Appeal No. EAT/1034/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16th November 1995 		and 23rd February 1996
		Judgment delivered
		On 16th April 1996

	Before

	HIS HONOUR JUDGE H.J. BYRT Q.C.

	MISS C HOLROYD

	MR D A C LAMBERT

"A"	APPELLANT

"D"	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	"A"
(The Appellant in person)

For the Respondents	MISS R COE
(of Counsel)
Mrs K Riley
Chief Executive's
Department
Derbyshire County Council
County Offices
Matlock
Derbyshire
DE4 3AG

	JUDGE BYRT Q.C.:   This is an appeal against the decision of the Industrial Tribunal sitting at Nottingham on 13th and 14th September 1994 when it was unanimously decided that the Applicant (now the Appellant) had not been unfairly dismissed.

	The background facts of the case, as agreed or found by the Tribunal, are as follows: The Appellant is a teacher aged 33. He has been employed by the Respondent Education Authority since 1983 at a school in their area, the name of which is not material.

	In 1992, he befriended a girl pupil at the school, then aged 12. She will be referred in this decision as A. Her parents were going through an unhappy stressful time and their marriage was breaking up. This necessarily made its impact on A who, at the same time, was having to cope with all the ordinary problems of growing up. The Appellant became aware of her plight, and lent her support and encouragement both by conducting a dialogue with her inside and outside school, and by correspondence. The association became identified by the girl's young friends at school and she became the butt of a certain amount of teasing comment, and, in February 1993, she broke off her friendship with the Appellant. The break continued until approximately July of that year when, once more, the association was resumed.

	During the break, the Appellant became acquainted with A's older sister, J. After a few chance meetings which seem to have no significance in themselves, J became attracted to the Appellant and she suggested, he says, that they should move on to a sexual relationship. This prompted A to write the Appellant a letter of which we have not see a copy. The Appellant thought that letter required a reply. So he wrote to her a letter which he dated 9th. It has been accepted that that was the 9th August 1993.

	This letter, dated the 9th, is the focal point of this case. The letter must be read as a whole for an assessment of its true import, and reference to it in detail will be made at a later point in this decision. The writing of it seemed to have had a twofold purpose. The first intent seems to have been to refute any suggestion that the Appellant wanted a physical relationship with J; indeed, he made plain to A that it was J who had made all the running in her approaches to him. The second objective of the letter seems to have been to convince A that, far from being interested in J, it was her whom he loved. He went some way to stress that his love for her was non-sexual but the language in which he couched his sentiments was such as to arouse the deepest suspicions of any adult into whose hands the letter found its way.

	A was staying or about to stay with her father, now separated from the mother, at the time she received the letter, and shortly thereafter it came into his possession. He took it to the school's Headmaster, Mr Smith. The Headmaster took it to the Police, and in time the Child Protection Unit of the Social Services Department became involved. The Police interviewed A, and the record of that interview was placed on video. The Appellant was arrested and questioned. There is no significance in the sequence in which we have placed those events. In fact, as a result of the Police enquiries, a decision was taken by them that no charges would be brought against the Appellant, and he was released. The Social Services Department took a little longer to decide it was unnecessary to register A as a child in need of protection.

	However, in parallel with the above enquiries, the School authorities began their own investigation. This was conducted by a Mr Horncastle, the senior area education officer. As a result, the Appellant was suspended from his school duties on 23rd August, and required to attend before a disciplinary sub-committee of the Board of Governors on 22nd October 1993. Mr Horncastle wrote to him on 7th October, setting out, in briefest form, the charges he had to meet as a result of his investigation. There were nine complaints in all, five of them stemming from the correspondence the Appellant had sent to A, and two based on what A had told the Police in interview. The remaining two complaints related to correspondence the Appellant had sent to another girl.

	On 22nd October, the disciplinary sub-committee of the Board of Governors, chaired by Mr Page, heard the charges. The Respondents' case was presented by Mr Horncastle and consisted of evidence by Mr Smith, the Headmaster, and WPC McGrath. The evidence of the policewoman was based on notes she made of her interview with A. The Police declined to produce the video which had been made of that interview, a transcript of it or the policewoman's notes. So neither the sub-committee nor the Appellant knew in advance what A's relayed evidence was to be. The Appellant also gave evidence and argued his case, supported by Mr Groake, a trade union representative.

	In the result, the sub-committee found all nine charges proved. They found three of them to amount to gross misconduct; the remaining six they held to be mere misconduct. The three instances of gross misconduct all concerned A. Two of those instances were based on the Appellant's correspondence with her. The first found that the language in which the letters were written was "inappropriate unprofessional". The second relied on a statement contained in the Appellant's letter of the 9th to the effect that he had "touched, held and kissed" A. The third proven charge is but a reflection of the second, namely that he had "kissed, hugged and touched her". Proof of this relied on A's interview with the Police. The sub-committee's decision was that the Appellant be dismissed for gross misconduct, but they added a proviso that he should not be debarred from seeking further employment as a teacher provided it was in Further or Higher Education. The Appellant appealed to the full Board of Governors.
	The appeal was heard on 30th November and 1st December before a panel of nine governors, chaired by a Mr Phillips. They heard evidence from the same witnesses, together with another, the Social Worker, Hazel Hughes, who had had dealings with A as a member of the Child Protection Unit. Again, the Appellant was supported by Mr Groake. The Board confirmed the sub-committee's findings of gross misconduct and those relating to lesser offences. They re-affirmed the decision to dismiss.

	On the 13th and 14th September 1994, the Industrial Tribunal heard the Appellant's application that he had been unfairly dismissed. The Respondent's case was presented by Ms Coe of Counsel who has also argued this appeal before us. Before the Tribunal, they abandoned reliance on the relayed evidence of A's interview. They called Mr Horncastle, Mr Page, the chairman of the disciplinary sub-committee, Mr Phillips, the chairman of the appeals board, and Mrs Riley, a solicitor in the Respondents' employment who had advised both the domestic hearings on points of procedure. Although the bulk of the Appellant's correspondence with A was before the Tribunal as evidence of misconduct, the Respondents focused attention on the letter of the 9th as being the only letter which could be said to give rise to gross misconduct.

	The Tribunal concluded that:

(1)	though the Respondents' rules of procedure had not been strictly adhered to in either of the domestic hearings, the discrepancies were not such as to make the hearings unfair;

(2)	the reason for the dismissal was what was said in the letter of the 9th;

(3)	the employer had acted reasonably in holding that the letter was sufficient reason for dismissal, and 

(4)	the dismissal was fair.

	The Appellant now appeals to the EAT on a point of law, or, more precisely, on a number of such points. He has represented himself, and done so with clarity, thoroughness, and courtesy. His argument may be summarised under four broad separate headings. These are:-

1)	procedural defects at the disciplinary hearing and on appeal;

2)	he has contended that the misconduct alleged against him related solely to his activities outside the scope of his employment, at a time when the Respondents had no authority to discipline him;

3)	he had contended that whatever might be said against him concerning the letter in question, nothing in it amounted to gross misconduct, and

4)	the Industrial Tribunal's decision was inadequate in certain of the findings, was erroneous in others, and generally was perverse.

We will deal with each of these points in turn.

Procedure
	The Appellant had argued four principal points under this heading.
	First, he says that the Respondents' model disciplinary procedure was a code which was incorporated into his contract of service, and, accordingly, they were contractually bound to comply with its terms. This is new point which was not taken at any stage below. Perhaps for this reason, there has been no evidence directed to the status of the code. Accordingly, in the absence of such evidence, we are unable to support the Appellant's first submission. Notwithstanding that conclusion, there is a requirement in law that the procedures followed during the disciplinary process should be fair and reasonable, and, prima facie, it might be expected that that would require compliance with the Respondents' own procedural code. Where, therefore, the procedures adopted did, as the Tribunal found, depart from the code in a number of respects, it is necessary to consider whether those departures led to unfairness and worked an injustice on the Appellant. The Tribunal considered the procedural discrepancies relied on by the Appellant, and whilst acknowledging their existence, concluded that they were not so substantial as to make the hearings unfair. Our function is to consider whether that conclusion was a reasonable one.

	The Appellant's next procedural point is that, whilst the model code provided for the Headmaster to be the investigating officer, it was Mr Horncastle, the senior area educational officer, who took on that role. He says that the Headmaster was designated for this function with good reason. He would or should be totally aware of the environment in which any alleged act of misconduct has been committed. He would best know who might be able to throw light on his investigation, and thereafter be best able to get a genuine response to his questions, whether it be of a teacher, a pupil, or parent. An outsider such as Mr Horncastle, for instance, might be thought to be at something of a disadvantage in these respects. Could it be said that this disadvantage would inhibit a fair and reasonable investigation being made?

	Ordinarily, we would accept that it is undesirable, without good reason, to have an area officer investigating the conduct of a member of staff employed within such a close community as a school. Where, as here, the teacher is excluded from contacting people within that community or the parents associated with it, it is essential that the investigating officer should know where to go for evidence which puts the alleged misconduct into a fair and proper context as well as for evidence which supports the charge. In this case, no reason was advanced why Mr Smith, the Headmaster, was displaced from his designated role.

	We accept the Industrial Tribunal's implicit conclusions that their departure from the code in this respect worked no unfairness against the Appellant. What needed serious and careful investigation was the sinister suspicions to which the letter of the 9th gave rise. These were investigated by WPC McGrath and Ms Hughes and, on this aspect the Appellant was exonerated. All that remained to be considered was the terms of his letter itself - and those spoke for themselves - and the proper context into which it should be put. In our view, Mr Horncastle could not satisfactorily investigate its proper contextual setting but the situation was remedied at the hearing when the Appellant was able to put in evidence the many supporting letters he received from parents and ex-pupils, and by the evidence of the Headmaster himself.

	The Appellant makes one other point with regard to Mr Horncastle's role. He says that by reason of the position in which he was employed by the Respondents, he was able to exert undue influence upon the governors, both at the initial disciplinary hearing and on appeal, because he represented the Educational Authority who appoints them and funded the school. He further suggested that Mr Horncastle was able to exert such influence, especially in the case of Mr Page, the sub-committee's chairman, because they worked in the same department of the Authority.

	There was no evidence substantiating the factual position behind such assertions because the imputations had not previously been made. That, in itself, is sufficient to dispose of this point, but, as the Appellant was representing himself, we enquired of Ms Coe, who was instructed by the Respondents, whether there was any agreed factual base to support this contention. We were informed that Mr Horncastle's department had nothing to do with governor appointments nor with school funding. Furthermore, Mr Page, an educational psychologist, employed by the Respondent authority, was not in any sense accountable to Mr Horncastle or anyone in his division or section. The governors had an autonomous responsibility in respect of school discipline. Such information made plain that there was not an agreed position which could be accepted by us to further the Appellant's point. In the circumstances, it is our view that this is not a point which can be taken at this stage.

	Next, the Appellant claims that the model procedures were further breached because the employers did not disclose statements of the evidence of WPC McGrath or Hazel Hughes at least five days in advance of the hearing as required by the code. In fact, they were never disclosed at all. He makes specific reference to the Respondents' failure to make available to him a transcript of the interview recorded on video or the notes those two witnesses made of it and of which they made use when giving evidence. It would seem that it was the Police who refused to produce the video, the transcript, or the notes. So the decision as to what written statements should be copied to the Appellant in advance was, in effect, taken out of the Respondents' hands. We are not minded to criticise the Police for their decision. We did not hear from them their reasons for their refusal but, no doubt, interviews with minors are hedged round with assurances of confidentiality, designed to win the confidence of the child.

	However, the Respondents had the option not to rely on the evidence of those two witnesses if the Appellant could not be provided with copy statements of it a reasonable time in advance. The fact that they chose to proceed on the basis of the full range of charges set out in Mr Horncastle's letter dated the 7th October and so had to rely on the evidence of those two witnesses notwithstanding, was their decision and they are answerable for its fairness. In our view, it was a serious procedural mistake to allow in this evidence when the Appellant had no advance notice of it. Ms Coe, who has adopted a realistic approach throughout her argument, has conceded as much. In view of the Industrial Tribunal's finding that, though some procedures were `faulty', none of them was such as to make the dismissal unfair, this is an issue which need further consideration.

	Mr Phillips, the chairman of the appeal board, is recorded in the Industrial Tribunal Chairman's notes as testifying that his board had discounted the evidence of these two witnesses. It is not quite so clear what Mr Page, the sub-committee chairman, was saying in evidence, as recorded in the same notes. But if their evidence to the Tribunal was an attempt to minimise the impact of what WPC McGrath and Hazel Hughes had to say, it was, in our judgment, unconvincing. Both the sub-committee and the appeal board found two of the complaints which relied on what A had told the police in interview, proved. Both hearings found one of those proven complaints to amount to gross misconduct and therefore such  as to justify dismissal. In those circumstances, it would be flying the face of logic to hold that the evidence of the two witnesses in question was unimportant and did not affect the minds of the disciplinary sub-committee or appeal board. If that evidence was to be let in without adequate steps being taken, such as advance disclosure, to ensure that the Appellant had a reasonable opportunity to assess it and to decide how best he might respond to it, how can it be said that the procedures, and therefore the dismissal, were fair?

	The Tribunal have not stated in their Reasons what was their thinking on this particular issue save to say that, in their view, the procedures were overall fair. We are therefore left to conjecture what their thinking might be. It could be they accepted the evidence of the Chairmen at its face value, namely that they had discounted what WPC McGrath and Ms Hughes had said. If that were so, it would be plain, for the reasons we have stated above, that the tribunal had misdirected themselves on the evidence. It could be they concluded that the procedural failure did not amount to a breach of the rules of natural justice. The rule they would be considering would be that which requires the accused to be placed in the position of knowing precisely with what he is accused and the detailed evidence whereby it would be substantiated. As Wood J said in Louies v Coventry Hood & Seating Co Ltd [1990] IRLR 324, it will be very rare for the procedures to be fair if the essence of the case against the Appellant is contained in statements the contents of which are not disclosed to him in advance. Though we are mindful that the failure to disclose statements in advance is not automatically unfair as was stressed in Fullers v Lloyds Bank Plc [1991] IRLR 336, the circumstances where failure to disclose would not be unfair are closely circumscribed and in our judgment, it would be a clear misdirection in law if the Tribunal, in fact, applied that authority to the facts of this present case. Last, it could be that the Tribunal adopted the approach disapproved of in Polkey v A E Dayton Services [1987] IRLR 503, namely that the procedural failure made no difference to the outcome of the case anyway. This was determined by the terms of the letter of the 9th. In our judgment, such an approach would be a misdirection in law also.

	We are diffident in offering up the above explanations for the Tribunal's reasoning and have done so only to demonstrate that we have canvassed the more obvious possibilities. The ultimate conclusion to which we are driven is that there is no explanation for the Tribunal's finding on this issue which does not entail a misdirection on law or an error of fact in their appreciation of the evidence which was given before them. Accordingly, in our judgment, the Tribunal's finding that the procedures were fair, notwithstanding this last mentioned defect, is not sustainable. In its place, we find that the procedures before the disciplinary sub-committee and the appeal board were flawed in this respect and unfair.

	The Appellant raises two further procedural points which we can deal with quite shortly. He complains that the appeal hearing was not conducted within 15 days of the receipt of the Appellant's Notice of Appeal as prescribed by the Respondent's disciplinary code. The notice was dated the 30th October. The date of the receipt stamp on that notice was indecipherable but it probably would not have been received before Monday, the 1st November, that is to say some 29 days before the hearing. However, there is a provision in the code which we would have thought would have to be included in any reasonable code, to the effect that the 15 day time limit can be extended by mutual agreement. The Appellant says that only his trade union representative, Mr Groake, was consulted about the date of the appeal hearing. It was presented to him as a fait accompli. If, at the time, he did not signal his unwillingness to accept that date, we are of the view that he might reasonably have been assumed to have agreed the extended date. If he did not, we think no unfairness arises from the extended date. There might have been some considerable difficulty in persuading the nine governors and other witnesses to find two days for the appeal hearing. Fixing a date some 29 days after receipt of the notice seems to us entirely reasonable. The Industrial Tribunal express no specific finding on this particular issue but we think it safe to assume that they were satisfied no unfairness arose from those arrangements, and we agree.

	Further, the Appellant complains that A's correspondence was used without his permission. We are satisfied that no privilege attaches to personal correspondence of this nature where it is relevant to legitimate proceedings. Accordingly, we see no impropriety in its use without the girl's permission in the disciplinary proceedings on the 22nd October and the 30th November 1993. It's relevance to the issues in this case is not in question.

	So much for the procedural issues upon which we think we need to comment. There now remains the two remaining substantive issues outlined earlier.

	First, there is the contention that the Appellant's employers had no authority to discipline him over the letter of the 9th because it was written out of school hours to a pupil who had also become a friend. We do not accept it is feasible or in accordance with common sense to compartmentalise the Appellant's relationship with a pupil in this way. The attempt results in artificiality, and the Appellant's own case manifests that this is so. His principle justification for developing his relationship with A in the first place is that he did so in pursuance of his pastoral role, as a teacher, towards the pupils of his school. When fulfilling that role, his influence and his licence to intervene stems from the fact that he is a teacher, and the girl a pupil at the same school. When and where he writes to the girl in pursuance of that role must, in our view, be co-incidental. How he relates to the girl is obviously important to her wellbeing but it also has an impact on his relationship with her when she is at school, on his relationship with the girl's school friends, and on their relationship with the girl. For instance, it was her school friends teasing her about her relationship with the Appellant which caused A to break their association in the February. Again, it was jealousy between the sisters which directly led to the Appellant's writing the letter of 9th. That jealousy stemmed directly from their respective relationships with the Appellant as a teacher at the school where both were pupils. Both these instances are instances of that interaction between the teacher and his pupils, and of that between the pupils themselves. Such instances have implications for the good order and discipline within the school, and, as such, must come within the responsibility of the Headmaster in his supervisory capacity and of the school authorities should disciplinary actions be necessary.

	The artificiality of the position for which the Appellants contends, persuades us that this submission is not sustainable.

	Last, the Appellant criticises the Industrial Tribunal's decision under these principal headings which we find convenient to take together. He says it was unreasonable or perverse of the tribunal to find that the only reason for his dismissal was the wording of the letter dated 9th; that, if that be their finding, it was unreasonable for them to hold it a sufficient justification for his dismissal. In any event, he says, their decision was so flawed by the paucity of their findings of fact, the error they made in the facts they did find, and the matters they failed to take into account, that the decision should be set aside.

	We find it was reasonable for the Tribunal to hold that the reason for the dismissal was the letter dated the 9th. The Appellant's own argument proceeded on the basis that, of all the letters he had written to A, that written on the 9th was the only one to raise the issue of inappropriate unprofessional language. Both disciplinary panels found that particular charge proved, and it is not, in our view, unreasonable to infer that they found the offending language was contained in that letter, especially when that inference was confirmed by the basis upon which the Respondents presented their case to the Tribunal. Both the disciplinary panels found it proved that the Appellant had touched, held and kissed  A, as a result of a statement to that effect by the Appellant, contained in the same letter. It is true that they found the same facts proved by A's statement to the Police but we do not find it unreasonable to infer that the disciplinary hearings found the admission contained in the letter to be the more reliable, probative evidence of those facts. In the circumstances, it was, in our view, reasonable for the Tribunal to have held that the letter, in its terms, was the principal if not the only reason for dismissal.

	Was it reasonable for the Tribunal to find that the letter, taken on its own, was reasonable justification for the dismissal?

	We are prepared to accept that the appellant in writing to A, was seeking to re-establish A's confidence in herself and her trust in him. He had encouraged and supported pupils at moments of crisis many times before, and been successful in his efforts in that behalf as the many letters from well-wishers showed. But to be that successful, entails the teacher in drawing emotionally close to the pupil. In doing that, he removes the artificial barriers which ordinarily are deliberately kept in place between the professional teacher and the student. He thereby steps outside the bounds of all his professional training, and places himself and the pupil at risk.

	A passage from the letter in question serves to illustrate our concern in this instance. The Appellant writes to this 13-year old girl in the following terms:

		"I do love touching you, holding you, kissing you. If you give me one wish it's that we'd go to bed together ... I mean just to sleep, to go to bed with you in my arms and wake with you next to me, would be heaven."

Throughout the letter, the Appellant stresses that he is not seeking sex with her but had the child responded by saying "lets lie together", we can only speculate how the Appellant would have responded without causing the child harm. We think he gambled on the good sense of the girl.

	Throughout his argument before use the Appellant sought to satisfy us that, notwithstanding conventional wisdom, he knew what he was doing, and it was not wrong. He maintained that position throughout the disciplinary hearings too, even although he was fully aware of the attitude of his employers towards his close involvement with the pupils because they had made it plain to him in July 1989 when he had received a formal written warning. Writing a letter in these terms amounted to a rejection of the school authorities guidance, and they must have been concerned about that. One has only to ask how the school governors would have stood if a pupil had come to harm because of her/his involvement with the Appellant and it became known that they, the governors, had previously known of the contents of a letter in these terms.

	We are of the view that the Tribunal's findings that the Respondents had acted reasonably in treating the writing of the letter as gross misconduct and a ground for dismissal, unimpeachable. How this conclusion marries in with our earlier finding that the procedures were unfair, we address in a moment.

	Last the Appellant criticises the Tribunal for certain factual errors in their Reasons and for the paucity of their findings. We are satisfied that the factual errors to which the Appellant drew our attention are of no consequence having regard to their findings in the concluding paragraph of their Reasons. We find more substance in the criticism that the Tribunal did not make explicit findings on more of the issues raised by the Appellant. It is essential that a party who has had his/her submissions rejected on important issues should be told the reason why they have been so rejected. However, the fact that the Tribunal did not state their conclusions on all the points raised, does not itself mean that they did not consider them. We have reviewed with some care, most of the points upon which the Appellant has sought express findings, and, without disrespect for his argument, there is nothing, save on the one procedural point we have mentioned earlier, which, in our judgment, could reasonably have effected the critical overall findings they did make.

	Now for our conclusions: We are of the view that the unfairness, inherent in the procedures of the domestic hearings, was of fundamental importance. Not only must justice be done, it must be seen to be done. Throughout the hearings, the Appellant had to contend with damaging evidence about which he would have had no more than a general idea in advance. In our judgment, it is inevitable that such a fundamental flaw in the procedures renders the dismissal unfair.

	And so we come to the question of compensation, and enquire whether it is necessary for us to remit the case to the same tribunal to determine quantum. Were we to do so, they would have to approach the issue by asking what difference it would have made had the offending evidence been excluded. Having regard to their findings as set out in their Reasons, we have no doubt they would have affirmed their findings that the reason for dismissal was the writing of the letter and that this, in itself, was sufficient reason for the Respondents to dismiss. And so the compensation to be awarded would have been nil. We think no useful purpose would be served by remitting the case to the Tribunal so that they might re-iterate those crucial findings. We are in a position to come to a finding on compensation in the light of the Tribunal's conclusions on the case, based as it was before them, solely on the contents of the letter of the 9th. We assess the Appellant's entitlement to compensation as nil. Our decision is that the appeal must be allowed to the extent that there be a finding of unfair dismissal. coupled with a determination that there be no compensation.