The facts and background to this appeal can be read with [previous EAT decision.]()

In this judgment Maurice Kay LJ sets out the facts then presents his reasoning on each of three challenges. On unfair dismissal he agrees with the employer's submission that the Burchell test has been satisfied, pointing out that the test had survived the challenge to it in the recent case of Turner v East Midland Trains, and the EAT should not have interfered with the findings of the ET. However on wrongful dismissal, while agreeing with the employer on several aspects of their submissions, he concludes that the ET had been perverse in finding that the claimant had in effect confessed to the alleged incident. What had been said by the claimant could only be reasonably interpreted to mean that dismissal would have been a drastic response if it had been proved that she committed the alleged act but the ET had substituted its own view. Finally, he declines the appeal on the remittance point, after referring to the guidance in Sinclair Roche Temperley, partly because of the interval since the last hearing - 2 years - and partly because further delay could be introduced.

_____________

Case No: A2/2012/1948

Neutral Citation Number: [2013] EWCA Civ 198

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(SUPPERSTONE J AND 2 LAY MEMBERS)

REF: UKEAT/0071/12

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 15/03/2013

Before :

Lord Justice Maurice Kay,  Vice President of the Court of Appeal, Civil Division

Lord Justice Toulson

and

Lord Justice Jackson

• - - - - - - - - - - - - - - - - - - - -

Between :

THE GOVERNING BODY OF CLARENCE HIGH SCHOOL AND NUGENT CARE SOCIETY (Appellants)

- and -

ZAINAB BOARDMAN (Respondent)

• - - - - - - - - - - - - - - - - - - - -

Mr Simon Gorton QC (instructed by Hill Dickinson LLP) for the Appellants

Mr Dijen Basu (instructed by Association of Teachers & Lecturers) for the Respondent

Hearing date : Thursday 14 February 2013

• - - - - - - - - - - - - - - - - - - - -

JudgmentLord Justice Maurice Kay :

1. This litigation has an unfortunate history. It concerns a claim for unfair and wrongful dismissal with no unusual features. Nevertheless, this appeal is the fifth substantive hearing to which it has given rise. Initially, Mrs Zainab Boardman succeeded in establishing unfair dismissal in the Employment Tribunal (ET) but an appeal by her former employer, Nugent Care Society (NCS) resulted in the Employment Appeal Tribunal (EAT) quashing that decision and remitting the case to a differently constituted ET for rehearing. On the rehearing, the ET dismissed the claims for unfair and wrongful dismissal. This time Mrs Boardman successfully appealed to the EAT and the case was remitted to a yet differently constituted court for rehearing. The third hearing in the ET has yet to take place because NCS has brought the present appeal to this Court, contending that the EAT fell into legal error when it interfered with the decision of the second ET. As yet, the parties show no sign of litigation fatigue.

1. The dispute arose out of an incident which occurred over five years ago. Mrs Boardman was employed by NCS as a teacher of mathematics in an independent school for secondary pupils with educational, behavioural and emotional difficulties. She had worked in the school for 13 years and was the longest serving teacher there. Her pupils were teenage boys whose behaviour could be very challenging. She is a slightly built woman with a naturally gentle manner whose work had never attracted criticism. On 1 February 2008 she was supervising a lunchtime detention of three boys. She was accompanied by a classroom assistant, Mrs Nicole Dunn. The boys became rowdy and insubordinate. One, DH, attempted to light a cigarette but was told that he could not do so. When their lunch arrived, the boys started to throw it around. What happened next is the subject of controversy.

1. According to Mrs Boardman, Mrs Dunn decided to leave the room and DH tried to leave at the same time. Mrs Boardman went to the door in an attempt to control the situation. As DH tried to get past her they both fell to the ground, as a result of which the heel of one of her shoes was broken. Mrs Dunn, on the other hand, completed an incident report less than an hour later. It states:

"Mrs Boardman and I stood at the door and Mrs Boardman was talking to DH. She was trying to calm him down but he started to get more unsettled. DH was talking to Mrs Boardman and said 'Fucking move – let me go'. Mrs Boardman was next to me on the left blocking the door handle and I saw DH touching the door handle and he said again 'Fucking move, let me go'. Mrs Boardman then picked DH up by his upper arm and threw him round the room and he bounced against the wall and looked shocked. Mrs Boardman went to him and said 'I'm sorry but you pushed me'."

1. Throughout the internal disciplinary proceedings and in the ET these conflicting accounts have undergone detailed analysis. Both women gave their accounts in both venues. DH did not give evidence in either but he did make a statement to the police in which he said he had been swung round by Mrs Boardman. His account was ultimately considered to be more consistent with Mrs Dunn's than with Mrs Boardman's. DH was not significantly injured.

1. At the internal disciplinary hearing, Mrs Boardman was found to be guilty of gross misconduct and was summarily dismissed. She pursued an internal appeal but it was dismissed.

1. It is unnecessary for me to refer in detail to the first ET decision or the first appeal to the EAT. At that stage the only claim was for unfair dismissal and it succeeded in the ET. The second ET decision, rejecting both unfair and wrongful dismissal claims, was by a majority. The employment judge and one lay member accepted the evidence of Mrs Dunn over that of Mrs Boardman, whereas the dissentient lay member preferred the evidence of Mrs Boardman. This has enabled her counsel to observe that in the two fact-finding ETs, Mrs Boardman's account has been accepted by four of six fact-finders.

The second EAT decision and the grounds of appeal

1. The second EAT decision (UKEAT/0071/12/CEA, 10 July 2012) concluded that the second ET decision was founded upon misapprehension of what was and was not undisputed fact and contained a perverse finding. The reasons for allowing Mrs Boardman's appeal are summarised in paragraph 34:

"In our judgment, the [ET] 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."

These were considered to be material errors of law which vitiated the rejection of both the unfair and the wrongful dismissal claims. The remittal was to a differently constituted ET.

1. The grounds of appeal to this Court seek to challenge the finding of errors of law in relation to both unfair and wrongful dismissal and further contend that the EAT also committed a legal error by remitting to a differently constituted rather than the same ET. I shall consider these grounds of appeal under three headings: (1) unfair dismissal; (2) wrongful dismissal; (3) remittal.

(1) Unfair dismissal

1. Where the reason for a dismissal relates to the conduct of the employee, the governing statutory provision is section 98 (4) of the Employment Rights Act 1996, which provides:

"… the determination of the question whether the dismissal is fair or unfair … -

(a) depends on whether in the circumstances (including 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 be determined in accordance with equity and the substantial merits of the case."

1. The approach of an ET was explained by Arnold J in British Home Stores v Burchell [1978] IRLR 379, at page 380, where he said:

"What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think that the employer at the stage at which he formed that belief on those grounds at any rate at the final stage at which he formed that belief on those grounds had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further."

1. This was the origin of the "band of reasonable responses" test. In [Turner v East Midlands Trains Ltd]() [2013] IRLR 107, Elias LJ said that an ET

"… has to ask whether the employer acted within the range of reasonable responses open to a reasonable employer. It is not for the Tribunal to substitute its own view for that of the reasonable employer. That principle has been enunciated in the line of cases beginning with British Home Stores v Burchell … and affirmed in cases such as Post Office v Foley [2000] IRLR 827, Sainsbury's Supermarkets Limited v Hitt [2003] IRLR 23, London Ambulance Service NHS Trust v Small [2009] IRLR 563 and, most recently, Orr v Milton Keynes Council [2011] IRLR 317."

1. In Turner, this Court considered a submission that, by reference to Article 8 of the European Convention on Human Rights and Fundamental Freedoms, the Burchell test should be abandoned so that the ET should act as a primary decision-maker in the assessment of unfairness rather than confining its role to one of review of the decision taken by the employer. The submission was rejected with the result that the Burchell approach survives.

1. In the present case the majority decision of the ET was explained in paragraph 39 of the judgment as follows:

"In short therefore the majority believe that in relation to the unfair dismissal Mrs Byrne and her panel had a genuine belief in the wrongdoing of Mrs Boardman. They had established the facts of that belief and that they believed it. There were reasonable grounds for the respondents to have in their mind reasonable ground upon which to sustain that belief, namely the clear allegation by Mrs Dunn and by DH (who was actually the victim) and both the respondent panels had carried out as much investigation into the matter as was reasonable. If there were anything wrong in the way that the first disciplinary panel dealt with the dismissal, the appeal panel over two days satisfied us that they had put right any deemed wrong in the first disciplinary hearing. We find … there was careful and conscientious investigation of the facts. The majority have therefore not substituted their view for the view of the dismissing officer. They have looked at the process overall and come to the conclusion that it was a fair dismissal."

The ET had in fact heard oral evidence from Mrs Boardman and Mrs Dunn and the majority concluded that Mrs Dunn was the more credible. However, the need to make such a finding derived from the fact that it was also considering a claim for wrongful dismissal in relation to which the ET is not confined to a reviewing role.

1. It is axiomatic that the EAT can only interfere with the decision of an ET if it identifies an error of law. As I have related, the EAT overturned the finding of unfair dismissal on the grounds that the ET had made "incorrect findings of fact on critical issues" by treating disputed matters as common ground and, in one respect, by making a perverse finding of confession.

1. The central submission on behalf of NCS in relation to unfair dismissal is that the criticisms expressed by the EAT were criticisms not of NCS but of the ET. They went to the issue of why the ET had rejected important aspects of the evidence of Mrs Boardman. They did not go to the real issue in the ET in relation to unfair dismissal which was whether NCS had satisfied the Burchell test.

1. In my judgment, this submission is correct. There is no reason to suppose that the NCS decision-makers either at the first disciplinary hearing or on appeal misunderstood the evidence or reached unsustainable conclusions about it in the way that the EAT found that the ET had. The ET permissibly found that the NCS decision-makers had a genuine belief in the wrongdoing of Mrs Boardman and that they had had reasonable grounds upon which to sustain that belief, such grounds being based on their preference for Mrs Dunn's evidence over that of Mrs Boardman. They had carried out a "careful and conscientious investigation of the facts". The investigation had been a reasonable one having regard to the seriousness of the allegation. There is nothing to suggest that, for example, the NCS decision-makers had considered that Mrs Boardman had confessed.

1. Ironically, other conclusions of the EAT confirmed that NCS had complied with the Burchell test. Grounds of appeal directed specifically to the sufficiency of the investigation were roundly rejected by the EAT. Most significantly, it rejected the complaint of insufficient investigation. In paragraph 43 of the judgment, the EAT said:

"We are not satisfied that the failure of (NCS) 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 (NCS) 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."

In this Court, there has been an attack on that conclusion by way of a Respondent's Notice. However, it disclosed no error of law.

1. For these reasons, I conclude that the EAT had no proper grounds for interfering with the decision of the ET that the dismissal was fair.

(2) Wrongful dismissal

1. Having rejected the unfair dismissal claim, the ET turned to the issue of wrongful dismissal. It said (at paragraph 41):

"The majority also concluded that Mrs Dunn was a more credible witness than Mrs Boardman and that the assault happened in the way Mrs Dunn describes and not in the way Mrs Boardman described it. We have had the advantage of seeing the way in which both women gave their evidence before us. We accept that both women were genuinely seeking to tell the truth but Mrs Dunn was much more impressive than Mrs Boardman when giving her account to the Tribunal and we concluded must have been when giving her account both to Mrs Byrnes and Mrs Shelton's respective panels. [The dissentient member] felt Mrs Dunn changed her version of the events several times; it went from grabbing his arms to lifting him off his feet. The majority felt that both Mrs Dunn and the claimant gave different accounts but Mrs Dunn was not swayed by cross-examination. She was adamant that because of the claimant's actions DH hit the wall and the majority felt her account written immediately after the event was likely to be accurate."

On the issue of wrongful dismissal it was appropriate, indeed necessary, for the ET to make its own findings of fact. The issue was whether Mrs Boardman had breached her contract of employment in such a way as to justify summary dismissal. Its conclusion was that she had because the incident had occurred in the way described by Mrs Dunn and had involved an assault on DH.

1. The EAT applied its conclusions about "unsustainable" findings of fact to wrongful dismissal. It said ( at paragraph 46):

"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 [Mrs Boardman] on the wrongful dismissal claim and to the findings made by the Tribunal in this regard."

It is now necessary to analyse the ET's findings of fact.

1. The first error attributed to the ET by the EAT related to this passage in the account of "undisputed facts".

"[DH] tried to get out of the door and there was some manhandling of him." (Emphasis added).

1. The EAT considered that to be "an incorrect finding on a critical issue". The case for NCS in this Court is that the EAT took an overpedantic approach to the language of the EAT. I accept that submission on this point. The relevant part of the ET's judgment represented the unanimous view of the three members, including the dissentient who was disposed to accept the evidence of Mrs Boardman. The EAT resorted to the Oxford English Dictionary in order to fix on a definition of "manhandling" as being "to handle roughly by striking or pushing". I accept that that is its usual meaning. However, I do not accept that that is what the ET meant. I consider that the EAT fell into the error described by Mummery LJ in Brent London Borough Council v Fuller [2011] ICR 806 (at paragraph 30):

"The reading of an employment tribunal decision must not … be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid."

That resonates here. Reading the judgment of the ET as a whole, I am convinced that it was not using the word "manhandling" in accordance with the dictionary definition. All three members undoubtedly realised that the fundamental issue of fact was whether Mrs Boardman had manhandled DH in the dictionary sense. It was an issue they resolved, differentially, by making findings about the conflicting evidence of Mrs Boardman and Mrs Dunn. The findings of the majority were not in any way conditioned by an assumption that it was common ground that Mrs Boardman had been guilty of rough handling. They know full well that she disputed that. The ET simply used the wrong word.

1. The second "undisputed fact" with which the EAT took issue was to be found in the next sentence in the judgment of the ET, immediately after the "manhandling" passage. It stated:

"Mrs Dunn was upset by the whole incident and asked permission to leave the room. Mrs Boardman gave her that permission."

The point is not to do with whether or not Mrs Dunn was upset. Another member of staff who encountered her outside the room corroborated that. However, there was a dispute between Mrs Boardman and Mrs Dunn about precisely when and in what circumstances (permission or not?) Mrs Dunn had left the room. In the internal disciplinary proceedings and in the ET the evidence of Mrs Boardman was that Mrs Dunn left of her own accord, saying "I've had enough. I'm leaving". The EAT concluded that the ET had made a serious error by treating Mrs Dunn's account of seeking and receiving permission as an undisputed fact. The relevant passage in the judgment of the EAT reads as follows (at paragraph 33):

"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 was 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."

By accepting this submission, the EAT found that treating Mrs Dunn's account of permission being sought and granted as undisputed fact was a serious error on a critical issue.

1. Put in this way, the point identified by the EAT has initial attraction. However, when one reads the judgment of the ET as a whole, the position becomes less clear. The findings of the majority include this passage:

"… there must certainly be some criticism of Mrs Dunn for leaving the room and leaving Mrs Boardman alone with the boys where the situation was volatile and there was also a young man on the sex offenders' register in the room."

That is consistent with a finding in favour of Mrs Boardman's account of the circumstances of Mrs Dunn's departure. Reconciling the earlier and later passages of the ET's judgment on this issue is difficult. Moreover, whilst the issue certainly went to the credibility of the respective historians, its resolution either way had a two-edged element. Nor is it clear that it played a significant role in the eventual conclusion of the majority which seems to have been based on their assessment of the two protagonists in the round, coupled with the fact that there was significant consistency between Mrs Dunn's evidence and DH's statement to the Police. It seems to me that the EAT was justified in being concerned about this aspect of the ET's judgment. Whether, standing alone, it would be sufficient to vitiate the decision on wrongful dismissal is more doubtful.

1. The third issue which concerned the EAT was whether the ET had erred by finding that Mrs Boardman had effectively confessed to assaulting DH. In a passage concerned specifically with credibility, the ET described Mrs Boardman as "confused and illogical at times" at times. It continued:

"Interestingly, when we read the appeal notes … we noted her criticisms which were these:

'You dismissed me, you sacked me, even if that happened, for a small throw of a child. I have been teaching for 30 years and you dismissed me.'

… [The dissenting member] thought this was a normal thing for the claimant to say when trying to defend herself. The majority disagreed. It sounded like a plea for mitigation not a denial."

The ET then referred to another passage in the record of the internal appeal, where Mrs Boardman was complaining that she was being treated more harshly than another employee had been in comparable circumstances and she said

"… being sacked or dismissed just for a small throw had ruined my career."

The ET stated:

"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."

The EAT characterised this as a perverse finding.

1. I share the view of the EAT on this issue. The majority of the ET took it upon itself to extract this part from the record of the internal appeal. As I understand it, it had not been submitted on behalf of NCS that Mrs Boardman had effectively confessed. Nor could it be fairly said that she had. From beginning to end she had denied wrongdoing. What she had said in the passages highlighted by the majority is not reasonably susceptible to any other interpretation than that she considered that dismissal was an excessive sanction for a single act, if proved, and having regard to her long unblemished record. The ET did not see or hear her give evidence on this issue. The majority simply proceeded, unsolicited, to form its own view. Having read the record of the internal appeal, I am satisfied that, applying the high threshold for perversity set out in Yeboah v Crofton [2002] EWCA Civ 794, at paragraphs 92-95, per Mummery LJ, no sensible tribunal could properly find that Mrs Boardman had confessed to wrongdoing. This is not a matter that can be disregarded as an immaterial error. The case on wrongful dismissal turned overwhelmingly on the issue of the credibility of the two main protagonists. A flawed finding of confession on the part of the alleged wrongdoer cannot be disregarded.

1. For these reasons, and particularly because of the ET's finding of confession, I consider that the EAT was right to allow Mrs Boardman's appeal on wrongful dismissal.

(3) Remission to a freshly constituted ET

1. The EAT, having found the decision of the ET to be legally flawed in relation to both unfair dismissal and wrongful dismissal, remitted the case to a freshly constituted ET. If, as I have concluded, only wrongful dismissal is now in play, such a remittal would be of more limited potential. Any damages would be significantly lower than compensation for unfair dismissal. The question now becomes: Was it legally erroneous to remit the wrongful dismissal to freshly constituted, rather than to the same, ET?

1. The issue of the constitution of an ET for a remitted hearing is often a controversial one. Guidance was given in Sinclair Roche & Temperley v Heard [2004] 1RLR 763, at paragraph 46. Relevant factors include proportionality; the passage of time; bias; and whether the original ET decision was "totally flawed". In the present case there is the additional factor that the remitted hearing will be a third trial of the facts.

1. It seems to me that it would be wrong to hold that the EAT erred in law in relation to the remittal. It is two years since the last ET hearing. A further hearing before a freshly constituted ET is listed later this month. We have no way of knowing how long it would take to reassemble the original constitution. It cannot be said that there was a legal error in the terms of the remittal. The further passage of time make them attractive for pragmatic reasons.

Conclusion

1. It follows from what I have said that I would allow NCS's appeal on the issue of unfair dismissal but not in relation to wrongful dismissal or the terms of the remittal. I greatly regret the fact that there will be a third hearing in the ET five years after the event. It will now be more limited in scope. It could, of course be avoided if the parties were to resolve the dispute by agreement. I would urge them to do so.

Lord Justice Toulson:

1. I agree.

Lord Justice Jackson:

1. I also agree.