Appeal No. EAT/166/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 7th October 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR A C BLYGHTON

	MR A D SCOTT

MR A KHAN	APPELLANT

LONDON BOROUGH OF TOWER HAMLETS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR F SLEVIN
(Of Counsel)

	

	MR JUSTICE MUMMERY (PRESIDENT):  This is the Preliminary Hearing of an Appeal brought by Mr A Khan from the Decision of the Industrial Tribunal held at London (North) on the 22nd June and 11th October last year.  

	For reasons notified to the parties on the 18th November 1993, the Tribunal unanimously decided that Mr Khan's Application for Unfair Dismissal from his position as a teacher, by the London Borough of Tower Hamlets, should be dismissed.

	Mr Khan's complaint, as stated in the Application presented on the 24th April 1992 was that he had been unfairly dismissed following an incident in a class in which a pupil had spat at him, threw a bunch of keys at him and left the room.  Mr Khan responded by spitting, not at him, but roughly in his direction, in the dustbin near the door.  This led to a Disciplinary Hearing on the 29th January.  Following that hearing, he was dismissed.  Mr Khan's complaint was that that was unfair.

	Mr Khan was disappointed by the Industrial Tribunal's rejection of his complaint.  He appealed to this Tribunal by Notice of Appeal served on the 29th December.

	There is only a right of appeal to this Tribunal on point of law.  The purpose of this Preliminary Hearing is to decide whether there is an arguable point of law raised on the Appeal.  If there is not, no purpose would be served by allowing the Appeal to be heard at a full hearing of the Tribunal.

	Mr Slevin, who has appeared on behalf of Mr Khan, has raised three points which he submits constitute arguable points of law.  The first, as we understand it, is that there was aninconsistency in the decision of the Tribunal which was stated in the alternative.  The primary finding of the Tribunal was that Mr Khan had been summarily dismissed by 
Miss Jenkins on the 29th January 1992, and that that dismissal was fair, because the principal reason for the dismissal was a belief on the part of Miss Jenkins that Mr Khan spat back in the direction of a pupil who had spat at him and that spittle had fallen on another pupil and a member of the staff.

	The Tribunal was satisfied that this was a genuine belief on reasonable grounds of misconduct which had been sufficiently investigated before the decision to dismiss was taken. The Tribunal was satisfied that Miss Jenkins was entitled to consider that the conduct amounted to gross misconduct.  The decision to dismiss was within the band of reasonable responses of a reasonable employer.  

	The Tribunal stated, in the alternative, that if they were wrong in holding that Mr Khan was dismissed, he had resigned with effect from 11th March 1992, by virtue of a letter from him dated 10th March 1992.  The Tribunal concluded that, whether 
Mr Khan was dismissed or whether he had resigned, his application failed.

	There is no arguable legal error in a Tribunal stating alternative reasons for its decision. The main point before the Tribunal was the complaint by Mr Khan that he had been dismissed unfairly.  The Tribunal found that he was dismissed, but it was not unfair.  

	There was another issue before the Tribunal raised by the Notice of Appearance of the London Borough of Tower Hamlets.  The principal defence raised by them in the IT3 was that Mr Khan had unilaterally terminated his contract of employment by the letter of resignation of the 10th March.  That resignation was accepted, as notified by the Council to Mr Khan on the 13th March.

	The Tribunal had before them an issue on the question of resignation.  They were entitled to make an alternative finding in relation to that issue.  It is common in proceedings of all kinds, including those before Industrial Tribunals, for allegations by way of complaint or defence to be made in the alternative.  There is no legal objection to a decision expressed on alternative grounds.  We therefore find that the first point is not an arguable point of law.   

	 The second point turns on the interpretation and application of the Staff Code for Teachers Section X, which relates to discipline.  The Staff Code provides for Summary Dismissal in these terms, paragraph 16:

		"Nothing in this section shall prevent the summary dismissal of a teacher who has been guilty of gross misconduct. The decision shall be taken by the Education Officer (acting by an officer of not less that Assistant Education Officer status) and the teacher concerned shall have the right to appeal against the decision (i.e. for reinstatement) within 7 days of the date of dismissal.  The appeal shall be heard by an officer of the Education Officer's Department of a rank senior to the one taking the decision, and the teacher may be accompanied by a friend at the hearing."

	Mr Slevin pointed out, correctly, that in order to understand that paragraph, it is necessary to return to the definitions at the opening of Section X which define "gross misconduct" as: 
	
		"Conduct so serious that the teacher has been fundamentally in breach of contract or evinced an intention not to be bound by the terms thereof, or other serious misconduct such as to demonstrate unfitness to be a teacher." 

"Education Officer" means:

		"Any Chief Officer in the Education Department (as defined in the Standing Orders of the Authority) other than the Chief Inspector, and includes any nominated officers acting on behalf of such a Chief Officer."
	
Finally,

		"Chief Inspector includes nominated Inspector acting on behalf of the Chief Inspector."

	The point which arises is that the Tribunal found as a fact, that the dismissal was by
Miss Jenkins on the 29th January 1992.  Miss Jenkins was a Chief Inspector.  The Chief Education Officer was Anne Sofer.  There was no evidence that she herself effected the dismissal.  

	The argument is that, as Miss Jenkins dismissed Mr Khan, there was an error because, under the Rules, Miss Jenkins was a Chief Inspector.  She could not be an Education Officer and therefore there was no power in her to dismiss Mr Khan.  So it is said that the Tribunal, in holding that there was an effective dismissal which was unfair, had misinterpreted and misapplied that provision of the Code.  

	We are not satisfied that this is an arguable point of law.  The Tribunal heard this submission, as recorded in paragraph 12 of the Decision.  Mr Hussain, who then appeared as Counsel for Mr Khan, submitted that the Disciplinary Hearing was procedurally regular, because Miss Jenkins, as the Chief Inspector was, by definition, not an Education Officer for the purpose of paragraph 16 of the Code.

	The Tribunal went on to say, however, that paragraph 16 provides that the decision to dismiss should be taken by the Education Officer, with the important words in parentheses:

		"acting by an officer of not less that Assistant Education Officer status"

	The position was that the Education Officer, who, in this instance, was Anne Sofer, was acting by an Officer, Miss Jenkins.  The Tribunal found that Miss Jenkins status was above that of an Assistant Education Officer.  Therefore she had power to dismiss Mr Khan.  The Tribunal found there was no procedural irregularity in the Disciplinary Hearing.

	We agree with the interpretation that was placed by the Tribunal on paragraph 16. There is no arguable point of law.  It is made clear that the decision to dismiss may be made by the Education Officer, acting by an Officer of the requisite rank.  Miss Jenkins was an officer of the requisite rank.  She was not acting as the Education Officer.  The definition of Education Officer, which excludes the Chief Inspector, is not applicable.  

	The final point made by Mr Slevin was that Mr Khan had not resigned.  The decision of the Tribunal to the effect that he had resigned on the 11th March, by virtue of the letter of the previous day, was wrong in law.  He says that it is clear from the facts found by the Tribunal that, far from resignation, it was constructive dismissal.

	The difficulty with this argument, based on the premise that Mr Khan was told to resign, is that first, whether someone has resigned or not, is a question of fact.  The Tribunal found it a fact that Mr Khan had resigned.  There is no appeal against that finding of fact.  Secondly, the case of constructive dismissal is was never advanced in the complaint presented to the Industrial Tribunal in the IT1.   As far as we are able to see, it was not a claim that was ever advanced at the Hearing.
  
	Mr Khan's case was quite simply that he had been dismissed unfairly.  The Tribunal looked to all the facts and found that he was dismissed.  If he had not been, he had resigned. If he had been dismissed, it was fairly.  In those circumstances, the real complaint is against the findings of fact by the Tribunal.  There is no error of law that is arguable.  There is therefore no purpose in allowing this Appeal to proceed to a Full Hearing.  We shall therefore dismiss the Appeal at this stage.  We do so with sympathy for Mr Khan, but sympathy does not give us the power to hear and decide Appeals.  If, on a proper analysis of the situation, there is no error of law the Appeal must be dismissed.