject the appeal on this ground.
- 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.
- Mr Basu also criticised the Tribunal's finding, at paragraph 27, that Mr O'Brien's feelings to what might have happened in the room when he entered had no probative value whatsoever. He criticises what he suggests is the Tribunal's mis description of Mr O'Brien's evidence, which was in fact recorded as a statement that he felt he was dealing with a boy making a false allegation. Mr Basu submits that this too was plainly relevant to the panel's reasoning, yet the Tribunal both mis described it and then failed to factor it into their decision making.
- These points, in our view, only serve to emphasise on other grounds the shortcomings being relied upon by Mr Gorton in support of the appeal, which we have agreed must be allowed.
- In pursuing his cross appeal, Mr Basu's submission is that, even if he is unsuccessful in resisting the appeal, the three grounds upon which the cross appeal was allowed to proceed are so strong that we should conclude, applying the principles in Dobie v Burns International Security Services (UK) Ltd  ICR 478, that the Tribunal's conclusion that this was an unfair dismissal was nevertheless plainly and unarguably right.
- This was a bold submission and we reject it.
- We acknowledge, in doing so, that the points he makes seem to us to have some force. He relies on the following: (1) The evidence as to the Claimant's calm, stable personality, her quiet and positive approach to the children, and yet the curious finding of the Tribunal, at paragraph 25, that this did not assist the Claimant. (2) The Tribunal's finding at paragraph 31 that they were not assisted by Mrs Byrne's disputing that the Claimant had acknowledged that she may have laid hands on the pupil, in the course of the physical contact that she accepted had occurred. He submits that both these matters should have been factored into their decision making. (3) The Tribunal's finding at paragraph 39 that the Claimant had contradicted herself on a number of occasions. This, he submits, is a serious finding to make, in particular in relation to someone for whom English is not their first language. Yet it was unexplained in the judgment. Further elucidation, through questions asked by this Appeal Tribunal, has proved less than illuminating. We agree that it is a matter of concern that the Tribunal's note of the Claimant's cross examination, which we are told lasted almost one hour, was extremely brief, consisting of only eight lines. It did not, in any event, support the finding at paragraph 39.
- In our view, however, none of these criticisms comes anywhere near satisfying the Dobie test that the decision, albeit arrived at in error, was plainly and unarguably right. They serve only to emphasise that, regrettably, both parties to this dispute have cause to be dissatisfied with the Tribunal's judgment. For those reasons we dismiss the cross appeal.
- We should mention finally a further, discrete ground of appeal, which was advanced by Mr Gorton as follows. He submitted that the Tribunal also erred in law in failing to consider: (1) section 98A(2) of the Employment Rights Act 1996; (2) the issue of contribution; and (3) the question of a Polkey reduction.
- The matter is not straightforward, however. Although Mr Gorton submits that all these matters were raised below by the Respondent, Mr Basu, who appeared below, does not accept this.
- There is no material before to enable this dispute to be resolved. Certainly, in relation to section 98A(2), the onus of proof being on the employer, we note that it was not pleaded in the Respondent's ET3. Nor are we persuaded, on the basis of the limited argument we heard in the course of this appeal, that the Tribunal were bound as a matter of law to consider section 98A(2) of their own motion in this case, as Mr Gorton sought to persuade us.
- The same applies, in our view, to questions of contribution and Polkey. It is, in any event, unclear to us whether the Tribunal were intending to deal with both liability and remedy at this hearing, and their judgment is silent upon the point. Given this confusing picture we are not persuaded that the Tribunal can properly be criticised for failing to make findings upon these matters and we therefore reject that ground of appeal.
- For the reasons we have given this appeal is allowed, and the matter must now be remitted to a fresh tribunal to be re-heard. Given the difficulties and disputes between the parties to which we have referred, we consider 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.
Published: 30/06/2010 16:35