Appeal No.	 EAT/160/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 December 1999

Before
HIS HONOUR JUDGE D PUGSLEY
MRS M T PROSSER
MR A E R MANNERS

Governors of St David's School	APPELLANT

Mrs C O Head	RESPONDENT

Transcript of Proceedings

FULL HEARING

Revised

	APPEARANCES

For the Appellant	MR A SAMPSON
REPRESENTATIVE	
For the Respondent	MR P HENRY
REPRESENTATIVE	

	JUDGE PUGSLEY:

1.	This is an appeal from a decision of an Employment Tribunal in which they found the Applicant, Mrs Head, to have been unfairly dismissed.   

2.	The hearing took some nine days. The dismissal took place as long ago as 17th April 1997.  It is a matter of concern to us that this case now, in December 1999, comes before us and the issue of remedy has still not been determined by the Tribunal at first instance.  

3.	We must first of all set out our position.  We are not the Employment Tribunal sitting at Blackfriars or the Temple, re-hearing cases.  We must make it very clear that we are only entitled to intervene in a case if we can detect an error of law which, of course, includes perversity in the sense that there is a finding which there is no evidence.  

4.	Each case has a chemistry, evidence has an impact and that can rarely be recreated in an appeal court.  It is  not our task to rehear the case, we our bound by the findings of fact made by the Tribunal.  

5.	Difficulties inevitably arise where the dismissal relates to an employee who has been involved in an organisation for a very long period of time. If a tribunal is dealing with a specific and discrete issue its task is much simplier than when it is dealing with a course of conduct, which goes back over a period of time, it is inevitable that the case will take some time. 

6.	Mrs Head started with the school on the 1st September and she was dismissed in April 1997, though she was paid until August of that year.   She complained her dismissal was unfair in that the decision to dismiss her was a pre-judgement made before the disciplinary hearing  and regardless of the evidence, that there were not reasonable grounds for the stated reasons of dismissal, the Respondent did not carry out a full and proper investigation; the schools management did not comply with fair employment procedures in making the decision to dismiss, and the dismissal was not within the range of reasonable responses.  

7.	The Respondents, in their Notice of Appearance, contended that the reason for the dismissal was conduct or substantial other reason.  They argue that during her employment the Applicant was subject to a number of warnings relating to her conduct and her treatment and attitude towards pupils.  The warnings outlined a timetable for improvement which the Applicant met for the duration of the warning, but once it was lapsed the Applicant would appear to disregard both the content and spirit of the warning and revert to her previous standard of behaviour.  

8.	It was their case that it was this pattern of behaviour was designed to undermine the genuine efforts made by the school to correct her behaviour.  There were complaints in January and February 1997 and it is said there were thoroughly investigated.  There was in a disciplinary hearing, which was fair, and the decision to dismiss her was made thereafter.  She refused the offer of an appeal.

9.	The Tribunal, after summarising the rival arguments, then in a series of paragraphs under the heading the “the relevant facts”, set out a history of what had happened.  Although not a ground of appeal in paragraph 9 of their decision, where they were dealing with allegations of mock strangling, the Tribunal do seem to substitute their own view of the matter, of the explanation Mrs Head gave, rather than, as they should have done, remember that their task was to deal with the perception of the employer and were their reasonable grounds for that. We make that observation, but in no way does it affect our view of the eventful result of this appeal.   

10.	The recitation of facts shows that over a period of time there were a number of issues arose concerning the conduct and performance of Mrs Head.   In March of 1997, the school made a decision to suspend Mrs Head and Mrs Langley, the Deputy Head of the Senior School, conducted the investigation.  The course of that investigation was not a happy one.  The Tribunal set out various serious shortcomings of the investigative procedure.  Mr Henry, who is we gather a family friend, took part in the investigation representing the Appellant.  There are criticisms of the way in which Mr Henry’s attempt to do so were thwarted.  The Tribunal note with a certain irony, that Mrs Osbourne’s evidence to the Tribunal was Dr Stevens was there because he was a University Teacher with long experience for education and personnel matters.  Dr Stevens was rather more modest and told the Tribunal he had no knowledge or experience of personnel matters. (See para 27).

11.	Following the sequence through, the Tribunal noted at paragraph 29, that it was evident to the Tribunal from the testimony of Dr Stevens and the comments he made in the course of the disciplinary hearing, that he thought the record of Mrs Head spoke for itself.  There was an above average number of complaints and therefore she must be seriously lacking as a teacher.  He was not concerned to look at the individual details of the incidents and judge them on their merits.  We are bound to say that this view was echoed itself, in the submissions made to us by Mr Sampson who appears for the Appellant.  At times, Mr Sampson has seemed to be imbued with “isn’t that outrageous, how could a Tribunal reach that decision” by, if one may say so, taking a thoroughly partisan view of the matter and suggesting that the Tribunal had no right to make any decision with which he disagreed. 

12.	The Tribunal concluded in paragraph 38 that some of the contentions made by the Applicant were not sustained.  They say:-
“We accept that the reasons put forward were genuine and honestly believed.  We do not accept the allegation of a conspiracy against Mrs Head or that the dismissal resulted from a long-term plan of victimisation of her.   We find this judgment to result naturally from the course of events and actions we have set out as the relevant facts of the case.   Looking at the tones of the letters that were written to her over the years, and looking in particular at the way in which her absence on the 16th December was treated, it is apparent there was, time and time again, a willingness to deal with her with understanding and an intention to provide constructive support combined with the disciplinary measures”.

13.	Although the Tribunal does make criticisms it is also right to note that it pays compliments to the way in which the management and school dealt with this matter and rebuts the suggestion that this was a campaign of victimisation or that there was a lack of integrity amongst those involved with the decision making process.

14.	Having made criticism in paragraph 39 of some of the ways in which the investigation took place at paragraph 40 it says this:-
“We find that the hearing itself was unfairly curtained and abbreviated.  More time should have been allowed.   The Respondents were considering an end to the employment of Mrs Head, with its inevitably long-reaching consequences of for her career, and indeed, they were effectively disposing of her career.   This was a situation which deserved a full hearing of the relevant facts, which the school had already determined should be related not simply to the most recent complaints, but also to her entire history at the school.   The Tribunal is unanimously of the opinion, and emphasises that this is very much the view of the lay members, that Mr Sampson’s argument was misconceived.  He appeared to have a notion that any disciplinary proceedings, whatever the scope of the related enquiry, should be brief and summary.  In our judgement, Mr Sampson and the Respondents have reversed the situation from that which ought to exist:  it is the extent of the issues to be investigated in order to arrive at a fair and reasonable conclusion which should determine the time spent upon the enquiry.  Mr Henry was perfectly entitled and acted reasonably in attempting to pursue as he did the lines of evidence enquiry and argument concerned in the course of the disciplinary hearing, and the decision to effectively cut him off was an act of irretrievable unfairness.  The Tribunal therefore concludes that proper and fair consideration was not given to the Applicant’s case”.

Paragraph 41:
“In making the determination set out in the preceding paragraph, we also rely upon the inconsistencies in the evidence, which we have previously set out, related to the decision making process.  Only those who sat on the panel know what truly happened, but we are not satisfied on that evidence that the panel did give adequate consideration to the evidence and arguments presented, not only in the course of the disciplinary hearing but also in writing, in advance, by Mrs Head”.

15.	Earlier in the decision at paragraph 24 the Tribunal had set out that Mrs Henry had submitted a “defence” amounting to something like 42 pages, which as it pointed out, gave ample rebuttal of the matters complained about and which the panel had to consider.  

16.	The Tribunal, having found the defects and the investigation in the disciplinary process was unfair, both as based on the reason related to conduct and as based on some substantial reason, then move to the question of remedy.  There are 3 issues that arise in this appeal.  The first is the question of mitigation and failure to mitigate.  What was raised by Mr Samson is that the Applicant had failed to mitigate the loss.  Mr Samson has made many of the points here which we strongly suspect he made below and has continued to see us as a Tribunal which has the power to re-hear a case rather than at a Tribunal that only has jurisdiction to intervene if there are errors of law.

17.	Mr Samson argued that Mrs Head failed to take reasonable steps to mitigate a loss.  Before us, he has repeated that arguments.  We have seen the factual findings in paragraph 43, 44 and 49, 50, 51 and we can see no error of law in the Tribunal’s findings on those matters subject to a qualifying caveat which we will, in due course, note.  The Tribunal said at this, at paragraph 50:-
“We take account of the fact that Mrs Head is 55 years old, and has been a teacher for many years.   She is a professional person.  She is entitled to aim for further employment as a teacher instead of simply taking any job which comes along.  She made some effort to retrain.  She suffered the handicap of the absence of a reference, pending the outcome of this case, and we do see how the Respondents could given her a favourable reference given what they have said about her in the course of this case.  We accept the evidence which she gave under cross-examination and which we have summarised earlier in these reasons.   In the circumstances, we find that she has not failed to take reasonable steps to mitigate her loss.  In making that decision, we bear in mind that the burden of proof lies on the Respondent as the party-making allegation”

Paragraph 51:-

“Mr Sampson relied upon the decision of the House of Lords in West Midland Co-operative Society Ltd v Tipton [1986] IRLR 112 for an argument that it was no just and equitable award compensation to the Applicant as an employee who had refused to exercise internal right of appeal.  We have considered the report of that decision and we are unable to find in it any basis for the argument put forward by Mr Samson.  Furthermore, in the case of Lock v Connell Estate Agents [1994] IRLR 444, the Employment Appeal Tribunal held that the failure by an employee to operate the internal appeal procedure after dismissal, cannot as a matter of law amount to a failure to mitigate loss under section 74(4) of the 1978 Act.  It follows that Mr Sampson’s argument on this point cannot succeed”.

18.	The caveat we have is this;  in fact, without going into precise details because we are not fact finding body, the Applicant Mrs Head, has for some time been teaching as a tutor.  If one looks at the Act itself, the words of section 123(1), the Employment Rights Act,:-

Subject to the divisions of this section 124, 126, 127, 127(A) 1, 3 and 4:-

“The amount of the compensatory award shall be such an amount as to the Tribunal considers just an equitable all the circumstances having regard to the loss sustained by the complainant.  In consequent of the dismissal, in so far as that loss is attributable to action taken by the Employer”.

19.	Whilst we consider the Tribunal were entitled to find that the Applicant had not failed to mitigate her loss at the remedy hearing it will have to decide for how long from date of the dismissal the whole of that loss should be borne by the employer, who unfairly dismissed her.   We believe, as we say, that the Tribunal was entitled to find that she had not failed to mitigate her loss, but there is no finding as to how long that state continues.  There was no finding as to any future loss, which is a matter the Remedy Tribunal will have to consider.  It is trite to say, that what is fair and just and equitable is a matter for the Tribunal to consider. Tribunals often have to grapple with the difficult area when someone remains unemployed or employed at a much lesser rate, the extent to which that is, just and equitable, having regard to the consequence of the dismissal in so far that that loss is attributable action taken by the employer.   The Tribunal will no doubt wish to consider in assessing that the personal circumstances of the Applicant, to determine to what extent what she has done is reasonable and what is just and equitable as well as merely the issue failure to mitigate.  We do not intend to say anything further than that, other than the trite observation that the approach that might be reasonable after six months may not necessary be a just and equitable and reasonable after 2 years. 

20.	We come now to a very different error of law namely the inter-relation of the Polkey argument with the question of contributory fault.   Mr Henry’s argument, that one should distinguish between unfairness being procedural and it being substantive, did not find favour with the Tribunal because they said in O’Dea v ISC Chemicals Ltd [1995] IRLR 599, they did not think it helpful to characterise unfairness in that way.  The simple question we must ask the Tribunal said is “if the employers had adopted a fair procedure, would dismissal have occurred assessing the probability of the outcome in percentage terms”.   Paragraph 53, the Tribunal say this:-

“As to the relationship between the Polkey argument and arguments based upon contributory fault, the decision of the Court of Appeal in Rao v Civil Aviation Authority [1994] IRLR 240, requires us to consider the Polkey argument first, and then the extent to which the Applicant caused or contributed to the dismissal, and the amount by which it would be just and equitable to reduce to the compensatory award on the grounds of contributory conduct, and we are entitled to take account of any reduction under the Polkey head”. 

Paragraph 54:-

“We have found unfairness in several respects which we have set out.  We have, however, accepted that there was no pre-judgement.  That said, there is a very substantial difference between the hearing which would have been fair and the hearing which actually took place”.

21.	We accept the Tribunal cited the position helpfully but were bound to say, we do think one has to look at the nature of their decision and it was not a purely procedural matter.   There were not purely saying, well they go the procedure wrong, but they were also saying in their reasons for finding unfair dismissal is that the panel did not give adequate consideration to the evidence and arguments presented not only in the course of this disciplinary hearing, but also in writing in advance by Mrs Head.  That is also a matter of substance.  

22.	The Tribunal then moved on to consider contributory  conduct.  It began by noting that the relationship between this argument and the Polkey argument and we reminded itself that the provisions concerning reduction of basic award and of compensatory award are separately different in word.  The Tribunal then reviewed the evidence that Mrs Head had been a somewhat colourful character, according to a Mrs Osbourne, a rather exotic personality, very much an unconventional sometimes imperious member of staff.  On a personal basis she sometimes presented rather theatrically.  On the other hand, against that, there were people called who very much supported the contribution Mrs Head had given.  Mrs Wilson, who was junior school music teacher for five years, testified and the Tribunal accepted her that Mrs Head was differently and less fairly treated by Mrs Green compared to other teachers.   The Tribunal noted this difference in treatment resulted in issues or complaints been taken up with Mrs Head which would not have been taken up with other teachers.   Mrs Wilson’s evidence was that Mrs Head had coped with unfair treatment because she was dedicated to teaching her class.  She was was a talented and caring teacher.   The Tribunal also accept that evidence given by Miss Duncan who is an information technology teacher at school, that she considered Mrs Head to be a caring conscientious dedicated teacher.   She considered the complaints against him were, in large measure, unjustified.   

23.	Furthermore, the was also evidence from the Applicant herself which the Tribunal accepted that children naturally loved her and expressed affection for her.  Given these facts based on the evidence the Tribunal summarised, said against the facts previously set out in the decision, the Tribunal were unable to make any finding adverse to the Applicant based upon her contribution of her dismissal.   

24.	The Tribunal state at  paragraph 53:-

“As to the relationship between the Polkey argument and arguments based upon contributory fault, the decision of the Court of Appeal in Rao v Civil Aviation Authority [1994] IRLR 240 requires us to consider the Polkey argument first, and then the extent to which the Applicant caused or contributed to the dismissal, and the amount by which it would be just and equitable to reduce the compensatory award on the grounds of contributory conduct, and we are entitled to take account of any reduction under the Polkey head”

25.	Taking a robust view, what this Tribunal said is we have got to look at them both, but they are inter-related.  They decided to make a deduction of Polkey of 20% and when they came to the question of contribution, they decided to make no further reduction.

26.	Mr Sampson has told us frequently that this Tribunal could not find that as a reasonable tribunal.   He has recited the long complaint history, he said, merely two junior teachers gave evidence on her behalf.   The deduction must be greater.  We simply do not accept that it is open for us to overrule the considered view of the Tribunal that sat for nine days, when in our view, although the decision could be improved, there are no misdirection of law.  

27.	The Tribunal found the procedure adopted was unfair, manifestly inadequate and that there was no proper consideration of the matters before them.   They were perfectly entitled, they having seen the witnesses, we have not, to take the view that this was unfair dismissal and the prospect of a fair minded proper procedure, would only have meant that they should make a deduction of 20%.

28.	We cannot emphasise too much that we are not able to overrule the findings of fact and would be quite improper for us to do so.  This Tribunal, in the round, gave a decision which sets out their findings of fact and gives adequate reasons for those findings and gives such directions of law as to enable us to identify where there is an error of law.  Having heard the arguments, we dismiss the appeal on all grounds, but we note that the remedy hearing has not yet dealt with practical consequences.

29.	There is one further matter we wish to mention.  In the experience of those sitting in this Tribunal, there is an increasing propensity to litigate every point.  This case has now taken 9 days to litigate.  There is an issue as to pension loss and I say for the benefit of the parties, there is a guideline to assessment of industrial of pension loss, industrial tribunal’s phamplet published by the stationery office. We do beg you to take a step back and to ask yourselves whether or not this matter has to continue to be litigated.  The end of employment is rather like the end of a marriage, very similar views and emotions often surface.  How people say goodbye to each in family circumstances can often dictate how they can view it later, and that is true of employment.  Industrial Tribunals cannot provide a balm to every hurt and scare of justification to all parties.  It is our considered view that really an attempt ought to be made to resolve this matter in view of the costs to the parties and the emotional feelings about the case.  This is only an expression of view.  

30.	We therefore dismiss the appeal.