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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> St Nicholas School (Fleet) Educational Trust Ltd v Sleet [2017] UKEAT 0118_17_0311 (3 November 2017) URL: https://www.bailii.org/uk/cases/UKEAT/2017/0118_17_0311.html Cite as: [2017] UKEAT 0118_17_0311, [2017] UKEAT 118_17_311 |
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At the Tribunal | |
Before
HER HONOUR JUDGE EADY QC
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR JULIAN ALLSOP (of Counsel) Instructed by: Messrs Willans LLP 28 Imperial Square Cheltenham Gloucestershire GL50 1RH |
For the Respondent | MR ANGUS GLOAG (of Counsel) Instructed by: Messrs Tom Street & Co Solicitors 2B Bath Street Frome Somerset BA11 1DG |
SUMMARY
UNFAIR DISMISSAL - Reason for dismissal including substantial other reason
UNFAIR DISMISSAL - Reasonableness of dismissal
PRACTICE AND PROCEDURE - Perversity
PRACTICE AND PROCEDURE - Appellate jurisdiction/reasons/Burns-Barke
UNFAIR DISMISSAL - Compensation
UNFAIR DISMISSAL - Contributory fault
UNFAIR DISMISSAL - Polkey deduction
Liability appeal - unfair dismissal - reason for dismissal - reasonableness of dismissal - perversity - adequacy of reasons
Remedy appeal - compensation - contributory fault - Polkey deduction
The Claimant, the Maintenance Manager at the Respondent school, was dismissed after it was found he had failed to draw the Respondent's attention to changes in use of a right of access across the school site, which raised potential child protection and safeguarding issues. On his complaint of unfair dismissal, the ET concluded that the Respondent had not made good its reason for dismissal (conduct), the Head Teacher (the relevant decision-taker) having demonstrated hostility towards the Claimant's continued employment when she had earlier issued him with a final written warning for performance concerns notwithstanding his 20 years of unblemished service; safeguarding issues were not the real motivation for the dismissal - had the Respondent genuinely held that concern it would have taken other steps (before and after the dismissal) to address the risks identified. Furthermore, the ET did not consider the Head Teacher sufficiently impartial: her knowledge of the use of the right of way was in issue and she was unreliable in her evidence; the investigation had also been inadequate and the decision to dismiss fell outside the range of reasonable responses. At a subsequent hearing, the ET addressed remedy, declining to make any reduction for contributory conduct given its earlier conclusions on liability, and finding there should be no Polkey reduction - in part, because of its Liability Decision but, in so far as the Respondent sought to rely on other matters, it had either known of those before dismissing the Claimant but taken no action or had carried out no investigation and it would be too speculative to make any reduction.
The Respondent appealed against both Decisions.
Held: allowing the appeals and setting aside the ET's Liability and Remedy Judgments.
The ET's conclusion on reason was not supported by its findings of fact: it had not found that what the Head Teacher said she had in mind - which had caused her to decide the Claimant should be dismissed - was untrue; even if it thought she had wanted to be able to dismiss the Claimant, that did not mean she had not in fact done so for the conduct reason she relied on. The ET's conclusion on possible ulterior motive and/or impartiality could be relevant to the question of fairness but this was also not supported by the findings of fact and the inference drawn from the previous final written warning for performance issues was perverse/ inadequately explained. The ET had, further, fallen into the substitution trap in respect of fairness of investigation, process and as to sanction - in particular, in its focus on actual risk (rather than the anticipatory risk that had informed the Respondent's decision), in how it saw the issue of the Head Teacher's knowledge (the issue had been the change in use of the right of access, not - as the ET suggested - her knowledge of past use) and in its suggestions as to what the Respondent ought to have done in relation to its safeguarding concerns. In the circumstances, the finding of unfair dismissal could not stand.
In the light of the conclusions reached on the liability appeal, the ET's Remedy Judgment would also be set aside.
HER HONOUR JUDGE EADY QC
Introduction
The Background Facts
The ET's Decisions and Reasoning
Liability
Remedy
"4. I did not find that the Claimant was guilty of any culpable or blameworthy conduct which caused or contributed to his dismissal. On the contrary, at paragraphs 40 and 41 of the Judgment Reasons, it is stated:
… There was a failure to conduct a reasonable investigation and insufficient evidence upon which to determine that any failings by the Claimant justified dismissal. … The dismissal fell outside the range of reasonable responses. No reasonable employer would have concluded that the Claimant was responsible, much less wholly and solely responsible, for the state of affairs about which it was concerned. Nor would any reasonable employer have treated the matter as sufficient to justify dismissal."
"12. The basis for the Respondent's submission was that because the Claimant was the head of the maintenance team, and all these matters involved maintenance, the Claimant must therefore be culpably responsible for all the alleged failures. That was the same broad approach taken by the Respondent in respect of the actual dismissal which was found to be unfair. It takes no account of the possibility of others being responsible or any explanation by the Claimant. In fact, the Claimant had a plausible explanation for many of these matters."
"16. … in view of the lack of any sufficient investigation or reliable evidence which would support a fair dismissal, and the Respondent's tendency to pre-judge the Claimant as responsible for any maintenance related failure, the exercise of seeking to reconstruct what might have been was so uncertain that no sensible prediction based upon the evidence could properly be made."
The Liability Appeal and the Parties' Submissions
The Respondent's Submissions
The Claimant's Submissions
The Remedy Appeal and the Parties' Submissions
The Respondent's Submissions
The Claimant's Submissions
The Relevant Legal Principles
Liability
"(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 held.
(2) A reason falls within this subsection if it -
…
(b) relates to the conduct of 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."
Remedy
"(2) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly."
"(1) Subject to the provisions of this section and [section] 124 … the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.
…
(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."
Discussion and Conclusions
Liability
Remedy