![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Easter v Notre Dame High School [2004] UKEAT 0615_04_1111 (11 November 2004) URL: https://www.bailii.org/uk/cases/UKEAT/2004/0615_04_1111.html Cite as: [2004] UKEAT 615_4_1111, [2004] UKEAT 0615_04_1111 |
[New search] [View without highlighting] [Printable RTF version] [Help]
At the Tribunal | |
Before
HIS HONOUR JUDGE MCMULLEN QC
MR D J JENKINS OBE
MR B M WARMAN
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR DANIEL TATTON-BROWN (of Counsel) Instructed by: Messrs Hawkins Solicitors 24A Nelson Road Greewich London SE10 9JB |
For the Respondent | MS HARINI IYENGAR (of Counsel) Instructed by: Norfolk County Council Martineau Lane Norwich NR1 2DH |
SUMMARY
Practice and Procedure / Unfair Dismissal
The procedure of the Employment Tribunal created a risk that the Applicant had not had a full opportunity to deploy her case on the reason for dismissal. At all times up to the Chairman's letter, following written closing submissions by solicitors, it was common ground that the reason was gross misconduct and so it was a material irregularity for the Employment Tribunal to uphold some other substantial reason without hearing evidence and without it being the Respondent's case. Remit to a fresh Employment Tribunal. Recommend ADR and ACAS (old case now).
HIS HONOUR JUDGE McMULLEN QC
Introduction
The legislation
“98(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-
(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee
(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-
(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 be determined in accordance with equity and the substantial merits of the case.”
“123(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”
The facts
“Ms Easter perceived that she was not welcome back and, given the profound differences that emerged during the course of the discussion, the school saw no prospect of reaching an accommodation with her. What did emerge was recognition that Ms Easter's employment should be terminated and it was left that the terms would be discussed with a view to a compromise agreement. From then until November 2002, the only item on the agenda for discussions between the parties was the terms of a termination.”
“35 Although the whole of the disciplinary process was devoted to a response to Ms Easter's refusal to return to work when instructed to do so, a reason given the label of 'misconduct', we believe that we should consider the underlying reality. .A refusal by an employee to carry out a reasonable and lawful direction by an employer may wcl1 constitute a reason sufficient to justify dismissal, one related to the conduct of the employee. Whilst that is how the employer saw the issue in this case, our difficulty with it, as a reason sufficient to justify the dismissal, is that the last thing the employer wanted to achieve was Ms Easter back at work. It did not want her back but it did want a solution to a problem that had proved so intractable. We consider that it was not, therefore, the reason best suited to the situation in which the employer found itself. The artificiality lies in dismissing because the employee has disobeyed an instruction when that instruction was adopted as expedient, for want of something better suited. We believe that this$ Tribunal should strip away the artifice and look at the reality.
36 The reality was that there was a fundamental and irretrievable breakdown in the relationship between the parties. Ms Easter believed that she had been treated most unfairly and unreasonably but she would neither accept what she plainly perceived to be a fundamental breach by the employer by resigning nor would she adopt the contract of employment by a return to work. Whilst there remained the option of a mutual separation on terms she could accept, the situation was allowed to drift on. The employer, in the person of Mr Pinnington, saw that the situation was irretrievable at the meeting in July 2002 and, thereafter, he proceeded on the assumption that Ms Easter would not be returning to the school: in the circumstances, that assumption was a reasonable one.
37 The reality is that the dismissal was a belated recognition of the fact that the employment was already over, in the sense that trust and confidence had broken down and, with it, the consensus that must exist in a viable employment relationship. Both parties were conscious that there could be no way back to a position in which such consensus could exist. When the formal declaration that the employment was over came, the adopted means were less than perfectly suited to the needs of the situation. That was, probably, due to deficiency in understanding or, perhaps, because the perceived breakdown in the relationship between the parties was not thought to constitute a sufficient reason for dismissal. Whatever the reason for proceeding as it did, we are satisfied that the respondent's true reason for dismissing Ms Easter was because of the well-founded perception that there had been an irretrievable breakdown between itself and the applicant. We believe that, of the two parties, the applicant must bear the greater share of the blame for the breakdown but its roots lay in the misunderstandings fanned at the very outset of the cmp1oyment, referred to in paragraph 13 above. Her charge that the respondent failed in its duty to provide her with suitable guidance and support, is not made out.
38 The most appropriate label is that the dismissal was for some other substantial reason of a kind sufficient to justify the dismissal of an employee holding the position held by the applicant. It lies in the irretrievable breakdown and is a reason sufficient to justify the dismissal of an employee holding the position held by the applicant. The work of a schoolteacher, involving the exercise of a statutory duty to provide children with an education is of such a special character that there must be an appropriate level of trust and confidence between the parties. Where that has wholly broken down and all reasonable efforts to retrieve the situation have failed, the reasonable employer is likely to conclude that the employment must be terminated.”
The Applicant's case
“In effect, Mr Field submitted that there were three stages which one had to go through. The first was that the appellant must show some prima facie ground for thinking that there had been prejudice and he conceded that the appellant in the present case might begin to do that. He then submitted that if the respondent could demonstrate prima facie that it would in fact have made no difference had the matters which the Tribunal relied upon been canvassed before them, it was then for the appellant to cross a further threshold by showing what he would in fact have wished to do which would have materially affected the outcome of the case.
We consider that that is a proper interpretation of the authorities which hae been cited and properly reflects the attitude displayed in the judgment given by Waite, J in the last if the cases that we have cited, Hotson.”
The Tribunal went on to say that the material facts were fully laid before the Tribunal, and the Applicant had every opportunity to deal with them.
The Respondent's case
The legal principles
“I turn to the first point of law which Mr Pain raises. The employer has under the Industrial Relations Act1971 to 'show' the reasons for the dismissal. That is clear from s.24(6). It must be a reason in existence at the time when he is given notice. It must be the principal reason which operated on the employers' mind: see s.24(1)(a). It should, I think, be known to the man already before he is given notice, or he must be told it at the time. But I do not think that the reason has got to be correctly labelled at the time of dismissal. It may be that the employer is wrong in law as labelling it as dismissal for redundancy. In that case the wrong label can be set aside. The employer can only rely on the reason in fact for which he dismissed the made, if the facts are sufficiently known or made known to the man. The reason in this case was – on the facts – already known or sufficiently made known to Mr Abernathy. The wrong label of 'redundancy' does not affect the point.”
It will be noted that in that case (see paragraph 6) both redundancy and incapability had been put forward in alternative forms.
“9. …In Gorman v London Computer Training Centre Ltd [1978] IRLR 22, this Appeal Tribunal held that it was not necessary to 'plead' some other substantial reason in the full technical sense of the word. However, in our judgment in the light of the Nelson case it is probably necessary that the matter should be expressly ventilated in the Industrial Tribunal before it reaches a decision on the matter so that the parties can have a full and proper opportunity to deploy their case on the matter. Natural justice requires that the party should not have a case decided against him on a ground on which he has not had an opportunity to be heard.
10. It is therefore not safe for us to approach this case on the basis that the reason for dismissal was either redundancy or some other substantial reason. It is accordingly necessary for us to consider whether, on the facts of this case, Mr Murphy could properly be held to be redundant.”
The case was approved on appeal to the Court of Appeal, and Ms Iyengar accepts that express approval is given to that approach (see [1984] IRLR 271, paragraph 35).
“The way in which the matter has been argued to us makes it quite clear however that the approach of mere labelling can cause problems for those who are not legally trained and it seems to us that first of all, if there is any doubt about the reason, then it is better that the reasons should be stated in the alternative, and I have no doubt that those advising parties will soon realise that that is desirable. Secondly, that where, or indeed as soon as, it becomes apparent to the tribunal that the reason is likely to be different from the one stated in the documents, that matter should be raised; the issue should be re-analysed; it should be made clear to each side; each side should comment, object seek adjournments in any way where justice so requires it, but thereafter all parties should be clear about that is being decided and then they can argue, readjust their evidence, if need be call further evidence. So in the end no one need come forward and say “Oh we thought it was rather difference and we feel that we have not had a chance of putting our case as we might have wished to have done.”
It will be noted that in that case the EAT accepted that the consequence of a failure for an employer to prove a potentially fair reason was effectively an automatically unfair dismissal, and the case should be so decided, leaving only an issue of remedy upon remission: see page 409H-410A.
Conclusions
“An employee should only be found guilty of the offence with which he has been charged. It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed, and that evidence should be confined to particulars given in the charge. Care must be taken with the framing of a disciplinary charge and the circumstances in which it is permissible to go beyond that charge in a decision to take disciplinary action are very limited. Where care has clearly been taken to frame a charge formally and put it formally to an employee, the normal result must be that it is only matters charged which can form the basis for a dismissal.”