Appeal No.	 EAT/785/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 July 1998

Before
HIS HONOUR JUDGE J HULL QC
MR S M SPRINGER MBE
MR T C THOMAS CBE

THE GOVERNORS OF ST EDMUND'S COLLEGE	APPELLANTS

1) MR M J MEATYARD	RESPONDENTS
2) MS A HELPS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR BUCKLEY
(of Counsel)
Messrs Curwens
Solicitors
Crossfield House
Gladbeck Way
Enfield
Middlesex EN2 7HT	

	JUDGE J HULL QC:	This is an appeal to us by St Edmund’s College against a decision of the Industrial Tribunal sitting at Bury St Edmunds under the Chairmanship of Mr Mitchell with two industrial members.   That Industrial Tribunal sat on 10 October 1997 and 6 January and then again in May of this year to hear complaints by the two people who are the Respondents to the appeal, Michael John Meatyard, schoolmaster, and Ms Ann Helps, schoolmistress, who were employed by the college.   The college, we are told, is an ancient foundation, a member of the Public Schools Conference and a Roman Catholic establishment which takes both girls and boys.   The complaint of Mr Meatyard was that he had been wrongly dismissed and of Ms Helps that she had been unfairly dismissed.   

	We would like to say at once that we have a great deal of sympathy with everybody involved in this story.   The college undoubtedly - we have heard nothing to doubt the good name and responsibility of the college - they take - as a college must which takes boys and girls up to the age of 18, sixth formers - they take risks, which they have to, so that these young people can grow up in a sensible way.   Among the activities which are allowed, we are told, are that alcohol, on proper occasions and in moderate amounts, may be taken by these older pupils and they are allowed to go to social occasions in the rooms or houses of masters and mistresses;  thus, so to speak, foreshadowing what may well happen if they have the good fortune in due course to go to university and go to, perhaps, the rooms of fellows of their college or whatever it may be and have discussions late at night about the things which young people often do have discussions about.   All that seems entirely praiseworthy and understandable, but it does, of course, involve certain risks and this story arises out of an occasion when something went wrong.   There was a mishap.

	What happened was that a number of pupils asked Mr Meatyard if they could come to a coffee evening on Friday 17 January 1997 and Mr Meatyard, the head of physics who was first employed by the college on 1 April 1995, said yes, he would be pleased to see a number of young people that evening at 10.30.   He invited also Ms Helps.   The first mishap was that most of the pupils did not turn up;  the only one who did turn up was a girl called Jane.   Apparently the two members of staff and Jane found plenty to talk about, they went on talking until after 2.00 in the morning.   During this time Jane drank, as the Tribunal found, two or three small glasses of cider and there came a time - Miss Helps was smoking, apparently, and the room became very stuffy - when Mr Meatyard had to go out and exercise the dog and Jane said she wanted to come out and get some fresh air and went out with him.  (She was supposed to go back to her house with Ms Helps in due course.)   One can comment at once by saying it was imprudent for Jane to be allowed to remain out there with no other pupils until 2.00 in the morning:  it seems much too late for a girl of that age to be out, but there it is.   These things happen from time to time.

	In fact, whether because she had had too much to drink or whether for quite other reasons, for example that the room was stuffy, Jane was not very seriously ill but she was sick twice when she went out and Mr Meatyard, in due course returning with her, found that Ms Helps was not there, so Mr Meatyard took her round to her house himself and parted company with her at the door.   The door was opened by a lady who was responsible there, a senior schoolmistress, and Jane came in.   Her condition alarmed the schoolmistress, Mrs King.   She said that Jane’s face was dirty - she had thought at first that she had bruised herself - and she smelled of drink and apologised for her lateness and so on.   Generally speaking, Mrs King was most displeased by this.

	That was the substance of the situation.   Ms Helps had - again, it is a mishap and it should not have happened - gone off without the girl and just made her own way back leaving instructions about how she should be telephoned;  and she left a wrong telephone number.   So that was the top and bottom of it.   It was a mishap from start to finish.   The girl should not have stayed out so late.   It looks very much as if she had had, perhaps, a glass too many to drink, she was unaccustomed to drinking no doubt, and so the net result was that she was left outside with a senior schoolmaster and he took her back to her house.   It would no doubt be a source of regret anyway and one would expect that such an incident would result in some responsible person, probably the headmaster, saying to both Mr Meatyard and Ms Helps that this should not happen again and that it was imprudent to allow such a thing to happen.   There was no suggestion whatever and no evidence whatever of any impropriety taking place between any of the persons who are part of this story.

	In fact a far more serious view was taken.   Mr Buckley, who has addressed us, for which we are very grateful - the college had the advantage of his services too before the Industrial Tribunal - has put before us something which I can describe without wishing to be in the slightest bit offensive as “an old-fashioned view” - which would undoubtedly appeal to a number of people - of the responsibilities of schoolmasters and schoolmistresses in a boarding school such as this.

	He has said that what happened suggested a very grave dereliction of duty by Mr Meatyard and Ms Helps.   “It is scandalous that Mr Meatyard should be outside the school limits late at night with a girl pupil who had so much to drink that she was unwell.   It was very improper that the girl should have been allowed to remain until 2.00am.”   Mr Buckley made to us suggestions which he said were not going behind the findings of the Tribunal and he said that they gave rise to very serious concern.

	Now we have no doubt that the governors and headmaster of a school like this are fully entitled to say what is to happen in their school;  to what extent strict standards are to be relaxed, to what extent, if any, alcohol is to be permitted, to what extent, if any, senior pupils are to be allowed outside their bedrooms after, say, 10 o’clock at night;  of course they must say.   The view taken here was very adverse;  as I say, the headmaster looked into it, there were inquiries.

	The headmaster wrote the next day to Mr Meatyard and Ms Helps.   Two days later, on the Monday, he saw both of them, he sent written allegations of serious misbehaviour to each of them and he saw them separately on 7 February (Mr Meatyard was accompanied by a colleague) and the headmaster then had an exchange of correspondence with Mr Meatyard:   Mr Meatyard took a fairly high line.   The headmaster was asking him to wait whilst he completed his enquiries and, in particular, till he saw Ms Helps and heard her version of it;  Mr Meatyard, in effect, precipitated a decision by writing a fairly high-handed letter to the headmaster and the headmaster, there and then, dismissed Mr Meatyard - having, of course, seen him on several occasions.  

	Later, on 13 February, Ms Helps, accompanied by Mr Corrigan - an experienced member of staff - attended a disciplinary hearing.   The hearing went on for about three hours (this was on 20 February) and it appeared to both Ms Helps and Mr Corrigan that it was going very badly and therefore an adjournment was asked for.   There were negotiations and it was after the negotiations that Ms Helps put in her resignation, resigning, I think it was, on 30 April.

	Both Mr Meatyard and Ms Helps complained to the Industrial Tribunal.   At first they both complained of unfair dismissal but, bearing in mind that Mr Meatyard had only been employed since April 1995, he confined his complaint, eventually, to the allegation that he had been dismissed in breach of contract, being dismissed instantly.

	Those were the issues before the Industrial Tribunal which devoted all this time to it.   Both sides were represented by Counsel.   The Industrial Tribunal have given their reasons in a long and careful decision.   They went through the facts at length, much more fully than I have.   They had heard, of course, Mr Meatyard and Ms Helps, they heard a great deal of other evidence and, having gone through the evidence and made various comments on that - they mentioned the submissions which had been made to them and they reviewed the law - the first matter which they had to consider was Mr Meatyard’s case.   They said, “Was he wrongfully dismissed?   Was he guilty of conduct which as a breach went to the root of the contract and which justified the headmaster in saying: ‘you are dismissed instantly’?”  They make some comments in considering this.   They comment on the reliability of the evidence which they had heard.   They found that the girl, Jane, who had given evidence to them was a thoroughly reliable witness.   They found Mrs King an unsatisfactory witness in various ways. They did not refer to all the evidence but when they came to Mr Meatyard - having said there was no suggestion whatever of any impropriety and set out Mr Meatyard’s ultimatum, as it was in effect, for the headmaster to get on with the matter - they said:

“...our unanimous conclusion is that at most this was a minor error of judgment deserving of no more than a reprimand.   The facts simply do not add up to the view that the headmaster expressed in his letter of dismissal.”

	The headmaster’s view, they said, 

“appears to have stemmed from the incorrect and inadequately explored premise that the two applicants presided over a girl pupil becoming as seriously intoxicated as Mrs King would have us believe.
It is for us to determine this issue on the evidence which we have heard and we have had the advantage of Jane’s detailed evidence which we believe.   That evidence goes nowhere near establishing that Mr Meatyard had behaved in so un-professional a way in relation to this pupil as to amount to gross misconduct entitling the respondents to bring his contract to an end without notice.   Mr Meatyard was wrongfully dismissed and the question of remedy will be dealt with at a date to be fixed.”

	Then the Tribunal went on to Ms Helps’ position.   They look into that with considerable thoroughness and they find that she was dismissed.   They quite rightly refer to the case of Logan Salton v Durham Country Council [1989] IRLR 101 and quite rightly direct themselves that it should not be easy for a person who is in the disciplinary process, an employee, fearing that things are going badly, to resign to avoid dismissal and then say “the fact, the reality is that I was dismissed”.   So they considered that very carefully and they say, having considered all surrounding circumstances, they are of the opinion that this was a situation in which it was a case of “resign or be dismissed”.   They accept what was said by Mr Corrigan about that and they find that that was the reality of it.   They go on to decide, therefore, whether she was fairly dismissed.   (Ms Helps, of course, had more than two years service and was entitled to complain of unfair dismissal.)

	They say:

“We do not consider that the respondent acted reasonably in treating it as a reason to dismiss the applicant.   The investigation carried out by the headmaster was flawed.   He relied upon statements which were undated, unsigned and not shown to Ms Helps.   No written statement was taken from Jane given in her own words.   She was interviewed by the headmaster in circumstances where even the house-mistress, who was deputed by him to be her ‘friend’ and who did not speak to her at all, concluded that she was uneasy about whether Jane had given a genuine and full account at that meeting.   As Ms Helps put it, the headmaster made his decisions based upon evidence which he contended had been given to him by Jane but which she denied she had given.”  [So they went on]...   In our judgment in a case where the headmaster was clearly treating it as a dismissible offence it was wholly unsatisfactory that full statements of evidence were not taken and shown to Ms Helps in good time for the hearing so that she could counter those allegations in whatever way she felt appropriate.”

	They went on to say that Ms Helps was at fault.

“She [had] committed professional errors of judgment in not bringing the evening to an end earlier and in leaving Jane and returning to her room without escorting her safely back to the boarding house.   Simply leaving a message to the effect that Jane could telephone her to be admitted to the boarding house at that time of night was not satisfactory.”   [They said she was 25% in contribution].

	So that was the view of the Industrial Tribunal in this matter;  a matter which was bound to be treated very seriously both by the school and by the schoolteachers concerned, for their reputations were at stake;  the good name of the school was at stake. 

	That was the view that was taken by the Industrial Tribunal.   Clearly the view which Mr Buckley pressed on us today was a view which they could have accepted.   They could have taken what I have described as an old-fashioned view, but which is none the worse for that, that strict rules should have been observed.   The Tribunal went into that to some extent.   They said here there were no rules about hours by which children should be back.   Mr Buckley counters that and says “well it was clearly understood and, indeed, everybody should understand, that such young people should not be out late at night”.   That was a matter for the Tribunal to consider.   

	They put the view that this was an incident which did not, in fact, reflect seriously on anybody.   It was a mishap.   It was perfectly proper for the girl, Jane, to go to this coffee evening, as they said it was euphemistically described, and perfectly proper for her to have drinks there;  alcohol.   They certainly did not approve of her being out late at night.   They thought the school was entitled to disapprove of that.   They thought Ms Helps, in particular, was guilty of errors of judgment, but they did not take the severe view which has been put to us.   Now, it was a matter for them, in this context - of course it was for the school to say how it ran its affairs, of course it was for the school to say what rules there should be - the Tribunal found that there were no rules as such.   

	What the Tribunal had to do was look and see first of all whether there was a breach of contract by Mr Meatyard which went to the root of his contract;  a serious neglect of his duties as one of the people, as has been put to us, in loco parentis.   They said there was not and the headmaster was not entitled to take that view.   

	In all the circumstances of the case, with regard to Ms Helps, they said the disciplinary inquiry was flawed and imperfect.   That is not a serious criticism of the headmaster.   The headmaster is not by profession a human resources manager or a person accustomed to taking formal disciplinary hearings.   They thought he had not taken proper statements.   It is the sort of mistake any headmaster might make but they criticised him to that extent in the context of an unfair dismissal, which they found it to be, and for that reason found that the dismissal was procedurally flawed.

	Therefore they made findings on liability in favour of each;  Mr Meatyard and Ms Helps.   

	Now we have the appeal to us prosecuted with great vigour by Mr Buckley, who has put before us everything which we ought to hear in the interests of the college.   We have a 17 page Notice of Appeal and a Skeleton Argument to add to that in which these points are expounded:   the Notice of Appeal sets out a large number of complaints.   It is said, for example, that there is no evidence to support a number of findings of fact.   It is said that the Tribunal omitted to make findings of fact where they should have done.   It is said that certain findings of the Tribunal are perverse and Mr Buckley addressed to us a speech which one could not listen to without sympathy and which, we have no doubt, reproduces in part his speech to the Industrial Tribunal, in which he says “No tribunal could reasonably ignore the seriousness of what happened in this case in the context of a boarding school - a reputable, a famous school, dealing with young pupils of both sexes - in all the circumstances.”   Putting that together with the other complaints he says “this was a perverse decision”.

	With regard to the allegations that there was no evidence to support certain findings it appears to us that the sort of points which are made are without any substantial merit at all.   For example (I only take this an example) there is a point pressed on us by Mr Buckley;  the Tribunal found that what Jane and the two teachers had spent their time talking about was spiritual and personal relationships, matters of that sort.   The sort of matters which, of course, everybody knows intelligent young people of that sort of age always do want to talk about at these late night sessions which seem to be so popular with young people of all generations.   It is said there was no evidence to support that, or any trace of evidence, certainly no evidence that that is how they spent the four hours and, in fact, says Mr Buckley, all those who were present - that is to say the two school teachers and Jane - all said that “we cannot remember very much about it”. “That”, says Mr Buckley, “by itself should have led to a very adverse inference about the nature of this meeting”.   

	That is eminently the sort of point which the Tribunal would decide on the evidence.   They had heard enough to make them think this was the substance of what was going on;  they were entitled to reach that conclusion.   We realise that what all these criticisms amount to is, first of all, the frontal attack which Mr Buckley makes, namely that this was a perverse decision and one which no reasonable Tribunal could possibly arrive at;  but they are, secondly, a voyage through this long and careful decision by the Tribunal picking out particular points for criticism which, in our view, having considered them as carefully as we can, do not add up to any substantial criticism of the Tribunal’s decision.   Almost every one of these points in the 17 pages invites the colloquial retort of “so what?” or, “they were perfectly entitled to take that view as a tribunal of fact, they might have taken a quite different view”.   

	We have considered them, as I say, as carefully as we can.   We do not think that, treating them justly, there is any ground for saying that this Tribunal erred in law.   It goes without saying that a different Tribunal, ex hypothesi, might have reached a different conclusion.   That is in the nature of any tribunal of fact.   A different Tribunal might have been inclined to take a more serious view.   A different Tribunal might not have assessed the witnesses in the same way.   In particular, this Tribunal is criticised for saying that Mrs King’s evidence was not, in their view, reliable, and giving no grounds for that conclusion.   We think, looking at the decision, they did give grounds, but in any event, no Tribunal is bound to give reasons for their decision that a particular witness is not wholly reliable, or that a particular witness is reliable, or that they reject the evidence of a particular witness.   To do so would mean their giving personal details perhaps about a witness and making remarks about the character of a witness which would be deeply offensive.   It is sufficient for them to state their conclusions, in our view, in a rational way.

	We have looked at the entire case, as I say, anxiously, because of the importance to the parties.   We conclude that this is not a case in which we can detect any fairly appealable ground of law.   We cannot consider appeals on facts.   Therefore the appeal must end now and be dismissed at this stage rather than going to a full hearing.   But we would repeat what we have said, that we take the view that what has happened in this case reflects no discredit on the college and no discredit on the schoolmaster and schoolmistress concerned except to say that there has been a mishap and we think that the Tribunal were quite entitled to take that view of the matter, notwithstanding the view which others have taken, that this was a very serious matter.   We are very pleased to hear that the school is anxious in its care of its young people and no doubt if the headmaster wishes to lay down strict rules it will end any further mishap of this sort.   That is entirely a matter for him and the other members of the staff, we have nothing more to say about that.