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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hedden v Exeter Diocesan Board For Christian Care [2000] UKEAT 125_97_0903 (9 March 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/125_97_0903.html Cite as: [2000] UKEAT 125_97_903, [2000] UKEAT 125_97_0903 |
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| At the Tribunal | |
| On 29 November 1999 | |
Before
THE HONOURABLE MR JUSTICE CHARLES
MR L. D. COWAN
MR S. M. SPRINGER MBE
| APPELLANT | |
| RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
| For the Appellant | IN PERSON |
| For the Respondents | MR N MOORE (Solicitor) Messrs Stephens & Scown Solicitors 25-28 Southernhay East Exeter EX1 1RS |
MR JUSTICE CHARLES: The parties to this appeal are a Mrs Hedden and the Exeter Diocesan Board for Christian Care (the Board). Mrs Hedden appeals against a decision of an Employment Tribunal sitting at Exeter the Extended Reasons for which were sent to the parties on 4 December 1996. The Employment Tribunal dismissed Mrs Hedden's complaints of unfair dismissal and breach of contract.
Introduction
"There was an appeal to the Employment Appeal Tribunal which was called in for preliminary hearing before His Honour Judge Hull QC in June 1997. The function of that preliminary hearing was to consider which, if any, of Mrs Hedden's three submitted grounds should be permitted to go forward to the Tribunal for full hearing. Judge Hull delivered a reasoned judgment which extends to some 10 pages, and it carefully explains his opinion that Mrs Hedden had demonstrated one arguable ground that should be permitted to go forward to full hearing. In essence it was the argument that within the decision of the Industrial Tribunal there was an obvious internal inconsistency, namely that, if the Board had failed to show gross misconduct justifying summary dismissal, it could not then have succeeded on its subsidiary point that Mrs Hedden's conduct had effectively destroyed the relationship of employment. The other, alternative grounds, which Judge Hull rejected, can be crudely summarised as follows. The first was that the Industrial Tribunal, and particularly its chairman, had misconducted itself; secondly, that the Tribunal been (sic) guilty of bias in a number of respects. Thirdly, she sought to contend that the Chairman had erred in refusing her application to call before his Tribunal the Director of Social Services and a representative of the Social Services Inspectorate. Judge Hull explained himself essentially in this way:
'Having thought about it as carefully as we can, having heard Mrs Hedden, having read the papers and thought about it, we cannot find that any of those points are fairly arguable. The Chairman and the Members have set out for our benefit their answers to the criticisms made of them. We find that those points are not fairly arguable and the point which I have endeavoured to define is the only point which, in our view, is fairly arguable'.
Judge Hull went on to make a very important point. It was that the proceedings before the Employment Appeal Tribunal are of their nature extremely legalistic and plainly require a professional presentation if the appellate procedure is to operate at its most effective. He urged Mrs Hedden to obtain representation. He pointed out that, in view of the fact that her appeal had been admitted to the full court, subject to financial eligibility, she was entitled to legal aid. He went on to say that if she were by any chance not eligible then legal representation by a competent advocate should be available from the free representation unit.
The wisdom of Judge Hull's opinion has been underlined by the application to this court today. Mrs Hedden has had obvious and understandable difficulty in comprehending the function of this court or the issues that are relevant to today's application ….
It is unnecessary to record and analyse in detail her submissions which establish in her mind the allegation of bias. It is enough to say that she has even asserted that an absolutely anodyne paragraph in the reasoned decision of the Industrial Tribunal is to be construed as evidence of bias. The paragraph is the second paragraph of the extended reasons which only records the fact that at an early stage in the proceedings the Tribunal assented to an application by the Diocesan Board that certain evidence should be taken in private in order to protect the anonymity of the adopted family. Because within that paragraph Mrs Hedden has found the words 'their evidence related to the applicant's conduct with regard to a child', she interprets or reads into that neutral phrase a finding of misconduct on her behalf which, she says, was never any part of the respondent's case. It is quite simply impossible to begin to interpret this harmless passage in the way that she suggests. The reality is that the boundary between those grounds which merit a reference to full appeal and those grounds which do not was astutely drawn by Judge Hull and nothing that Mrs Hedden has said to this court today demonstrates any error in his determination or any prospect of her deploying either of the alternative grounds to a level that could be said to give either an arguable prospect of success. This is quite simply a hopeless application, even setting aside the reality that it is considerably out of time."
At the end of his judgment Thorpe LJ reiterated HH Judge Hull QC's exaltation to Mrs Hedden to seek legal advice for the future conduct of her live appeal and directed that a transcript of the judgment of the Court of Appeal be prepared at public expense and sent to both Mrs Hedden and to the Employment Appeal Tribunal. Sedley LJ agreed with the judgment of Thorpe LJ.
(a) Mrs Hedden's refusal, or inability, to accept that the essential point on this appeal had been identified in general terms by HH Judge Hull QC and the Court of Appeal,
(b) Mrs Hedden's sensitivity and strong reaction to anything which she interpreted as being a criticism of her conduct whilst employed by the Board, coupled with her readiness to criticise others involved during that time and since. In particular in this respect, in our judgment, her regular personal criticism of the Solicitor who represented the Board before us and the Employment Tribunal was unwarranted.
(c) Mrs Hedden persisted in pursuing a number of points of fact and law which were simply not supported by the documents she relied on.
(a) her assertion that the first page of the judgment of Thorpe LJ in the Court of Appeal contained 19 or 20 errors of law (and, as we understood her, of family law), and
(b) her assertion that the letters from the Social Services Inspectorate of the Department of Health dated 16 April 1996 and 16 October 1996 which were in the following terms:
"16 April 1996
Dear Mrs Hedden
Further to my secretary's letter to you of 11 April 1996, and our telephone conversation today, I can confirm that this Inspectorate's involvement was purely to ascertain whether Devon Social Services Department were considering your complaint in accordance with the Department of Health's Complaints Directions and Guidance.
As your own position has now been resolved with your employers you may feel you wish to go back to Yvonne Roxby (Devon SSD) to clarify any matters you feel appropriate about your initial complaint to Devon SSD."
"16 October 1996
I am now in a position to reply to your letter of 23 September addressed to Sir Herbert Laming.
I write to inform you that the Social Services Inspectorate is unable to provide the statement which you seek on aspects of your case against the Exeter Diocesan Board. It is the view of the Department of Health that your dismissal from employment and the events leading up to it are matters between yourself and your former employer alone. I believe that we clarified earlier that SSI's role in this case was to give information on the proper way to make a complaint related to a child's welfare initially to your former employer and then to the Devon County Council. You are, of course, free to produce to the Tribunal the published statement of the role and responsibilities of the Social Services Inspectorate which you mentioned in your letter to Sir Herbert.
If you intend to seek an order that a representative of the Social Services Inspectorate attend at the Tribunal hearing. I would expect you to draw this letter to the attention of the Tribunal.
I am sorry that I am unable to assist you further.
support:
(i) her contention that an inspection carried out by the SSI had shown a failure by the local authority to act in accordance with proper procedures, and
(ii) her assertion that both the Board and the local authority had not acted in accordance with proper procedures and relevant statutory duties.
The Background Facts
"3 This hearing extended over 4 days during the course of which we were presented with extensive oral and documentary evidence by both parties. On the balance of probabilities, and having regard to the demeanour of the witnesses, on the basis of that evidence we found the following to be the relevant facts for the purposes of our decision.
4 The applicant was employed as a Social Worker by the respondent's Adoption Agency. Her role was to assist and support parents seeking to adopt and for that purpose, and in the context of this case, to liaise with social workers from the Social Services Department of Devon County Council for the placement of children in its care. Since 1994, the applicant worked with Mr and Mrs A following the placement of two children B and C with them with a view to adoption. In May 1995 this placement was under some stress one of the difficulties being child B's adjustment to the placement and her wish to have contact with her birth mother. A dispute arose between the applicant and Miss Ronald, the social worker employed by the Social Services department, over this issue and the way in which any wish expressed by child B had been identified and formulated by the applicant. In consequence, Mr and Mrs A were losing confidence in the social workers assigned to the case and by letter dated 30 June 1995 Miss Ronald wrote to the agency's Adoption Director to suggest that it provide another support worker to work with Mr and Mrs A in place of the applicant and that she herself should withdraw from the case. In particular, she referred in that letter to the confrontational style of working with Mr and Mrs A which the applicant had developed. The Adoption Director visited Mr and Mrs A on 28 July 1995 together with the Adoption Agency Manager of Devon Social Services from which she gained the impression that they felt the dispute between the social workers was disruptive to the placement and they felt undermined by what they perceived to be the applicant's intimidating approach. The Adoption Director suggested, and they agreed, that her recently appointed deputy Mr Nicholas Goodwin should take over the support role from the applicant. Following a period of leave, the Adoption Director met with the applicant on 10 August and told her that Mr Goodwin was to take over her role in working with Mr and Mrs A.
5 The applicant was not happy with this decision. In the course of discussing the handover with her, Mr Goodwin gained the clear impression that the applicant did not accept her removal from working with Mr and Mrs A. On 23 August 1995 the applicant had written to the Adoption Director enclosing a letter which she herself had written to Mr and Mrs A indicating that she would be seeking from the Adoption Director the reasons for her replacement so that she could convey them to children B and C. In her reply dated 5 September the Adoption Director set out the reasons for the decision which had been taken. That letter was countersigned by the Adoption Agency Director of the Social Services Department. Subsequently, both Mr Goodwin and the applicant attended a statutory review meeting with Mr and Mrs A in September 1995 when one of the issues discussed was the applicant being able to say goodbye to children B and C.
6 On 9 October 1995 the applicant wrote to the Practice Supervisor at the Social Services Department commenting at length on the statutory reviews for children B and C stating that she required 'a formal statement of intent from your department specifying your policy of direct contact in the care plan' (for child B) and stating that in the absence of a written reply by 19 October she would be submitting a formal complaint to the Department's Customer Services Officer. Simultaneously she indicated that she would send a copy of the papers to the Department's Director 'because of the seriousness of your department's negligence under section 20 and section 22(4)(a) of the Children Act 1989'. At this point, the applicant was clearly expressing what she perceived to be her duty to ensure that the Department was meeting the obligations imposed upon it by those statutory provisions to give due consideration to the wishes of child B in the accommodation provided for it; and to ascertain the wishes and feelings of the child before making any decision with respect to it. That letter was written on the respondent agency's headed notepaper. On 10 October and in the course of a lengthy telephone conversation with Mr Goodwin, the applicant made further reference to the statutory provisions and indicated her intention to complain to Devon Social Services about the way in which the issue of child B's contact with its birth mother had been handled. As her deputy manager, it was open to him to instruct her not to do so but he took no such action.
7 On 16 October the Adoption Director of the respondent's agency had a long telephone conversation with the applicant about her letter to the Social Services Department and made clear her disapproval of the applicant's actions. By letter of the same date the applicant wrote to the Adoption Director stating that she had 'not yet formally accepted the terms set out in your letter dated September 5 1995' which had been written jointly by the Adoption Director and the Adoption Agency Manager of the Social Services Department; and asking that there be a more open view of her involvement in the placement solely in relation to the children's needs and the duty owed to them by the agency. Quite clearly the applicant was not accepting the Adoption Director's right to withdraw her from the case. This was further evidenced by a letter which the applicant wrote direct to Mr and Mrs A on 13 October without reference to Mr Goodwin or indeed anyone else at the agency from which Mr and Mrs A could only have concluded that the applicant was continuing to be involved in their case notwithstanding the agreement which they had reached with the Adoption Director on 28 July. On 23 October the applicant attended a meeting with Mr and Mrs A together with Mr Goodwin which had been arranged to enable the applicant to say goodbye to children B and C. The attitude adopted by the applicant at that meeting particularly with regard to the explanation which she wished to give to the children for her replacement resulted in what Mr Goodwin subsequently described as an appalling fiasco.
8 On 21 October the applicant wrote to the respondent agency's Administrator indicating that she 'had had to question the managerial decision taken by my manager Caroline Davis' and he treated this as a formal grievance under her contract of employment. Shortly afterwards the Adoption Director also wrote to the Administrator expressing her extreme concern about the applicant's conduct in relation to Mr and Mrs A and requesting that some formal action be taken. The Administrator decided that both the applicant and the Adoption Director should provide him with detailed reports which he could then consider with the chairmen of the respondent's agency. The Adoption Director subsequently provided such a report but the applicant failed to do so. On 3 November 1995 the applicant submitted a formal complaint to the Customer Services Officer of the Social Services Department on the respondent's agency headed notepaper complaining that the department was in breach of the relevant provisions of the Children Act 1989 in relation to child B. On 29 December 1995 the applicant wrote (again on the respondent's headed notepaper) to the Social Services Inspectorate complaining about the failure of the agency and the Devon Social Services Department to accommodate child B's wishes for contact with her birth mother in the course of which she indicated that
'it was necessary for me to confront the policy of the department and its attitude in relation to the child's statutory rights. Regretfully I have had to do this alone and without the support of my colleagues'.
9 On 8 December 1995 Mr and Mrs A submitted a formal complaint to the respondent agency in particular expressing their unhappiness with the way in which the change of support worker had been executed and the 'series of distasteful and distressing events which took place in our home' on 23 October when the applicant had attended the purported farewell meeting. The arrival of this complaint coincided with the submission of the Adoption Director's report to the Administrator concerning the applicant's conduct and the Administrator appointed an independent investigator to look into the events surrounding these complaints in detail. In his subsequent report the independent investigator concluded that in relation to the complaint by Mr and Mrs A, the applicant's professional practice and related behaviour could be construed as gross misconduct under the agency's disciplinary procedure. In relation to the applicant's actions in response to her removal from Mr and Mrs A's case (and in particular by addressing complaints to the Social Services Inspectorate and to Devon Social Services Department) he concluded that the applicant had put herself outside the control of the respondent's agency's management and that these actions could also be construed as a matter of gross misconduct. In the light of that report the respondent suspended the applicant on full pay and disciplinary proceedings were instituted.
10 The applicant was subsequently summoned to a disciplinary meeting held on 6 March 1996 prior to which she was provided with reports prepared by the Administrator, the Adoption Director and part of the independent investigator's report dealing with her actions in pursuing complaints against Devon Social Services. The respondent took the view that the disciplinary proceedings should be confined to the applicant's conduct in pursuing those complaints and refusing to adhere to her management's instructions. For that purpose, it concerned itself primarily with the applicant's conduct following the statutory review meeting on 19 September with Mr and Mrs A at which it had been intended that she should formally hand over the case to Mr Goodwin. The disciplinary hearing was adjourned and reconvened on 20 March 1996 and at both sessions the applicant attended accompanied by a solicitor. The Chairman of the Board, the Archdeacon of Exeter who presided over both sessions then submitted a report to the respondent's Standing Committee in which he concluded that the allegations that the applicant had put herself outside the control of management were proven and constituted gross misconduct under the respondent's disciplinary procedure. At a meeting of the Standing Committee held on 10 April the applicant was again accompanied by her solicitor and was invited to respond to the allegations. She was asked, as she had been by the Chairman of the Board at the disciplinary hearings, whether she would cease the stand which she was taking on the issue of B's contact with her birth mother. She indicated that she was willing to do so only on conditions which the respondent reasonably concluded would require it to accept that the applicant's primary duty as a social worker required her to have a continuing concern for child B and that in pursuing that concern she could act independently of her management. In the circumstances, the respondent concluded that the applicant would continue to operate independently of her management not only in relation to Mr and Mrs A's case but also in other cases assigned to her; and that in view of the findings of gross misconduct against her there was no alternative but to terminate her employment. She was so informed by letter dated 10 April 1996 and was provided with pay in lieu of notice notwithstanding the finding of gross misconduct which merited instant dismissal under the respondent's disciplinary procedures."
Comment on our approach
The Reasoning of the Employment Tribunal.
"11 Those are the relevant facts as we find them. What we have to determine in the light of those facts and having regard to the complaints of the applicant is whether her dismissal was fair or unfair; and whether the actions taken by the respondent breached the applicant's contract of employment. In relation to the applicant's dismissal the fairness or otherwise of that dismissal has to be determined in accordance with the provisions of section 98 of the Employment Rights Act 1996. That section requires the respondent to show the reason for the applicant's dismissal and that it was for a potentially fair reason. We then have to determine whether the respondent acted reasonably or unreasonably in treating the reason it has shown as a sufficient reason for dismissal. That involves two aspects, firstly the substantive fairness of the decision to dismiss which is normally tested by the concept of whether dismissal falls within the range of responses of a reasonable employer. Secondly, it involves procedural aspects, namely whether the decision to dismiss was implemented in a procedurally fair manner.
12 The respondent in its evidence has effectively advanced two reasons for the dismissal of the applicant and these are set out... . It first of all refers to the fact that the applicant made complaints to Devon Social Services and to the Social Services Inspectorate on the respondent's headed notepaper such that her action in doing so was detrimental to the work of the respondent or reflected adversely on the reputation of the respondent. In so doing the respondent places that course of conduct by the applicant in the category of gross misconduct as so defined in its disciplinary procedure. In considering that particular reason and the respondent's view that it comprised gross misconduct, we have taken into account the very important point made by the respondent's Chairman in the course of his evidence to this tribunal that following a favourable report on the activities of the agency by the Social Services Inspectorate the agency was in the process of negotiating a fresh contract with Devon Social Services and that the actions of the applicant in writing as she did to Devon Social Services and to the Inspectorate could have a damaging effect on the standing of the agency in the eyes of Devon Social Services. On balance, however, and it is a fine judgment, we take the view that the respondent could not properly regard that aspect of the applicant's conduct as gross such as to justify summary dismissal but rather we take the view that it falls to be treated and should have been treated as an act of serious misconduct for which the appropriate disciplinary action would have been warnings. In taking that view we are mindful that the respondent agency's management had very clear indications from the applicant that she proposed to raise those complaints with the external agencies in order to pursue her concerns and yet no firm action by way of an explicit instruction or warning was given by the management in order to prevent her. We have taken into account the suggestion in the course of the respondent's evidence that no amount of warnings would have deterred the applicant. Be that as it may, on balance, we take the view that those actions of the applicant did not amount to a sufficient reason for her dismissal and that dismissal for that reason would not fall within the range of reasonable responses.
13 There is, however, a second reason advanced by the respondent which is the belief it held that in the light of the applicant's conduct (which it viewed as unprofessional and intolerable) in relation to the placement of B and C with Mrs and Mrs A, it could not in future have any confidence that the applicant would not in any other case assigned to her act outside the control of the respondent and its managers. The evidence presented to us provides strong support for that belief and the fact that the respondent held it. Statements made by the applicant to her managers and others in correspondence put before us makes it entirely clear that she fully intended to pursue with the external agencies on behalf of Child B that child's rights as enshrined in the relevant sections of the Children Act 1989 as she construed them with the benefit of professional advice. She made her position in that respect equally clear in the course of disciplinary proceedings namely that she had a responsibility to pursue with the Social Services Directorate the issue of Child B's contact with her birth mother given that the line that she was advocating on that issue was contrary to that being jointly taken by the Devon Social Services Department and the agency. She made equally clear before the standing committee that she believed that she must act independently of the agency in pursuing that issue which she perceived to be a matter of duty and conscience. It was that attitude that led the respondent to the view that it could not in future have confidence that the applicant would not seek to act independently of the agency in any other case assigned to her and that it was reasonable to dismiss her for that reason. We agree. We accept that by conducting herself in that way the applicant had undermined the trust and confidence which an employer must necessarily have in its employees. While that must always be the case such trust and confidence as we perceive it must be of fundamental importance in the area of social work with which the applicant was involved. Very sensitive issues arise in that work in ensuring that children, in many cases traumatised and coming from insecure backgrounds, are properly accommodated; and equally sensitive issues arise in relation to prospective parents who are seeking to develop family life through the adoption route. In those circumstances, it is our judgment that the belief held by the respondent and the resulting loss of trust and confidence in the applicant was a sufficient reason for her dismissal and that dismissal was a reasonable response.
14. We have been exercised in our minds throughout this case with the issue of child B's rights under the Children Act but we are satisfied that those rights have not been prejudiced by the respondent's actions. Indeed, we note that the applicant's complaint in this regard was directed to the attention of the Social Services Inspectorate and it would appear from subsequent correspondence and acknowledgements from them that the issue did not unduly concern them; and they do not appear to have felt it necessary to pursue it in the light of the applicant's dismissal.
15 For all the foregoing reasons it is our unanimous decision that the applicant was fairly dismissed and her application for reinstatement is dismissed.
16 The applicant also complains of major breaches of contract and of its implied terms by the respondent and its officers. Many of these alleged breaches of contract seem to relate to the manner in which the applicant's grievance lodged initially with the respondent's Administrator was dealt with and how the disciplinary proceedings were conducted. We find those allegations totally unfounded and we are entirely satisfied that the disciplinary proceedings were fairly conducted by the respondent against the applicant. Indeed, by referring the matter to the respondent's Standing Committee, the Chairman introduced a further stage in the disciplinary procedure which effectively provided the applicant with an appeal.
17 The applicant also appears to allege that by seeking to prevent her from addressing complaints direct to the Social Services Inspectorate, the respondent was preventing her from pursuing her previous practice of consulting that body on various issues and was thereby changing the terms and conditions of her employment. We find that suggestion to be totally without foundation. Any employer is entitled at any time to give to an employee clear instructions on any particular matter and to suggest that to do so somehow constitutes a breach of contract represents a misunderstanding of a manager's right to manage an employee in the context of the employment relationship.
18 In our view, there is no substance whatever to the complaints by the applicant that the respondent breached her contract of employment and those complaints are dismissed."
Section 98 Employment Rights Act
"(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 -
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,(b) relates to the conduct of the employee,(c) is that the employee was redundant, or(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.
(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."
When this case was before the Employment Tribunal two established aspects of the approach to the application of s. 98 relating to substantive and procedural fairness are set out at the end of paragraph 11 of the Extended Reasons. As to substantive fairness and the "range of reasonable responses" this case was decided at the Employment Tribunal a long time before this Tribunal decided Haddon v Van Den Bergh Foods Ltd [1999] IRLR 672 (which is a case that had been recently decided when this appeal was heard on 29/30 November 1999). Notwithstanding the fact that the Haddon case had not been decided when this case was heard we gave the parties an opportunity to make submissions in writing to us on the Haddon case because of the reference in paragraph 11 of the Extended Reasons to the range of reasonable responses. However in our judgment the questions whether or not (i) the Haddon case was correctly decided, (ii) it is binding on us, and (iii) we could take it into account in deciding whether the Employment Tribunal erred in law when it did not exist at the time of that case do not arise in this case. The reason for that is that on the assumption that the answer to all those questions was "yes" the Haddon case makes no difference because, as is apparent from paragraph 13 of the Extended Reasons, the Employment Tribunal reached their conclusion on the basis that in their judgment it was reasonable for the Board to dismiss Mrs Haddon and thus without resort to the limits, or extent, of the range of reasonable responses, or to the statements in the cases that the Employment Tribunal must not substitute their decision for that of the employer.
The approach of the Employment Tribunal
(i) they make no findings in respect thereof, and
(ii) paragraph 14 of the Extended Reasons contains no reasoning.
Further in our judgment given the limited participation of the SSI shown by the correspondence referred to in paragraph 14 of the Extended Reasons it does not form a satisfactory basis for a conclusion that the rights of child B under the Children Act (which the Employment Tribunal do not define) have not been prejudiced by the Board's actions. Further, as we understood it, there was common ground between the parties that the Employment Tribunal did not consider the underlying Family law issues, arguments and position.
(a) that Mrs Hedden was advancing what she believed to be rights of Child B under the Children Act as she construed it with the benefit of advice (see paragraph 13 of the Extended Reasons),(b) that in Mrs Hedden's view she had a responsibility to pursue the issue of Child B's contact with her birth mother and that she was doing so as a matter of duty and conscience (see paragraph 13 of the Extended Reasons), and
(c) that the Board did not discipline, or criticise, Mrs Hedden for her behaviour and work during the time that she was working with the prospective adopters up until 10 August 1995 when the Adoption Director told her Mr Goodwin was to take over and the Board took the view that the disciplinary proceedings should be confined to Mrs Hedden's conduct in pursuing complaints against Devon Social Services and refusing to adhere to her management's instructions (see paragraph 10 of the Extended Reasons).
(1) Mrs Hedden was making and advancing points which she considered it was her duty to advance and which she was advancing as a matter of duty and conscience.
(2) No criticism was being made of her involvement with the proposed adopters and the children prior to 10 August 1995, and Mrs Hedden was not being blamed for the difficulties that the Board perceived to have arisen prior to August 1995 in respect of the placement.
(3) Mrs Hedden's involvement up to that date in the issue as to what contact the children (and in particular Child B) should have with their mother (and other members of their birth family) was part of Mrs Hedden's role in connection with the placement.
(4) Mrs Hedden's views on the approach to contact during her day to day involvement with the placement were reasonable (or were at least not unreasonable or the subject of criticism or any disciplinary action) and were based on her views as to what would best promote the welfare of the children.
(5) During Mrs Hedden's involvement up until early August 1995 part of the role of the Board was to express views on and assist in respect of the issues that arose as to contact between the children and their birth family (and in particular their mother).
(6) Generally having regard to the above and the "Family law issues" relating to contact between the children (and in particular Child B and her mother) Mrs Hedden was throughout advancing views that could reasonably (or not unreasonably) be said to be ones that best promoted the welfare of the children and thus ones that should be considered by the relevant decision makers (i.e. the local authority and the court) on issues relating to adoption and contact.
The Family Law Background
(a) the children were not the subject of care orders and had been placed with the local authority voluntarily,(b) the local authority therefore did not have parental responsibility for the children,
(c) as we understand it the children had different fathers (there is no finding of fact as to this but we understand that one of the fathers was married to the mother at the time the child was born with the result that he had parental responsibility and his consent to the adoption of that child was necessary unless dispensed with under s. 16 Adoption Act 1976),
(d) the mother had parental responsibility and her consent to the adoption of the children was necessary (unless dispensed with under s. 16 Adoption Act 1976),
(e) it was common ground that s. 22(1) Children Act 1989 applied and as the children were not in care the basis for this common ground was that they were being provided with accommodation by the local authority, and
(f) the children had been placed with Mr and Mrs A with a view to adoption.
"In making an adoption order the court is required by s 6 of the Adoption Act 1976 to have regard to all the circumstances but to give first consideration to the need to safeguard and promote the welfare of the child throughout childhood. This is a different test to that contained in s 1 of the 1989 Act, but it follows from s 6 of the 1976 Act that an adoption order will only be made if the court making it concludes that it promotes and safeguards the welfare of the child. An adoption order gives parental responsibility to the adopters and extinguishes the parental responsibility that any person has prior to the making of the order (see s 12 of the 1976 Act). It thus brings about a fundamental change in the identity of the persons responsible for the upbringing of the child and places discretionary responsibilities on the adoptive parents.
It follows that in considering the approach to be taken having regard to the fact that S is an adopted child, I have had particular regard to: (a) the passage in the speech of Lord Ackner in Re C (a minor) (adoption: conditions) [1988] 1 All ER 705 at 712-713, [1989] AC 1 AT 17-18, where he says:
'No doubt the court will not, except in the most exceptional case, impose terms or conditions as to access to members of the child's natural family to which the adopting parents do not agree. To do so would be to create a potentially frictional situation which would be hardly likely to safeguard or promote the welfare of the child. Where no agreement is forthcoming the court will, with very rare exceptions, have to choose between making an adoption order without terms and conditions as to access, or to refuse to make such an order and seek to safeguard access through some other machinery, such as wardship. To do otherwise would be merely inviting future and almost immediate litigation.'
(b) Re C (a minor) (adopted child: contact) [1993] 3 All ER 259, [1993] Fam 210, which concerned an application by a natural mother for leave to issue proceedings seeking a contact and specific issues order. In that case counsel by reference to a work of Mr Ryburn (who I think is the Dr Ryburn who has written reports in this case) urged the court not to be bound by what he called conventional wisdom but to look at the mother's application liberally. However, Thorpe J rejected that approach and accepted the argument (see [1993] 3 All ER 259 at 264, [1993] Fam 210 at 215) and concluded:
'It seems to me that the Official Solicitor is right to emphasise that adoption orders are intended to be permanent and final. A fundamental question such as contact, even if confined to the indirect, should not be subsequently reopened unless there is some fundamental change in circumstances.' (See [1993] 3 All ER 259 at 264, [1993] Fam 210 at 216.)
I comment that Thorpe J was there contemplating the reopening of issues as to contact through the means of granting leave to bring an application under s 8 of the Act, and not by any revisiting of the original adoption order.
(c) Re T and ors (minors) (adopted children: contact) [1996] 1 All ER 215, [1996] Fam 34, which was a case in which an adult sibling D sought leave to bring an application for contact with her adopted half-brothers and sister. At the time the adoption order was made D withdrew an application for contact and there was an informal agreement that the adopters would provide annual reports on the adopted children. D made her application when the adopting parents failed to supply such a report. The Court of Appeal referred to Re C (a minor) (adopted child: contact) [1993] 3 All ER 259, [1993] Fam 210, but stated that the decision in Re T (a minor) (contact after adoption) [1995] 2 FCR 537 was more in point, and found that the failure of the adopters to provide the promised report was a change in circumstances and that the adopters could not resile from their informal agreement without giving reasons. The Court of Appeal gave the adopters a chance to give reasons and remitted the case to the county court to consider it in the light of any reasons the adopters gave for not providing the report. That was therefore a case where the informal agreement of the adopters to provide reports had induced D to withdraw her application for contact at the time of the adoption and had promoted the adoption on the basis, or understanding, that the adopters would provide the reports.
(d) Re T (a minor) (contact after adoption) [1995] 2 FCR 537 concerned an adoption where the court at first instance made an order for contact. The Court of Appeal decided that no such order should have been made and that contact should have been left to the good sense of the adopters, and that if they decided to end or change the contact they should give reasons for this change of mind and in the light thereof the mother could seek leave to bring an application for contact under s 8 of the Act (see, in particular, at 542). This approach is based on the passage from the speech of Lord Ackner in Re C, referred to above, the finality of adoption, the importance of letting the new family find its own feet and of putting the adopting parents, who have taken on the considerable burdens, responsibilities and pleasures of parenthood, in the position of being able to make their own decisions as to what is in the best interests of their child in light of the circumstances that exist from time to time.
In my judgment, I should not seek to define what might constitute changes in circumstances which would warrant the grant of leave to bring an application for a contact order in respect of an adopted child and thereby remove, or go behind, the finality of an adoption order. But, in my judgment, in considering whether there has been a fundamental or sufficient change in circumstances to warrant leave being granted it is necessary to consider on the facts of each case: (i) the effect, or potential effect, of the difference in circumstances between those that existed at the time the adoption order was made and at the time of the application for leave, and (ii) how that effect impacts on the finality of the adoption order, the discretion and responsibility conferred on the adopters thereby and the regime, or new family, created by the adoption order to safeguard and promote the welfare of the adopted child during his or her childhood.
In my judgment useful guidance is given as to the approach to be adopted by the judgment of Sir Ralph Gibson in Re T (a minor) (contact after adoption) [1995] 2 FCR 537 at 545, where after agreeing with the reasoning of the Butler-Sloss and Millett LJJ, he says:
' … but the proper response to any change in circumstances should be left to the decision of the adoptive parents and the discharge of their responsibility to the child. If their decision should be demonstrably against the best interests of the child, then the natural parent can apply to the court for leave to seek an order for contact. Such procedural requirements as exist are imposed for the proper protection of the child and the adoptive parents against unnecessary disturbance.'
The first part of that passage reflects the reasoning why an adoption order should be final, and the fact that to safeguard and promote the welfare of the adopted child through his or her childhood it confers such discretion on the adoptive parents and the second part thereof identifies the approach to be taken by reference to the decision made by the adopters, the effect of an adoption order and the discretion vested in them thereby.
This approach accords with that taken in Re T and ors (minor) adopted children: contact) [1996] 1 All ER 215, [1996] Fam 34 because there the Court of Appeal remitted the case to give the adopters an opportunity to give their reasons as to why they had failed to comply with the understanding reached at the time of the adoption and, if they gave such reasons, to enable the county court to reconsider the application for leave in the light of them."
(a) which type of adoption would best safeguard and promote the welfare of the child, and
(b) the nature and extent of contact in the first type of "open adoption".
(i) private law applications for contact orders (for example the statements in the cases relating thereto as to the child's right to contact and the advantages of a child getting to know his or her parent and therefore not growing up with an incorrect picture of that parent), and
(ii) applications for contact under s. 34 Children Act 1989 in respect of children in care,
are only relevant by analogy.
The position in this case having regard to that Family Law background
(a) what contact the mother could sustain,(b) what contact the proposed adoptive parents could sustain,
(c) the extent of contact with other members of the birth family,
(d) the wishes and position of the mother (and the father whose consent to adoption was necessary) on contact and how it affected their willingness to consent to an adoption order being made, and
(e) the wishes of the children in respect of contact with their birth family,
(f) the understanding that the children had of the issues,
(g) the general stance of the mother (and the father whose consent to adoption was necessary) on adoption order(s) being made,(h) the stance of other members of the birth family on contact and adoption,
(i) how contact leading up to adoption would affect the medium to long term advantages of adoption or put at risk the making of an adoption order in respect of both children,
(j) the effect contact, or the lack of contact, after an adoption order would have on the stability of the family comprising both the children and the adoptive parents and thus on the benefits that would flow from such stability, and
(k) the effect contact between the mother and Child B would have on Child C, and
(l) the other options open in respect of the upbringing of the children and the promotion of their medium to long term welfare.
These issues include and relate to the issue that was given prominence in this case, namely contact between the mother and Child B, and the wishes and understanding of Child B as to such contact. The papers do not reveal the extent of any discussions with the mother as to this issue and for example what she was told of Child B's position and what her general attitude to contact was.
"the Respondent (the Board) accommodates its children in premises known as placements, houses belonging to prospective adoptive couples, providing such accommodation for Local Authorities all over the country. ------- "
This written assertion (like her oral assertions) by its reference to the provision of such accommodation for local authorities indicates that (or it is at least consistent with the Board's contention that) it was the local authority who provided accommodation for the children. Further Mrs Hedden did not support her assertion that the children were accommodated by, or on behalf of, the Board by reference to any third party evidence or point to any evidence that was before the Employment Tribunal that would support that assertion. We are not a fact finding Tribunal and we do not accept this assertion. We have proceeded on the basis that the children were provided with accommodation by the local authority and were not accommodated by, or on behalf of, the Board for the following reasons:
(a) this accords with paragraphs 2 and 4 of the Extended Reasons (although they do not include express findings to this effect),
(b) this accords with what we would expect and, for example, the Board's mission statement,
(c) this accords with the papers we have seen and in particular the assertions made by, and on behalf of, Mrs Hedden and her stance in 1995 and 1996 to the effect that sections 20, 22 and 26 Children Act applied (see for example her letter of 2 October 1995 to the local authority, her complaint of 2 November 1995 (enclosed with her letter of 3 November 1995) and Mr James' paper of 1 April 1996 which was put before the disciplinary hearing held on 10 April 1996),
(d) the basis of the common ground that the children were being looked after by the local authority was that they were being provided with accommodation by the local authority because (notwithstanding the reference in paragraph 4 of the Extended Reasons to the children being in the care of the local authority) this was not the case (see the definition of a child who is looked after by a local authority in s. 22),
(e) the common ground that the children were being looked after by the local authority therefore has the consequence that Mrs Hedden is accepting and asserting that the children were provided with accommodation by the local authority but is asserting that at the same time they were being accommodated by, or on behalf of, the Board, and
(f) the lack of any independent evidence to support Mrs Hedden's assertion to us that the children were being accommodated by, or on behalf of, the Board.
We comment further that although this approach accords with the Board's case as to who was providing the children with accommodation it does not prejudice Mrs Hedden in respect of her appeal against the dismissal of her claim for unfair dismissal. This is because we have decided on this approach that the issue whether the dismissal on the basis of the second reason (i.e. the Boards' belief that in the future Mrs Hedden would act outside the control of the Board) was fair or unfair should be remitted to, and reconsidered by, the Employment Tribunal in the light of the respective positions of the parties and the local authority having regard to the Family law background, and it therefore follows that:
(i) Mrs Hedden does not need to establish, or rely on, her assertion that the children were accommodated by, or on behalf of, the Board on her appeal against the finding that her dismissal was not unfair, and
(ii) on such remission Mrs Hedden could seek to establish that fact and rely on it as part of her arguments relating to the position of the parties and the local authority in Family law.
(i) the Board had been of Mrs Hedden's view on the issue of contact, or
(ii) the Board had been of a different view to the local authority on the issue of contact, or
(iii) the Board had been of the view that the court was not being fully and properly informed of the problems and difficulties relating to contact and the reasons for the conclusion reached thereon by those applying for, or supporting, an adoption order
the Board would, and should, have taken steps to ensure that its views were known by the court.
(i) its primary role of assisting and supporting the proposed adoptive parents which, in our view, would include supporting and assisting them in respect of the stance they should take relating to contact, and
(ii) its participation in respect of the issues that arose concerning contact,
if the Board had disagreed with the local authority on the approach to be taken to contact, or on the actual contact that should take place between the children and their mother, or on the overall question whether adoption with the proposed level of contact best promoted and safeguarded the welfare of the children, it could (and albeit that it may not have been subject to an enforceable duty to do so, probably should) have taken steps to ensure that its views were taken into account in the decision making process of the relevant decision makers namely:
(a) the local authority, and(b) the court.
(i) the Family law background,(ii) the difficult questions that arose in respect of the Contact Issues,
(iii) the underlying need of all involved with the placement to consider and seek to safeguard and promote the welfare of children placed for adoption,
(iv) Mrs Hedden's involvement during the period that she was allocated to the placement with the Contact Issues, and
(v) the stance of the Board that in removing Mrs Hedden from day to day involvement with the placement it was not criticising her
Mrs Hedden was reasonably entitled to seek to take, and could not properly or reasonably be prevented by the Board from taking, all steps reasonably open to her to seek to ensure that her views on the Contact Issues, and more importantly the facts and reasoning that had caused her to reach those views, were properly put before and taken into account by the relevant decision makers.
(i) Mrs Hedden was reasonably entitled to pursue the steps open to her to seek to ensure that those matters were properly put before and taken into account by the relevant decision makers, and(ii) Mrs Hedden could not properly or reasonably be prevented by the Board from doing so.
(a) the strong public and private interests that decisions as to the future of children are made on a properly informed basis, and(b) the underlying need (in the public interest and the private interests of those involved) for all involved in the placement of children with a view to adoption whether as employers (and thus as corporate bodies, unincorporated associations or trusts) or employees to have regard to, and to seek to safeguard and promote, the welfare of the children placed for adoption.
(a) that they represent their views and reasoning personally to the relevant decision makers, so long as they were properly put to them, or(b) that they remain allocated to the placement by their employer (here the Board).
(a) discussion with and information being given to her by the Board and its officers and employees who were still involved in the placement,(b) participation in reviews pursuant to s. 26 Children Act 1989 (e.g. the review that took place on 14 September 1995 which Mrs Hedden was invited to attend),
(c) seeking to make a complaint under the Representations Procedure (Children) Regulations 1991 in reliance on s 26(3)(e) Children Act 1989 and regulation 2 (the definition of complainant) of those Regulations, and
(d) in our judgment as a very last resort seeking to have herself added as a respondent to the adoption proceedings.
(a) properly inform Mrs Hedden of the steps and decisions taken by the local authority (with the agreement of the Board) as to the Contact Issues together importantly with the factors taken into account in respect of, and the reasons for, such steps and decisions, and(b) provide assurances to Mrs Hedden that the guardian ad litem (if one was appointed) the reporting officer and the court would be made aware of the history of the placement, the facts and reasons for her view on the Contact Issues and the facts and reasons for the view of the local authority (and the Board) on the Contact Issues.
The information referred to in (a) could be quite wide range and for example could include the fact that there had been discussions with the mother (who retained parental responsibility) and further investigation into the child's wishes and feelings. Issues of confidentiality might arise in respect of some of the information that was relevant to the decision making process of the local authority but in our judgment it is likely that these could have been overcome.
Miscellaneous Family Law Points
The Decision of the Employment Tribunal and our jurisdiction
She was asked, as she had been by the Chairman of the Board at the disciplinary hearings, whether she would cease the stand which she was taking on the issue of B's contact with her birth mother. She indicated that she was willing to do so only on conditions which the respondent reasonably concluded would require it to accept that the applicant's primary duty as a social worker required her to have a continuing concern for child B and that in pursuing that concern she could act independently of her management.
is important to the reasoning and conclusion reached in paragraph 13.
(a) in reaching them the Employment Tribunal erred in law by applying the wrong approach by, for example, failing to take or to take properly into account a relevant factor, and further or alternatively(b) the Employment Tribunal have failed to provide adequate reasons for their conclusion.
This court therefore has to do what the appeal tribunal should have done: apply Edwards v Bairstow ---------- and to decide whether the industrial tribunal misdirected itself in law or reached a decision which was unreasonable to the point of perversity. We must not ourselves decide what is the right inference to draw from the facts as found so as to determine the true nature of the arrangement because we may be in that "grey area" ------------------ where it may be a contract or service or a contract for services and either the majority opinion of the minority opinion of it may come "within the band of possible reasonable decisions" which precludes a court from judging whether they are right or mistaken ------------
This is a recognition of an approach to an appeal from a decision as to which there is room for two reasonable decision makers to reach different results both of which are reasonable (see for example the point made in the Haddon case at [1999] IRLR page 676 paragraph 24).
(i) Hollister v National Farmers' Union [1979] ICR 542 in particular at 552H to 553D, which is in the following terms:
"There is only one other matter to which I would refer. In these cases Parliament has expressly left the determination of all questions of fact to the industrial tribunals themselves. An appeal to the appeal tribunal lies only on a point of law: and from that tribunal to this court only on a point of law. It is not right that points of fact should be dressed up as points of law so as to encourage appeals. It is not right to go through the reasoning of these tribunals with a toothcomb to see if some error can be found here or there – to see if one can find some little cryptic sentence. I would only repeat what Lord Russell of Killowen said in Retarded Children's Aid Society Ltd v Day [1978] ICR 437, 444:
'I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point or breach has overlooked it, and care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and the oral evidence have taken a different view from that of the industrial tribunal, searching around with a fine toothcomb for some point of law.'
It does seem to me that in this particular case, if one does not use a toothcomb, if one looks at the findings of this tribunal broadly in accordance with what they have said, it is found that there was a substantial reason for this dismissal. Not only was there a substantial reason, but in the circumstances of the case the employers acted reasonably in treating it as a substantial reason having regard to equity and the substantial merits of the case. Therefore the dismissal was fair.
I would reverse the appeal tribunal and restore the decision of the industrial tribunal."
This citation therefore adopts the citation from the Day case of the Judgment of Lord Russell, and
(ii) Jones v Mid Glamorgan County Council [1997] ICR 815 in particular at 826D where Lord Justice Waite says this:
"The guiding principle, when it comes to construing the reasons of an industrial tribunal at an appellate level, must be that, if the tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence, the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate the conclusion unless the relevant words admit of no explanation save error of law."
(iii) Hampson v Department of Education and Science [1989] ICR 179 in particular the first paragraph in the headnote at page 180 which is in the following terms:
"When considering whether the imposition of a condition was ';justifiable' within the meaning of section 1(1)(b)(ii) of the Race Relations Act 1976 industrial tribunals, applying an objective test, had to balance the discriminatory effect of the condition against the reasonable needs of the person who applied the condition; that only if the discriminatory effect could be objectively justified by those needs would the condition be 'justifiable'; that in reaching their decision on that issue, the tribunal had to give full reasons sufficient to explain to the parties why they had either lost or won; that as the tribunal had failed to identify the standards by which they are testing the Secretary of State's justification of the condition or to make any findings comparing the applicant's courses with the domestic one, their reasons were deficient; and that, accordingly, their decision on the conditions applied by the Secretary of State could not be upheld."
and at pages 192 G to 193 D:
"The finding of justifiability
Procedure in the industrial tribunal is governed by the Industrial Tribunals (Rules of Procedure) Regulations 1985 (S.I.1985 No.16) which came into force on March 1985. The rules of procedure are set out in Schedule 1 to the Regulations and rule 9 is concerned with the decision of the tribunal. Rule 9(3) provides that the tribunal shall give reasons, which may be in full or in summary form, for its decision. Rule 9(5)(a) provides that where the proceedings before the tribunal involved the determination of an issue arising under, inter alia, the Race Relations Act 1976, the reasons shall be recorded in full in a document signed by the chairman. Rule 17(9) requires that, in proceedings under the Race Relations Act, a copy of the decision shall be sent to the Commission for Racial Equality. This is because the decision in such proceedings may well have an effect not limited to the parties alone. Thus there are sound policy reasons for the requirement that in such cases the decision shall record the reasons in full.
In its differentiation between full and summary reasons the 1985 Rules of Procedure amended the previous Industrial Tribunals (Rules of Procedure) Regulations 1980 (S.I.1980 No.884) which only required that the decision of a tribunal should be recorded in a document which should contain the reasons for the decision. There is no reported decision on the meaning of 'full reasons' under rule 9 of the Rules of 1985, but I derive considerable assistance from the decision of this court in Meek v City of Birmingham District Council [1987] IRLR 250, and in particular from the following passage, at p.251, from the leading judgment of Bingham LJ with which Sir John Donaldson MR and Ralph Gibson LJ agreed, in relation to the rule in its original form:
'It has on a number of occasions been made plain that the decision of an industrial tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the Employment Appeal Tribunal or, on further appeal, this court to see whether any question of law arises; …'."
(iv) High Table v Horst [1998] ICR 409 in particular at page 420 E to F, where after citing from the Meek case, Peter Gibson LJ says this:
"However, in considering whether the reasons given by an industrial tribunal comply with its statutory obligation, it is very important to keep in mind the issues which the industrial tribunal was dealing with. It has, of course, to reach conclusions on the issues which the statute raises, viz. in the present case, have the employers established that the reason for the dismissals was redundancy and, if so, did they act reasonably in treating the redundancy as a sufficient reason for dismissing the employees? But, whilst it must consider all that is relevant, it need only deal with the points which were seen to be in controversy relating to those issues, and then only with the principal important controversial points … ."
In the Hampson case Balcombe LJ cites the well known case of Meek v City of Birmingham District Council [1987] IRLR 250 and (should authority be needed for it) the Hampson case establishes that the cases referred to in subparagraphs (i) and (ii) above should be read and applied in the light of the Meek decision and the Horst decision.
Errors of Law
(i) the reasonableness of the conduct of the Board and Mrs Hedden in the circumstances including the stance taken by the Board to the disciplinary process and the dismissal (see paragraphs 22 and 23 hereof),
(ii) the reasonableness of the Board's decision to dismiss Mrs Hedden, and
(iii) the equity and the substantial merits of the case.
Point (i) leads up to, and provides background to points (ii) and (iii) which reflect s. 98(4)(a) and (b). These points, and thus the need to take into account the Family law background when considering them, relate to the overall conclusion of the Employment Tribunal and the finding in paragraph 10 of the Extended Reasons set out above.
Further comments on the errors of law
(a) her communications with, her conduct towards and in the presence of the proposed adoptive parents and the children and her intentions as to continuing contact with the proposed adoptive family, and(b) her communications with the Board, her complaints to and her intentions as to further contact with third parties such as the local authority, the SSI and the court,
after she had been removed from day to day involvement with the placement. These two elements give rise to different issues but should be looked at cumulatively and having regard to each other.
(a) the Family law background needs to be taken into account, and
(b) the extent and relevance of the two elements of Mrs Hedden's conduct referred to in paragraph 69 above to the reasons advanced by the Board for dismissing Mrs Hedden also need to be taken into account.
Statements made by the applicant to her managers and others in correspondence put before us makes it entirely clear that she fully intended to pursue with the external agencies on behalf of Child B that child's rights as enshrined in the relevant sections of the Children Act 1989 as she construed them with the benefit of professional advice. She made her position in that respect equally clear in the course of disciplinary proceedings namely that she had a responsibility to pursue with the Social Services Directorate the issue of Child B's contact with her birth mother given that the line that she was advocating on that issue was contrary to that being jointly taken by the Devon Social Services Department and the agency. She made equally clear before the standing committee that she believed that she must act independently of the agency in pursuing that issue which she perceived to be a matter of duty and conscience. It was that attitude that led the respondent to the view that it could not in future have confidence that the applicant would not seek to act independently of the agency in any other case assigned to her and that it was reasonable to dismiss her for that reason. We agree.
that complaints to external agencies (and thus the second element of her conduct) was a factor therein. This passage focuses on complaints to external agencies rather than any approach to, or personal contact with, the proposed adopters.
(a) the fact that Mrs Hedden's complaint to the local authority was not being dealt, and
(b) the lack of any findings and any clear indication in the papers before the Employment Tribunal that Mrs Hedden was being provided with any, or any detailed information, as to the steps taken and intended to be taken in respect of the Contact Issues and the reasons for those steps,
are relevant.
(1) It is not explained why a continuation of the existing complaint or the institution of a new complaint to the same external agencies destroys trust and confidence, and
(2) it is not explained why the problems that had arisen relating to this placement and the Contact Issues had the effect that in other cases the Board could reasonably have concluded that it did not have any confidence that she would not act outside the control of the Board.
As to these points we accept that the answer might be that by the time of, and during, the disciplinary hearings there was a clear indication or instruction from the Board that Mrs Hedden should not act independently and she was asserting a right to do so, but this is not stated and in any event if that was the reasoning the Family law background would have to be taken into account.
Brief Overview
(a) the stance taken, and the conclusions reached by the Board, relating to the Contact Issues and Mrs Hedden's stand or position in respect of them was reasonable or unreasonable,(b) action taken by Mrs Hedden in respect of the Contact Issues, and the stance adopted by Mrs Hedden to questions put by the Board relating to the Contact Issues, were reasonable or unreasonable, and
(c) the decision of the Board to dismiss was fair or unfair having regard to conclusions (a) and (b) and the other relevant circumstances.
are flawed in law.
Conclusion on the appeal against the finding that Mrs Hedden was not unfairly dismissed
(a) we refer the Employment Tribunal to the decision of the Court of Appeal in Aparau v Iceland Frozen Foods in an appeal heard on 29 October 1999. The leading judgment in that case was given by Moore-Bick J and in it he says (amongst other things):
"The effect of an order remitting a case to a tribunal which had otherwise exhausted its jurisdiction was considered by this court in the context of arbitral proceedings in Interbulk Ltd v Aiden Shipping Co Ltd (The 'Vimeira' (No.1)) [1985] 2 Lloyd's Rep. 410. Ackner L.J. pointed out that the extent to which the tribunal's jurisdiction is revived in consequence of an order remitting the matter to it depends entirely on the scope of the remission. If, as occurred in the present case, the matter is remitted for the tribunal to consider certain specific issues, it will have no jurisdiction to hear or determine matters outside the scope of those issues and it must follow that it has no power to allow one party to amend its case to raise issues which were not previously before it. In the present case it is clear from the passages in the judgment of the Employment Appeal Tribunal to which I have already referred that remission was ordered in very limited terms simply to enable the industrial tribunal to reconsider whether Iceland's new terms of employment had been accepted by Mrs Aparau. That being so, the tribunal did not by virtue of the remission have jurisdiction to reopen the case generally, nor did it have jurisdiction to hear or determine any argument on the part of Iceland relating to the fairness of any dismissal. Although Mr Glennie sought to persuade us to the contrary, I for my part am quite satisfied that that was not an issue which had previously been raised in the proceedings and it was certainly not within the scope of the remission."
and
(b) Section 35 of the Employment Tribunals Act 1996 which provides as follows:
"35 Powers of Appeal Tribunal
(1) For the purpose of disposing of an appeal, the Appeal Tribunal may –
(a) exercise any of the powers of the body or officer from whom the appeal was brought, or(b) remit the case to that body or officer
(2) Any decision or award of the Appeal Tribunal on an appeal has the same effect, and may be enforced in the same manner, as a decision or award of the body or officer from whom the appeal was brought."
In our judgment on the proper construction of section 35 the Employment Appeal Tribunal may remit part of a case, and thus specific issues within a case, to an Employment Tribunal, and this is confirmed by the decision in the Aparau case.
The Breach of Contract Claim
"Of course you can refer to any other matters which you want to but you would be well advised to have a lawyer"
means that she was given permission to pursue her appeal against the dismissal of her breach of contract claim. Indeed such a construction of this sentence flies in the face of the point made on the previous page that:
"The only point on which we give leave to appeal is the one I have indicated."
(a) the manner in which the grievance, investigation and disciplinary process was carried out generally, and therefore
(b) Mrs Hedden's points as to the identity and expertise of the Board's legal advisers and the fact that a legal adviser was not made available to her by the Board (as to which we note (i) that it does not appear that Mrs Hedden asked for advice from such a legal adviser, (ii) that she attended the disciplinary meetings with a friend Mr Griffin, who is a solicitor and (iii) that she sought, and put to the Board, the views of Mr James on Family law points, which are contained in his paper dated 1 April 1996)
we reject Mrs Hedden's arguments that the Board acted in breach of contract, or sought to unilaterally vary her contract.
(a) if she had wanted to establish this as a fact underlying her breach of contract claim (or her claim for unfair dismissal) she should have done so at the hearing before the Employment Tribunal,
(b) the lack of any such finding does not amount to an error in law by the Employment Tribunal, and
(c) the possibility (referred to in paragraph 41) that she can advance this point on the remission of the claim for unfair dismissal does not mean that we should also remit the breach of contract claim for further consideration in the light of this assertion (or otherwise).
The breach of contract clam was a separate (albeit connected) claim and in our judgment to succeed on it Mrs Hedden has to establish that the Employment Tribunal made an error of law in respect of it.
(a) the Board's procedure to deal with complaints which was used in this case is very similar to that contained in those Regulations, and
(b) Mrs Hedden's general stance was that the local authority and the Board had acted and were acting in breach of duty particularly in respect of the Contact Issues and the inclusion of sections 61 and 62 (and thus the duties contained in them) as an additional basis for such assertions would not have altered their general effect.
(a) as we have explained the Family law background, and the position in this case having regard to it, does not support an argument that the Board acted in breach of Mrs Hedden's contract by removing her from day to day participation in the placement and giving that responsibility to Mr Goodwin, and in any event the breach of contract claim is not based on that action but on the events that followed it,
(b) different issues arise in respect of the two claims and in our judgment the failure of the Employment Tribunal to have proper regard to the Family law background is relevant to the issues raised by s. 98 Employment Rights Act 1996 (and in particular s. 98(4) thereof), and thus to reasonableness, equity and the substantial merits which are not issues that arise, or arise in the same context, on the breach of contract claim,
(c) leaving aside Mrs Hedden's argument as to the application of the Representation Procedure (Children) Regulations 1991 (SI 1991/894) which we have already dealt with, the Family law background as such does not affect Mrs Hedden's contractual entitlement to have the investigation conducted in a particular manner, or pursuant to a particular procedure. The issues relating to reasonableness and fairness in the conduct of the investigation are relevant to the claim for unfair dismissal rather than the claim for breach of contract,
(d) the Family law background is relevant to the Board's views on, and opposition to, Mrs Hedden's complaints to the local authority and SSI but in respect of the breach of contract claim the relevant point is whether the Board gave Mrs Hedden an instruction not to make complaints and it was found that it did not,
(e) the general Family law background is not relevant to Mrs Hedden's claim based on an alleged lack of supervision save in the sense that she may have sought advice or received supervision having regard thereto, and thus as to the underlying difference of opinion relating to the Contact Issues, and
(f) more generally the underlying difference of opinion and approach of Mrs Hedden and the Board to the Contact Issues, and therefore their respective stances on Mrs Hedden's complaints to outside agencies are relevant to and focused on the dismissal, the reason for it and whether it was fair rather than the claim for breach of contract existing at and before the point of dismissal.