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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> West v. Percy Community Centre [2016] UKEAT 0101_15_2001 (20 January 2016) URL: https://www.bailii.org/uk/cases/UKEAT/2016/0101_15_2001.html Cite as: [2016] UKEAT 0101_15_2001, [2016] UKEAT 101_15_2001, [2016] ELR 223 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LANGSTAFF
MS K BILGAN
MR J R RIVERS CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Costain Limited
For the Appellant | MR TOM WOODWARD (Solicitor) Scott-Moncrieff & Associates Ltd Solicitors 88 Kingsway Holborn London WC2B 6AA |
For the Respondent | MS KATHERINE REECE (Representative) Peninsula Business Services Ltd The Peninsula Victoria Place Manchester M4 4FB |
SUMMARY
UNFAIR DISMISSAL
UNFAIR DISMISSAL - Reasonableness of dismissal
On three occasions over three days, the Claimant was thought to be having inappropriate and excessive physical contact with the young children (aged 7-8) at an after school hours club which he was employed to run. The employer genuinely thought that he had broken a policy that provided for limited physical contact only and dismissed summarily. The Claimant accepted that the children had sat on his lap (in two cases) and he had held the child in the third but said that his actions were within the policy. The Employment Judge was dismissive of this point in a way that showed he did not properly consider it. Nor did he consider the policy sufficiently - had he done so, he would have seen it allowed for some flexibility as to the occasions on which contact would be acceptable, and that the Claimant was contending that on at least two of the occasions that what he did was within it and the third contact was so fleetingly brief as to be of no significance. He argued that the employer had not taken into account the circumstances and the fact (as he alleged) that other staff at the club also permitted children to sit on their laps. There was some support for this in investigations which the employer undertook after a disciplinary hearing that resulted in dismissal so that the Employment Tribunal wrongly considered that there had been no investigation, but (a) given the consequences of the decision for the future career of the Claimant the investigation should have been thorough and was not, (b) the employer erroneously appeared to declare that if there was a breach there was no room for mitigation yet the Employment Tribunal did not examine this, and (c) if it was not uncommon for such to happen there would be good grounds for thinking a sanction short of dismissal might have been the most that a reasonable employer could have imposed, the appeal was allowed and the matter remitted to a fresh Tribunal for determination of the claim.
THE HONOURABLE MR JUSTICE LANGSTAFF
Introduction
The Facts
"? Where physical contact is necessary (e.g. first aid being administered) be sensitive to the situation
? When a child is upset, try to seek ways to provide comfort & support without unnecessary or excessive physical contact e.g. have the child sat next you instead of on your lap [sic]
? Where physical contact is unavoidable ensure that another adult is present, e.g. during first aid treatment
? Horseplay & violent games must be avoided
? As a general rule there should be no need for an adult to adjust clothing of children. It is sometimes necessary to assist with personal care for children, particularly changing nappies, helping with changing of clothes after an accident …"
"There are occasions when it is entirely appropriate and proper for staff to have physical contact with pupils, but it is crucial that they only do so in ways appropriate to their professional role.
A 'no touch' approach is impractical for most staff and will in some circumstances be inappropriate. When physical contact is made with pupils this should be in response to their needs at the time, of limited duration and appropriate to their age, stage of development, gender, ethnicity and background. Appropriate physical contact in schools will occur most often with younger pupils.
It is not possible to be specific about the appropriateness of each physical contact, since an action that is appropriate with one child in one set of circumstances may be inappropriate in another, or with a different child. Staff should therefore, use their professional judgement at all times.
Physical contact should never be secretive, or for the gratification of the adult, or represent a misuse of authority. If a member of staff believes that an action could be misinterpreted, the incident and circumstances should be recorded as soon as possible in the school's incident book and, if appropriate, a copy placed on the child's file.
…"
"… a blatant breach of company rules and procedures with regards to working practices with the children. Further particulars being, that it is alleged that on 07/01/2014 and 09/01/2014 you have allowed children over the age of 4 to sit on your lap which is considered inappropriate and excessive physical contact. The company alleges that these repeated and blatant breaches of this policy amounts [sic] to, if proven, a gross breach of trust."
"… I have referred to our standard disciplinary procedure when making this decision, which does not permit recourse to a lesser disciplinary sanction."
The Decision
"5.1. There was no dispute as to the reason for dismissal in this case; it was one which related to the Claimant's conduct and was therefore a fair reason under s. 98 (2).
5.2. Under s. 98 (4), I had to address the three stage test under BHS v Burchell [1980] ICR 303. As I had pointed out to the Claimant at the start of the hearing, it was not for me to decide whether he had actually committed the acts complained of, but whether the Respondent genuinely and reasonably thought that he had at the time.
5.3. The Claimant had candidly and realistically accepted that the Respondent had genuinely held the belief at the point of his dismissal, but he challenged the reasonableness of that belief. He had clearly conceded that the three events for which he had been dismissed had occurred and that he had known of and understood the Policy. It was therefore difficult to say that the Respondent did not have reasonable grounds to believe the allegations that were made against him.
5.4. He raised two further specific issues during the course of the hearing: first, that the Respondent's contract with the School should not have had an impact upon the decision that was taken in his case. That point appeared to have related to part of Mr Pitt's conclusions at the disciplinary hearing … when he referred to the Respondent's relationship with the School as … "a fundamental customer relationship and source of income for the community centre". That matter, however, was not raised with Mr Pitt in cross examination by the Claimant. It was not a matter which was referred to by Mr Pitt in his letter of dismissal either … and I had no sense that it had formed any major part of his rationale for dismissing the Claimant. Even if it had, the fact that an employer receives pressure from a third party in such circumstances would not necessarily have rendered the dismissal unfair; even if such pressure had been present, it did not affect the reasonableness of the Respondent's view as to the Claimant's guilt."
"5.7. … I was not permitted to impose my own view of the appropriate sanction (Foley v The Post Office and HSBC v Madden [2000] ICR 1283). An employer should consider any mitigating factors which might justify a lesser sanction and the ACAS Guide was useful in that respect; factors such as the employer's disciplinary rules, the penalty imposed in similar previous cases, the employee's disciplinary record, experience and length of service are all relevant. An employer is entitled to take into account both the actual or potential impact of the conduct alleged upon its business."
"5.8. Here, the Claimant argued, first, that insufficient notice was taken of the significant mitigating factors he raised and, secondly, that the decision to dismiss him was inconsistent with the approach taken in respect of other staff that may have committed the same or similar acts.
5.9. As to the first point, it was undoubtedly the case that the circumstances surrounding child X's distress on 7 January were unusual and extreme. I was told that both he and his sister, child Z, had found their mother unconscious on the morning of 7 January. X had had to call an ambulance to attend her. He then went to school, followed by the Respondent's after-school club where he fell and broke a tooth. On any interpretation, it must have been a very upsetting day for him. However, it cannot be said that 'Policy 32' did not then apply. Even if the Claimant had been justified in failing to keep to it in respect of the peculiar circumstances of child X, child Z had not been in quite the same position and he did not appear to deal at all with the circumstances surrounding his contact with child Y on 9 January. …"
It is unnecessary for present purposes to do more than refer any reader hereafter to the balance of paragraph 5.9. Then the Tribunal turned to say at paragraphs 5.10 and 5.11:
"5.10. I accepted that others could have regarded Mr Pitt's decision to dismiss as having been harsh, but I could not say that it was outside the band of responses available to a reasonable employer in the circumstances set out in paragraph 5.9 above. I could certainly appreciate that a different employer might have issued a final warning and reminded an employee about the terms of the Policy, as the Claimant has argued in this case, but that did not mean that I was in a position to interfere with the decision that Mr Pitt had reached since it was nevertheless a sanction open to a reasonable employer.
5.11. As to the point on consistency, in the absence of any allegation from any other member of staff that someone had committed a similar act, it cannot have been said that Mr Pitt behaved unreasonably in failing to investigate that allegation, which was not raised by the Claimant until the disciplinary hearing."
The Appeal
Discussion
"(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."
That statutory question is answered by a factual inquiry.
"5.9. … Even if the Claimant had been justified in failing to keep to it in respect of the peculiar circumstances of child X, child Z had not been in quite the same position and he did not appear to deal at all with the circumstances surrounding his contact with child Y on 9 January. …"
Conclusion
Disposal