The claimants were drama teachers at a secondary school. Their students, as part of their GCSE course, were required to produce and perform a play to members of the school and to parents. The play performed was sexually explicit in nature and led to complaints from parents and other students. On the advice of the local authority's safeguarding officer, the school decided not to interview the students involved in the play because of his apprehension of further harm being caused to the children. The claimants were dismissed. The ET found that the dismissals were unfair primarily because they felt that the respondent should not have accepted the advice of the safeguarding officer regarding the potential risk to students and thus there was no proper investigation. Other reasons included 1) There was no "cogent evidence" before the respondents that what the claimants had allowed their students to perform had given rise to a risk of physical, moral or psychological harm; and 2) although the claimants had failed properly to supervise the students in rehearsals such that the performance remained within acceptable boundaries, that shortcoming was not enough to justify dismissal. The claimants appealed.

The EAT upheld the appeals. The ET had failed to take account of a relevant factor (the safeguarding officer's prior relevant experience) and took account of an irrelevant factor (the reaction, at the time, of members of the audience and some of the students who had taken part in the performance).  They had failed, when considering whether or not there had been a reasonable investigation, to have regard to all relevant factors.  There were also indications that the Tribunal had adopted a substitution mindset.

_________________

Appeal No. UKEAT/0155/12/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 20 & 21 September 2012

Judgment handed down on 23 October 2012

Before

THE HONOURABLE LADY SMITH; MR B R GIBBS; MRS D M PALMER

(1) X COUNTY COUNCIL; (2) THE GOVERNING BODY OF Y SCHOOL (APPELLANTS)

(1) MISS D; (2) MS C (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellants
MR RICHARD HIGNETT (of Counsel)

Instructed by:
Freeth Cartwright LLP Solicitors
One Colton Square
Leicester
LE1 1QH

For the Respondents
MR OLIVER HYAMS (of Counsel)

Instructed by:
Robinsons Solicitors
St James Court
Friar Gate
Derby
DE1 1BT

**SUMMARY**

UNFAIR DISMISSAL – Reasonableness of dismissal

Unfair dismissal. Drama teachers dismissed in relation to permitting GCSE students to stage a performance depicting sexual abuse including rape, sexual intercourse, sexual assault, oral sex, masturbation, and group sex. Tribunal's finding of unfair dismissal held to be perverse; the Tribunal had, in finding that employers should not have accepted advice of the local authority's safeguarding officer regarding the potential risk to students, failed to take account of a relevant factor (his prior relevant experience) and took account of an irrelevant factor (the reaction, at the time, of members of the audience and some of the students who had taken part in the performance). They had failed, when considering whether or not there had been a reasonable investigation, to have regard to all relevant factors. There were also indications that the Tribunal had adopted a substitution mindset. Appeal upheld and claims remitted to a freshly constituted Employment Tribunal.

**THE HONOURABLE LADY SMITH****Introduction**

1. This is an employer's appeal from the judgment of an Employment Tribunal sitting at Leicester, Employment Judge Sneath presiding, finding that the Claimants, school teachers who were dismissed for gross misconduct, were unfairly dismissed.

1. We will, for convenience, continue to refer to parties as Claimants and Respondents. The First Respondent was the local education authority and the Second Respondent was the governing body of the school which employed the Claimants.

1. The Claimants represented themselves before the Tribunal and were represented by Mr Hyams of counsel, before us. The Respondents were represented by Miss J Connolly, of counsel, before the Tribunal and by Mr Hignett, of counsel, before us.

**Background**

1. The Claimants were drama teachers. Ms C was head of the drama department. They were responsible for supervising the writing, rehearsal, production and performance by 9 groups of GCSE students aged 15 and 16 years of a production for examination purposes. The students prepared for the performance over a period of three to four months and spent about six to eight weeks in rehearsal. In the case of two of the groups, which were Miss D's groups, material was included in their production which was age inappropriate and included graphic descriptions of:

(a) sexual intercourse;

(b) rape;

(c) oral sex between a father and daughter;

(d) father/daughter sexual abuse;

(e) sexual abuse between a mother and daughter;

(f) familial sexual abuse; and

(g) group sex in a family.

1. The Claimants were dismissed, by letters dated 30 July 2009 advising them that they were dismissed on the following grounds:

"Allegation 1

While under your supervision pupils produced and acted in a Showcase production for their GCSE examination that included material that was age inappropriate …..¹

The Committee found your actions constitute gross misconduct, the sanction for which is summary dismissal.

**Allegation 2**

That in supervising the pupils in these productions, you failed in your duty of care for the children in that:-

(a) you failed to apply appropriate boundaries to the children in respect of their choice of material for the production.

(b) you failed to prepare pupils adequately for the possible psychological impact on them of acting in productions containing challenging material.

........

…....

The Committee found that Allegations 2(a) and (b) were proven and that your actions constitute gross misconduct, the sanction for which is summary dismissal.

**Allegation 3**

You acted in a manner likely to bring the school into disrepute by supervising a public performance containing the above scenes without adequately preparing either the Senior Management in the school or the audience for the type of production they would be watching.

The Committee found your actions constitute gross misconduct, the sanction for which is summary dismissal.

………..

**Allegation 5**

That you acted in an unprofessional manner in respect of your failure to bring to the attention of Senior Management the nature of the material you were considering.

The Committee found your actions constitute gross misconduct, the sanction for which is summary dismissal.

……………

The Committee has, as is required by the ….School Disciplinary Procedure considered whether any alternative to dismissal may be appropriate. However, the standard of your professional conduct has fallen so significantly below that expected of a teacher that the Committee is not satisfied that the school can continue to have trust and confidence in you. Therefore no alternative to dismissal is appropriate."

1. Attached to the dismissal letters was a document headed "Findings of the Disciplinary Committee" containing the reasons for the Committee having decided as it did in relation to the above allegations.

1. The "Showcase" production referred to was a performance by the students of their GCSE piece to which friends and relatives were invited. It took place on 11 March 2009. Ms C was responsible for the invitations. She failed to warn invitees, in the invitations, about the disturbing nature of the material that they would be seeing. She accepted, at the Tribunal hearing, that she ought to have done so although throughout the disciplinary process, neither Claimant accepted that they had done anything wrong. She also failed to warn the headteacher, Mrs T, about it. Mrs T remained unaware of the content until after the Showcase production, as did the senior management team.

1. GCSE drama productions had previously contained sexual material; in 2007, there were two scenes with sexual content². However, it is plain that the Showcase production in 2009 involved a multiplicity of sexual scenes and that they were considerably more graphic in depiction. Prior to 2009 some general concerns had been expressed by the Examination Board particularly in relation to monitoring the audience.

1. Complaints were made by some parents and students to Mrs T, and she requested that a recording be made of the production, which it was. The principal complaint came from a parent who described not only her own distress but the distress of others including a girl who was sobbing after the performance and a boy and one of the actors who were vomiting as a result of their distress. At Miss D's disciplinary hearing³, she agreed that there was no significant disparity between what had been depicted at the Showcase and what was on shown on the DVD.

1. Mrs T sought advice from the First Respondent as a result of which Mr S, their Safeguarding Manager for Education, attended at the school and viewed the DVD. Before referring to his views we turn to an important issue, namely Mr S's experience and qualifications. They are specified in a written statement which he provided for the Second Respondent (and was referred to in his witness statement for the hearing before the Tribunal) and were as follows:

"I am the Safeguarding Manager for Education with …..County Council. I have over 30 years of experience in the field of child protection and am a social worker by profession. I was manager of the Social Services Training Team in ……for 4 years, responsible for the training of all children's services staff and some multi-agency responsibility, but particularly with ………Police. I am currently the Chair of the Training and Development sub-committee of the ……Safeguarding Board.

………………

In considering the impact on the young people I can speak from the perspective of someone who has been asked to act out in interview the part of a perpetrator of sexual abuse in order that social workers in training can benefit from interview role play situations. This was only done following a great deal of intellectual study into the psychology of offending, many years of self analysis and reflection and a great deal of self assurance about the person I am. Despite this I am aware that the impact of taking on an abusive role is great. My training colleagues were extremely supportive and after the training a de-brief session was a compulsory part of the process whether needed or not. Victim roles can also bring to the fore past memories and experiences. Again this is something I have witnessed in social workers professional post qualifying training when adults have been deeply affected the subject matter of course work or case scenarios. They may find that it has resonance with their own experiences. The need for support in these situations and the available route to counselling is a necessary and responsible part of course preparation and support for employees. In my provision of basic child protection training to College staff, all attendees are given the name and contact details of a professional counselling agency to contact should they need it either during of after the training. This is part of the employer's duty to support and safeguard the welfare of their workforce. ……………

There is a significant difference between discussing matters of this nature and acting out the roles. The potential psychological and emotional impact of placing oneself in either the role of perpetrator or victim is significantly greater if the roles are acted than if they are discussed. This is why such care is taken in the training of professionals in the field and that direct role playing (acting out) is no longer used in professional training.

…………………..

Even professional groups engaged in this type of activity would use devices to further separate themselves from the roles e.g. masks or heavy make-up or shadows or elaborate costumes, part of "putting on" the role. …..In my experience I have never seen professional groups act out sexual abuse with each other."

1. Having viewed the DVD, Mr S advised the school, as recorded in his written statement, that he was shocked and concerned that the students had been allowed to engage in such highly sexualised behaviour whilst being supervised by adults:

"The scenes I saw contained details of intimate contact, albeit through clothes. The scenes were sexual in nature and the roles the children were undertaking were clearly meant to be abusive and aggressive. There were also scenes of multiple sexual activity and children were acting out scenes involving child sexual abuse between family members with some in the role of perpetrators and others in the roles of victims.

I found what I saw offensive, disturbing and potentially abusive of the young people. I felt abused by the process of having to watch the material and to repeat the experience would be abusive of the young people."

1. Mr S also advised that involvement in and viewing of the Showcase put them at risk of detrimental impact. He said:

"We may not and they will not know the impact that this has had on them for some time……………

………………..

It will be later when they come to terms with how they fell that they may feel aggrieved at what they have done.

………………………..

Such crude portrayal of abusive acts by young people is likely to have far reaching consequences on their own development and an unknown impact on audiences that have seen it."

1. He further advised the school:

"I am not surprised that there have not been a large number of complaints from the children involved. As I mentioned earlier, the children may not be aware of the full impact of this until some time in the future. Also anybody who has a victim mentality who acts out the part of a victim would not complain. It will be later when they come to terms with how they feel that they may feel aggrieved at what they have done."

1. Mr S was questioned at the Claimants' disciplinary and appeal hearings including on behalf of the Claimants. It was established that he was not qualified in psychology or psychiatry, was not a teacher, was not familiar with the GCSE syllabus and had not seen previous school drama presentations. Otherwise, his evidence accorded with the experience and views expressed in his written statement, as above.

1. Further, Mr S said that he had advised Mrs T not to interview others in the course of her investigations including the children involved in the Showcase. She had followed his advice. As referred to by the Tribunal at paragraph 163, his advice was by reason of his apprehension of further harm being caused to the children.

1. After having received their letters of dismissal, the Claimants gathered what the Tribunal refer to as "a substantial body of documentary evidence" which were mainly statements including some from members of the audience, some from students who had taken part in the Showcase and some from students who had taken part in former Showcases. The material contained statements which were supportive of the Claimants and indicated that their authors' experiences of the Showcase had been positive. Some of them were anonymous and unsigned.

1. Both Claimants appealed and submitted, in support of their appeals, the documentary material they had gathered. Ms C's appeal was heard in October 2009. The panel was chaired by Mr R. She was accompanied by her solicitor. At the start of the hearing, her solicitor requested that an independent note taker be present. The reason was that Ms C believed that the Second Respondent's notes were not always accurate. The Deputy County Secretary of Legal Services from the education authority, who was present, advised the appeal panel that an independent note taker was not appropriate; it was not needed and was not provided for in the relevant disciplinary policy. Ms C retired with her solicitor to discuss the matter and decided that since the request for an independent note taker had been refused, she would not participate in the appeal.

1. Ms C's appeal proceeded on the basis of evidence led for the Second Respondent and the appeal papers which included a written statement from Ms C, DVD's of previous drama productions, and the documentary material gathered by the Claimants. The appeal was not upheld and the panel confirmed Ms C's dismissal. Their decision was intimated to her by letter dated 30 October 2009 in which she was advised, amongst other things, that the panel had taken account of not only her written statement and the DVD's but also the witness statements of pupils (past and present) and parents and of certain character witnesses that had been provided by her.

1. Miss D's appeal was heard on 21 June 2010. Prior to that date but after Ms C's appeal hearing, a "chat room" conversation took place between two pupils of the Second Respondent, one of whom was the daughter of Mr R's partner. In the course of that "chat" it was disclosed that Miss D had had a miscarriage. The pupil stated in the "chat" that the source of her information was her mother. It was alleged that Mr R must have been the source of that breach of confidence in a complaint which was made by the NASUWT. The matter was investigated by a senior HR consultant from the First Respondent's Children and Younger Adults Department. Having reviewed the "chat", interviewed Mrs T and interviewed Mr R (who denied having made any such disclosure), she concluded that Mr R was not the source of the pupil's information; there was no evidence pointing directly at him and there was evidence that the information could have come from other sources in the community.

1. Miss D's appeal was not successful. As found by the Tribunal at paragraph 66, the appeal panel also took account of the material that had been gathered by the Claimants after the disciplinary hearing. They advised:

"…the panel did take into account the supporting statements you provided and did note that you have helped a number of pupils with psychological issues. However, this is entirely separate from the potential psychological impact of the productions. The panel took into account the evidence from (Mr S) and noted the possibility for psychological impact. However, your submissions did not satisfy the panel that you had taken appropriate action to prepare the pupils in this regard and so the panel upheld the finding on the disciplinary panel that this amounted to gross misconduct."

**The Tribunal's Judgment**

1. We begin by noting that, in the course of their findings in fact, the Tribunal made their own findings about what, in one respect, was depicted on the DVD of the Showcase, arriving at a different conclusion from that which was arrived at by one member of the disciplinary panel (Mr A T). It relates to the extent to which masturbation was depicted in the performance, a scene which, at paragraphs 84 and 95, the Tribunal record both Claimants as having accepted went beyond appropriate boundaries. As the Tribunal records at paragraph 27, that member of the panel thought:

"27………..that (a) the boy was masturbating and (b) in the scene that followed was sexually aroused."

1. The same interpretation was put on the scene by Dr R, an expert witness called by the Respondents to give evidence before the Tribunal.

1. At paragraph 28, the Tribunal, however, state:

"We have looked carefully at this scene. Whilst the boy plainly does push his hand down the front of his trousers, we have the clear impression that he did not push it down far enough to reach his genitals. Whilst his hand was down the front of his trousers, he moved it three or four times. Whilst it is possible to gain the impression of sexual arousal from the shape of the student's trousers, we think it highly unlikely that he was in fact aroused given that at the time he was delivering a monologue in the presence of the Head Teacher about the damage that he had done to his family by his sexual abuse of his children. Accordingly, we find that the (sic) Mr A T's and Dr R's interpretation of what they saw was distorted by their own preconceptions." (our emphasis)

1. The Tribunal do not explain what they refer to as "their preconceptions" and they make no findings to the effect that either Mr A T or Dr R in fact had any preconceptions. Bias was not, we note, raised as an issue before the Tribunal.

1. We also observe that in relation to the question of whether or not there were any significant disparities between the Showcase performance and the DVD, whilst finding that Miss D had agreed at the disciplinary hearing that there were not, the Tribunal expressed the view that "that did not seem entirely consistent with what she had just said about differences"⁴ and added "the probability is that Mr P made the suggestion"⁵ but the Claimants made no complaint about or criticism of the Respondents having approached matters on the basis that what was shown on the DVD was not a fair reflection of what had been performed at the Showcase; whilst the Claimants appear to have referred to there being differences, their complaint does not seem to be that they were of substance. Nor did the Tribunal themselves find that the DVD presented a more damning picture. It is not, accordingly, entirely clear why the Tribunal expresses that view or makes that observation; neither appears to be relevant.

1. Otherwise regarding the Showcase and the DVD, the Tribunal, at paragraph 170 criticise the Respondents for failing to show the DVD to "others who were present at the showcase" and ask them whether or not it fairly represented the performance. It is not entirely clear what the Tribunal had in mind so far as "others" were concerned; should all those involved in the Showcase and all the members of audience have been asked to view the DVD or only some of them and if so, who? Nor is it clear what weight the Tribunal placed on this matter (the relevance of which, as above noted, we doubt) although it is clear that it was not the Tribunal's principal concern.

1. We note that the Tribunal's approach was to regard the case as involving "young people" not children⁶ yet some were only 15 years old and, as school students, all of them were undoubtedly entitled to the benefit of its child protection regime.

1. We also note the Tribunal's approach to what was a significant aspect of the Claimants' central argument, namely that Mrs T did not take into consideration "the drama element of what she had seen"⁷ and only presented evidence in the disciplinary process "from the view of child protection and safeguarding"⁸. The Tribunal, however, recast it as:

"…we think that the claimants meant to make the point that Mrs T and both the disciplinary and appeal panels ignored the drama context and so distorted the enquiry as one involving safeguarding and child protection issues, when in reality it did not."⁹

1. We observe that that formulation suggests that the Claimants were saying that safeguarding and child protection issues were not involved when that does not in fact appear to have been their position; their point, rather, seemed to be that the drama content needed to be considered in addition to issues of safeguarding and child protection. The "drama" point articulated by the Tribunal in this passage is picked up again by them later when explaining why the dismissals were unfair¹⁰. That formulation also suggests that the Claimants were expressing a concern not only about Mrs T but about the disciplinary and appeal panels which, according to the Tribunal's finding earlier in that paragraph, they were not. Further, it suggests that they accused Mrs T of having "distorted" the enquiry – a serious allegation – when that was not what they said.

1. When it comes to explaining their reasons, the Tribunal begin, appropriately, with references to BHS v Burchell [1978] IRLR 379, Iceland Frozen Foods v Jones [1982] IRLR 439, and Sainsbury's v Hitt [2003] IRLR 23. They also, under reference to Moore-Bick LJ's dissenting judgment in [Fuller v London Borough of Brent]()* [2011] IRLR 414,* at paragraph 53, remind themselves that they required to ask whether the employer genuinely believed that the misconduct in question had happened, understanding that tribunals are not to be concerned with what actually happened but what the employer believed had happened.

1. Paragraphs 151 to 162 of the judgment contain general discussion - some of which is directed to considering the Claimants' chances of being able to work as teachers again - in the course of which the Tribunal express the following views:

* Whilst Mr S's opinion to the effect that there was potential for harm to the students in the long term was noted: "On the other hand, we note that this was drama and that was the intention. The pieces as a whole were designed to have an impact on their audience and convey the message within them which many would say was the mark of good drama…."¹¹; That "…it is impossible to ignore the zeitgeist* which is risk averse in the field of safeguarding. Those tarnished with the child abuse brush become unemployable in work involving contact with children, regardless of the underlying facts because it is easier to focus on the shocking aspect and not to have make a judgment about the matter set in its context." ¹² * "We find it would be very difficult if not impossible for these claimants to work in schools in either the public or private sector …….on the balance of probabilities, they will not work again as teachers."¹³

1. The Tribunal made no findings in fact to support the statements in the second bullet point. Referring to these matters as "underlying facts" – which we note, being expressions of mixed fact and opinion, they are not – the Tribunal state that they "inform other parts of our judgment"¹⁴ without specification of which parts of their judgment they are said to inform. What does, however, seem clear is that the Tribunal formed the view that it was unlikely that the Claimants would be able to work again as teachers; they did not, however, find either that that was the Respondents' understanding or that that was a view which would have been reached by any reasonable employer.

1. Between paragraphs 157 and 165, the Tribunal set out their reasons for finding that the dismissals were unfair. They can be summarised as follows:

* There was no "cogent evidence" before the Respondents that what the Claimants had allowed their students to perform gave rise to actual physical, moral or psychological harm; * There was no "cogent evidence" before the Respondents that what the Claimants had allowed their students to perform had given rise to a risk of physical, moral or psychological harm; * That lack of "cogent evidence" of risk arose from the Respondents having failed to interview a representative sample of those who had taken part in "or watched" the Showcase¹⁵ and "compare and contrast" what those persons had to say with Mr S's opinion on risk¹⁶; * Mr S had "no experience of drama"¹⁷; "We* regard the advice that Mr S gave to Mrs T" (our emphasis) not to interview the other persons referred to "as unreasonable" because there was no evidence to support his assertion that interviewing the performers might cause them further harm¹⁸; * The context was drama¹⁹; * The choice of material was within the parameters set by the Examination Board in that material with sexual content had appeared before and the examiners had not approached the Respondents in relation to the sexual content of the 2007 performances; * The Claimants knew they required to set boundaries and had set appropriate boundaries in relation to nudity, bad language and inappropriate touching; * The Claimants had failed "properly to supervise students in rehearsal so that their performances remained within those boundaries"…… "it is common ground that the students in this case crossed boundaries outside the range of reasonable debate"²⁰; But "….we do not consider that shortcoming egregious enough to justify dismissal"²¹ (our emphasis); Whilst, as a matter of "discretion and prudence" it would have greatly assisted the Claimants if they had recognised early on that the head teacher and Governors were likely to take a very restrictive view of what would be permitted – which was, we observe, not the allegation so far as putting the head and governing body on notice was concerned²² - and, noting that the Claimants had not, initially, made any concessions on these matters , "we* think the characterisation of the alleged misconduct in this case as a form of child abuse was disproportionate and explains why the claimants were unwilling to make any concessions until forced to do so by the clarity of the points put to them in cross-examination"²³ (our emphasis); * The Respondents' failure to interview students/ members of the audience, as referred to above meant that they had not carried out as much investigation as was reasonable in the circumstances when forming their belief in the grounds for dismissal ²⁴.

1. Accordingly, the failure to interview those persons referred to was at the heart of the Tribunal's reasoning; indeed, they refer to it as their "principal" reason at paragraph 163. We note that it is of particular significance in their rationale as it is relied on by them when, in finding that there was an unfair dismissal, they set aside Mr S's views on risk.

1. The Tribunal also found that the dismissals were, in respect of the two matters referred to²⁵, procedurally unfair.

1. Regarding the notetaker point, which arose only in relation to Ms C, they refer to it as a "small" matter²⁶ which, we agree, it was. They considered it was unreasonable to refuse the request because "it would have cost the Respondents nothing to have permitted the independent notetaker, it would have satisfied Ms C and ensured her continued attendance at the appeal." That was against a background of her being concerned about a prior failure of the Respondents to ensure that investigative and disciplinary meeting notes were agreed. They appear to have taken no account of the fact that the decision to refuse the notetaker request was based on legal advice and there are no findings that there were in fact any deficiencies in any notes including the notes which were taken at the appeal hearing.

1. Regarding Mr R chairing Miss D's appeal panel, the Tribunal considered that the findings of the investigating officer were "hardly convincing" but irrespective of its merits "it would be better for the perception of bias" if he had recused himself. That was because a "fair minded observer" would say he should not be a member of the panel because if the allegation about him were true it demonstrated a lack of respect for Miss D, he might let the complaint about him cloud his judgment and he could not objectively evaluate the "chat room" evidence.

**The Appeal**

Submissions for the Respondents

1. This was a perversity appeal and Mr Hignett rightly recognised that that meant he had to overcome a substantial hurdle if it was to succeed. He sought to rise to that challenge in a well structured submission.

1. First, he submitted that the Tribunal had erred in law in its approach to the issue of whether or not the Respondents had carried out a reasonable investigation. He accepted that the Tribunal had, at paragraph 146, reminded themselves that they required to have regard to J Sainsbury plc v Hitt but that did not preclude an appellate court from finding that they had failed to follow their self direction: [Crawford v Suffolk Mental Health Partnership NHS Trust]() [2012] IRLR 759 per Elias LJ at paragraph 28. This Tribunal had failed in that regard. Instead of considering whether the investigation carried out was, in all the circumstances, a reasonable one, applying the objective standard of the reasonable employer, they had considered whether there was any further investigation that could have been carried out and because they considered that the students and audience members referred to ought to have been interviewed in addition to those investigations which the school did carry out, found that the investigation was not reasonable.

1. Both Claimants had been interviewed at length. The Respondents had sought the assistance of the local education authority and been advised by an expert in safeguarding matters, Mr S. Mrs T had documented the views of the parents and students who had approached her. The DVD had been viewed by the disciplinary panel. Mr S had advised Mrs T not to interview the students involved in the Showcase. In these circumstances, it was clear that the Tribunal required to consider not whether there were any further investigations that could have been carried out but, rather, whether in all the circumstances including the advice received by Mrs T, it was within the range of reasonable responses not to interview other persons. It was plain from paragraphs 163 – 164 that they had not asked themselves the correct question.

1. Further, it was not clear what the Tribunal thought would have been achieved by Mrs T carrying out such interviews; it was absurd to suggest that those interviews could assist on the question of risk and, very significantly, by the time matters were at appeal stage, the Claimants had carried out their own interviews and they placed the result of that process before the appeal panel. The material was not missing; it was before the Respondents before final decisions were made.

1. Further, the interview matter had no bearing on those allegations that did not relate to failures to supervise, namely the allegations concerning the failure to warn the audience and to bring matters appropriately to the attention of management.

1. Still on the issue of reasonable investigation, Mr Hignett submitted that the reasonable employer was not required to look for "cogent evidence" as had been the approach of the Tribunal. He referred in support of that submission to [BAA v Davies]() UKEATS/0047/11/BI **at paragraph 40 -41.

1. Turning to the matter of the advice given to the Respondents by Mr S, Mr Hignett made the following submissions. The Tribunal had begun by accepting, at paragraph 164, that it was "plainly reasonable for the second respondents to look to the very person employed by the first respondents to provide guidance in safeguarding matters", as was indeed the case given his background knowledge and experience as per his statement. They had then infringed two well established principles in going on and finding his advice was unreasonable and that the school acted unreasonably in accepting it. Those were, first, that the Tribunal required to ask whether or not the employer's view as to risk of harm was, in all the circumstances, reasonably held and secondly, that it may be reasonable for an employer to rely on expert advice even if the expert is misinformed or wrong. He relied on First Manchester Ltd v Kennedy UKEAT/0818/04/DM in support of the former and on Farrant v Woodroffe School [1998] ICR 184 *in support of the latter. The Tribunal stated, using "we" that they* considered Mr S's advice to Mrs T be unreasonable. However, Mrs T was not the decision maker. How or why was it unreasonable for her to accept the advice?

1. Further, their language was indicative of a substitution mindset. The Tribunal's focus should have been on what the school had made of Mr S's advice and how they let it influence their decisions. The Tribunal required to analyse the decisions of the disciplinary and appeal panels to see how they had approached Mr S's opinions (on which he had been cross-examined in the course of the disciplinary and appeal hearings) and let it inform their conclusions but had wholly failed to do so. It was plain that the Tribunal's conclusion was simply that they thought that Mr S's views were unreasonable; they had not objectively considered the position of the reasonable employer at all.

1. There were, in Mr Hignett's submission, other examples of the Tribunal having adopted a substitution mindset. He referred in particular to the Tribunal having reached their own view as to what was depicted in the masturbation scene at paragraph 28 of their reasons. He added that the comment at the end of paragraph 28 to the effect that Mr T and Dr R had preconceptions was hugely damning but there was no basis for it in the Tribunal's findings.

1. On substitution, Mr Hignett also referred to (a) paragraph 159 and the Tribunal's statement "we do not consider that shortcoming egregious enough to justify dismissal", and (b) the Tribunal having noted that the Claimants did not acknowledge any wrongdoing in the course of the disciplinary process (only doing so at the Tribunal hearing) and, at paragraph 160, having accepted failures on the part of the Claimants, had then gone on to excuse them for reasons put forward by the Tribunal namely that the Claimants were facing allegations of child abuse (which was not correct) and the Tribunal failed to ask themselves whether a reasonable employer would have taken account of the Claimants' failure to acknowledge their wrongdoing in the disciplinary process.

1. Finally on substitution, Mr Hignett referred to paragraphs 172-3 which plainly showed what were the Tribunal's own views but wholly failed to consider or have regard to the question of whether all reasonable employers would have concluded similarly.

1. Turning to the procedural failings, Mr Hignett submitted that the Tribunal had failed to take account of the fact that it is not every procedural failing which leads to the conclusion that there has been an unfair dismissal: Fuller v Lloyds Bank Plc [1991] IRLR 336; Whitbread plc v Hall [2001] ICR 699. It was still necessary to ask whether dismissal was, in relation to the procedural failing in question, within the range of reasonable responses. Even if Ms C's request for a notetaker ought to have been granted, there was no evidence or finding that the lack of one made any material difference; that was the Respondents' submission to the Tribunal but it had been ignored. Unfairness from a defect in procedure was not demonstrated.

1. Regarding the inclusion of Mr R in the appeal panel, again, no unfairness was demonstrated and the Tribunal had failed to apply Fuller and Whitbread. Further, the Tribunal appeared to have come close to applying a Porter v Magill test (though not the test as fully articulated in Porter**) and it was not at all clear that that was appropriate in the case of the make up of a disciplinary or appeal panel. More importantly, there was no finding that the panel was in fact affected in any way by bias or that the result would have been any different had Mr R recused himself. Regarding the Tribunal's approach to the findings of the investigation into the complaint against Mr R that, again, was evidence of substitution.

1. Mr Hignett submitted that if the Tribunal had addressed the right question they could only have concluded that the decision not to carry out the interviews was within the range of reasonable responses.

Submissions for the Claimants

1. Mr Hyams began by warning this Tribunal not to substitute its own view for that of the Employment Tribunal: London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220. Thus whilst there may, in the Tribunal's judgment, have been small indications that justified the conclusion of substitution, it was important to look at the overall picture.

1. He submitted that if the Tribunal had, as here, stated the correct legal test, it was highly unlikely that they did not apply it. He referred, in support of that submission to [Salford Royal NHS Foundation Trust v Roldan]() [2010] ICR 1457 **at paragraph 51 where, we note, Elias LJ does not go that far; rather, he observes that if an employment tribunal has properly directed itself in law the appeal tribunal should not interfere "save where there is a proper basis for doing so".

1. Mr Hyams observed that the Respondents' appeal was on perversity grounds but here the Tribunal had stated the correct test and kept it in mind. The employers' approach had been that interviewing students would cause them harm. But that conduct would have had to have an effect, namely the incurring of risk. Risk ought not to be viewed in isolation. The employer relied on the evidence of one "so called expert" who was a social worker with no experience in drama. The way in which past performances had panned out had to be taken account of. It was one thing to assert risk. It was another thing to assess it. It was too easy to take the views of the "so called expert", not that he was saying that Mr S was not an expert in his own field.

1. Mr Hyams made reference to two newly tendered authorities ([London Metropolitan University v Storfer]() UKEAT/0073/11/ZT and Christou v London Borough of Haringey for, it seemed, the well known proposition that, save perversity, fact specific decisions of employment tribunals will not be overturned on appeal.

1. As to perversity, it needed, he said, as with irrationality in public law, to be shown that the Tribunal had taken account of an irrelevant factor or failed to take account of a relevant factor.

1. It was, Mr Hyams submitted, right to say that there should have been more investigation. Drama was quite different from Mr S's experience. The Tribunal were entitled, as they had done, to go behind his views.

1. Mr Hyams also referred to Abernethy v Mott, Hay and Anderson [1974] ICR 323, for the well known passage in the judgment of Cairns LJ to the effect that the reason for an employee's dismissal is a set of facts known to or beliefs held by an employer, and to the speech of Lord Mackay of Clashfern in Smith v Glasgow City Council [1987] ICR 796 where, at p.803, he referred to the issue being whether or not an employer acted reasonably in treating the reason (or principal reason) for dismissal as a sufficient reason to do so. The reason for these references by Mr Hyams seemed to be that they showed that it was not necessary, in an unfair dismissal case, to establish that all facts founded on by the employer were flawed.

1. In this case, the Claimants had established that there was an inadequate investigation related to the reasons for dismissal and that was enough. It was open to the Tribunal to conclude that more investigation would have been of value.

1. Further, the fact that the Claimants' careers were at stake was important: Crawford v Suffolk Mental Health Partnership Trust [2012] IRLR402 **at paragraph 51.

1. Regarding the Tribunal making its own findings about what occurred during the 'masturbation scene' on the DVD, Mr Hyams sought to submit that those findings must have been with the Respondents' case of contributory conduct in mind but he could point to nothing in the judgment that supported his submission.

1. Regarding the procedural failings, Mr Hyams ultimately confined his submissions to saying that the Tribunal had lawfully concluded that Mr R's inclusion in the panel was unfair, that the notetaker matter was very much a matter for the Tribunal and that the failings led to the conclusion of unfair dismissal. Whilst the effect of any procedural failing may be relevant that was only so when it came to considering whether or not to make a Polkey deduction.

**Relevant Law**

1. Applying section 98 of the Employment Rights Act 1996, and the discussions in BHS v Burchell [1978] IRLR 379, Iceland Frozen Foods v Jones [1983] ICR and Sainsbury's v Hitt **the questions for the Tribunal were:

* What was the reason or, if more than one, the principal reason for the Claimants' dismissals? * Bearing in mind that these were misconduct dismissals, did the employer genuinely believe the Claimants to be guilty of the misconduct for which they were dismissed? * was any such belief based on an investigation which was reasonable applying the objective standard of a reasonable employer? * In all the circumstances, did the employer act reasonably in treating the reason relied on as sufficient for dismissing the Claimants?

1. Regarding the last two bullet points, first, we would refer to paragraph 43 of London Ambulance v Small **for the observations of Mummery LJ:

"It is all too easy, even for an experienced ET, to skip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question – whether the employer acted fairly and reasonably in all the circumstances at the time of dismissal."

with which we would, respectfully, agree. We note, in particular, given the circumstances of the present case, the identification of the risk of perceived difficulties that an employee may have in getting another job putting a tribunal into the substitution mindset.

1. Secondly, it is plain that the task for an employment tribunal is not to ask itself whether there were any more investigations which an employer could have carried out. Nor is an employer expected to proceed with the sort of investigation that would be required in relation to a court case.

1. Regarding expert advice, where an expert has been consulted by an employer in the course of investigation and relied on when deciding to dismiss an employee, the question for the tribunal is not whether or not they would have accepted that advice. It is whether it can be said that no reasonable employer would have done so: First Manchester Ltd v Kennedy; Farrant v Woodroffe School. The advice may be shown later to have been erroneous, as in the case of Farrant, but that is not the point. The point is whether or not the employer genuinely believed it and was, applying the objective standard of a reasonable employer, entitled to rely on it.

1. Turning to the effect of procedural failing, it is not the case that every procedural flaw is of itself demonstrative of the dismissal being unfair. It is a matter of considering whether, in all the circumstances, the dismissal was fair or unfair: did the procedure overall constitute a fair process?: Fuller v Lloyds Bank Plc; Whitbread Plc v Hall**.

**Discussion and Decision**

1. We accept, of course, that perversity is a high hurdle. Equally, we accept that where a tribunal makes appropriate references to the relevant law, they might not thereafter fall into error. It can, however, happen and it is important that an appellate tribunal read the tribunal's judgment carefully to see whether it has in fact correctly applied the law to which it has correctly referred: Brent LBC v Fuller per Mummery LJ at para 30. That we have sought to do and have reached the firm conclusion that, in this case, notwithstanding a correct self direction on the relevant law, when it came to applying the law to the facts of this case, the Tribunal fell into error.

1. We are satisfied that all Mr Hignett's submissions are well founded and that this appeal should be upheld.

1. In particular, we conclude that the Tribunal's decision is a perverse one in the following respects.

1. The setting aside of the advice given by Mr S to Mrs T during the investigation, and to the relevant panels during the disciplinary and appeal process regarding the risks to the students of being involved in the Showcase was central to the Tribunal's reasoning. That is not surprising since the potential risks involved in the production and presentation of the Showcase, to which the Second Respondents were alerted by Mr S, was evidently an important part of the reasons for the Claimants' dismissal.

1. In setting aside Mr S's advice, as we have observed, the Tribunal approached matters on the basis that, put shortly, he did not have relevant experience. That, however, is clearly not correct as is demonstrated by even a brief reading of those parts of his statement which we have quoted in the 'Background' section above in which he explains precisely why he felt qualified to give a view. The Tribunal took no account of that and in so doing, failed to take account of a highly relevant factor when considering the matter of the advice he gave both in relation to the potential effect on students of having participated in the Showcase and in relation to the matter of whether or not they should be interviewed by Mrs T. Their dismissal of him and his views as to him not having had experience of drama was quite unjustified; it is plain that he did indeed have experience of drama in the context of role play depicting sexual abuse and, furthermore, of its potentially harmful effects. Particularly telling is his statement that acting out in direct role play of that nature is no longer used in professional training because of the potential for it to cause harm to the participants.

1. We would add that there also appears to be a contradiction in the Tribunal, on the one hand, accepting that it was appropriate for the Second Respondents to look to Mr S, "the very person employed by the first respondents to provide guidance in safeguarding matters"²⁷ for advice, whilst on the other hand suggesting that he was not the right person to ask for advice after all, which seems to be the thrust of their reasoning, at least at one point. The cause of that would appear to be their mixing an objective approach (the correct approach) with a subjective one (the wrong approach). The latter, as a matter of law, ought to have played no part in their reasoning.

1. Then, we are satisfied that they took account of an irrelevant factor, namely that persons involved in the Showcase and members of the audience should have been interviewed in the course of the investigation. As Mr Hignett said, what was to be gained by such interviews? These interviews were, apparently, to be for the purpose of finding out how they had reacted to the performance, not for the purposes of risk assessment including assessment of the potential for long term harm, a rather different matter. Whilst the Tribunal envisaged such statements being compared and contrasted with Mr S's views on the risk of long term damage to the participants, to do so would not have been to compare like with like; an apples and pears analogy is called to mind but a more appropriate analogy might be apples and artichokes.

1. Further, statements from such persons had been obtained and retained by the Claimants - which can be assumed to have been in positive terms – and were not absent from the decision making process. They were before and were considered by the appeal panel.

1. There is another respect in which we cannot read their judgment as showing that they correctly applied the objective standard of the reasonable employer. We accept Mr Hignett's submission that they put matters too highly in requiring that the employer look for "cogent evidence". That led to them criticising the Second Respondents for having failed to take a further step in the investigation, namely the interviews, a step which they considered was required because of the view that they took of Mr S's advice, advice which at no point do they find would have been rejected by any reasonable employer albeit that, as they say, "we" thought it unreasonable.

1. We are fortified in our conclusion as to perversity by the various examples of the Tribunal adopting a substitution mindset which were relied on by Mr Hignett; he was, we consider, justified in categorising them as such. Of particular significance is that, at paragraph 159, the Tribunal demonstrate plain substitution in their assessment of the gravity of the Claimant's failings when it came to supervising the students properly: "we do not consider that shortcoming egregious enough to justify dismissal".

1. It is also of some concern that, at paragraph 28, the Tribunal refer to Mr A T, who was a member of the disciplinary panel, as having had "preconceptions" without making any findings which could justify that conclusion, particularly when that was in the context of their having, in that same paragraph, having conceded that his assessment of what was depicted on the DVD was a "possible" conclusion i.e. that it was one which it was open to him to draw.

1. We would add that we do not accept Mr Hyams' submission that where the Tribunal made their own findings as to what was depicted on the DVD, that must have been in relation to the issue of contributory conduct. That matter is dealt with separately at the end of the judgment and there is no indication at all of those findings being intended to relate to anything other than the central issue of whether or not the Claimants were fairly or unfairly dismissed.

1. As for the procedural failings, we accept Mr Hignett's submissions.

1. Regarding the issue of whether or not Mr R should have sat on the appeal panel, the Tribunal come close to applying the test for apparent bias, but their allusion to it is not complete – they refer to the fair minded observer but omit that he also requires to be "informed"²⁸. However, of more significance is that they do not apply the objective standard of the reasonable employer nor do they find that, as a matter of fact, Mr R's presence on the appeal did actually result in any unfairness. Regarding the notetaker matter, we have already commented regarding it and we would only add that the Tribunal did not, in relation to it, find that there was any actual unfairness. In these circumstances, we are satisfied that the Tribunal erred in finding that the dismissals were procedurally unfair; it was not open to them to do so.

**Disposal**

1. Mr Hignett submitted that we should substitute a finding of fair dismissal, which failing, order a remit to a freshly constituted Employment Tribunal. Mr Hyams submitted that the circumstances were not such as could justify our making a finding of fair dismissal if we were minded to uphold the appeal - that was not plainly the outcome if the Tribunal were found to have erred. There should, he submitted, be a remit to the same Tribunal: Sinclair Roche & Temperley v Heard [2004] IRLR 763.

1. We conclude that there requires to be a remit. Matters need to be looked at afresh with the correct questions being addressed under reference to all relevant facts and circumstances. This Tribunal relied on irrelevant matters, failed to take account of certain relevant matters and failed, in the respects discussed, to apply the objective test of the reasonable employer; all these are pre-eminently, tasks for the tribunal of first instance. Equally, however, we do not consider it would be appropriate for the case to go back to the same tribunal. This Tribunal showed sympathy for these Claimants in their comments regarding their inability to work again as teachers and the nature and extent of the perversity of their decision is such that the Respondents could, we accept, not reasonably be expected to feel wholly comfortable about defending these claims before the same tribunal again.

1. We will, accordingly, issue an order upholding the appeal, setting aside the judgment of the Tribunal and remitting the claims to a freshly constituted Employment Tribunal for a re-hearing.

NOTES

1 There then follows reference to the above list of what was depicted.

2 Referred to by the tribunal at paragraph 35.

3 15 and 22 June 2009, and 10 July 2009.

4 Paragraph 70

5 Paragraph 70

6 See paragraph 54: "…we noted the respondents constant references to children whereas we were dealing with performances by young people."

7 Paragraph 113

8 Paragraph 113

9 Paragraph 113

10 See paragraph 152.

11 Paragraph 152

12 Paragraph 153

13 Paragraph 150

14 Paragraph 154

15 Paragraph 163

16 Paragraph 164

17 Paragraph 164

18 Paragraph 163

19 Paragraph 157

20 Paragraph 159

21 Paragraph 159

22 As noted above the relevant allegations (nos. 3 and 5) were that they had failed adequately to prepare either senior management or the audience and that they had failed to put senior management on notice as to the nature of the material. It was not that they were found to have failed to accurately predict what would have been the response of the head and/ or governing body. The point was that this was material about which the head and management were entitled to know in advance and on which they were entitled to take a view.

23 Paragraph 160

24 Paragraph 165

25 (i) the independent notetaker point; and (ii) the objection to Mr R.

26 Paragraph 169

27 Paragraph 164

28 Porter v Magill [2001] UKHL 67 para 104.