Appeal No.	 EAT/197/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 April 2000

Before
HIS HONOUR JUDGE COLLINS CBE
MR D A C LAMBERT
MRS D M PALMER

MR E LEVI	APPELLANT

CALLAN SCHOOL OF ENGLISH	RESPONDENT

Transcript of Proceedings

FULL HEARING

Revised

	APPEARANCES

For the Appellant	MISS J HEAL
(of Counsel)
Messrs Freemans 
Solicitors
40 James Street
London
W1M 5HS	
For the Respondent	MISS S MOOR
(of Counsel)
Messrs Mills & Reeve
Solicitors
Francis House
112 Hills Road
Cambridge CB2 1PH	

JUDGE COLLINS:

1.	This is an appeal against the decision of an employment tribunal sitting at London North whose extended reasons were promulgated on 10 November 1998.  During the course of the hearing it was conceded that the appellant had been unfairly dismissed. The questions before the tribunal were first, whether or not a reduction should be made on the Polkey basis to take account of the prospect that the appellant might have been dismissed in any event and secondly, to what extent if any  his own conduct contributed to his dismissal and the extent to which it would be just and equitable to reduce any award on that account.  

2.	The tribunal decided that it was inevitable that the appellant would have been dismissed if there had not been procedural unfairness and that in any event he was wholly responsible for his own dismissal and it would be just and equitable to award him no basic or compensatory award.  

3.	The essential facts are that the appellant was a teacher of English as a foreign language at the respondents' school from 19 December 1992 until his dismissal, which took effect on 17 December 1997. In about September 1996 a question had arisen as to whether he had had an improper association with a female student from Japan at his home.  The Principal considered the matter and the appellant gave an explanation.  The matter was not dealt with under any formal disciplinary procedure. It concerned an incident alleged to have occurred in May 1996 although not reported until the following September.  At the tribunal there was a dispute as to how the informal investigation had ended. It was accepted by the tribunal that Mr Littlewood had warned the appellant.The tribunal dealt with it in these words: 
“Mr Littlewood decided to give the applicant the benefit of the doubt but he warned the applicant about his future conduct.  Mr Littlewood told the applicant that if he were to receive any similar complaints in the future “he would be out on his ear” because he was concerned about the school’s reputation being harmed and the damaging effect it could have on its business.  Mrs Syer advised the Applicant that for his own good he should refrain from taking students to his home in the future.”

4.	The appellant did not act upon this advice. Early in February 1997 he took to his home a female Japanese student who had been in the country for only a few days and who hardly knew him. He had sexual intercourse with her.  He was subsequently charged with rape and was tried in September 1997. He was acquitted after maintaining that intercourse was consensual.  During the whole of the period it was a condition of his bail that he did not make any contact with the officials of the school and plainly, there was no opportunity for any investigation.  But subsequently the appellant was dismissed without having had any formal investigation at the school or any disciplinary hearing. It was on that basis that it was conceded that his dismissal was unfair. 

5.	In addition to that basic summary of the facts there are other important matters which ought to be mentioned. The tribunal sets them out in paragraph 11 of its reasons: 
“The school has no official policy about student/teacher relationships which both parties being adult and consenting, are tolerated so long as they do not give rise to any cause for concern and do not bring disrepute to the College’s good name.
And then they continue: 
“The School therefore turns a blind eye unless any particular relationship causes or ends in a problem which the School is forced to deal with or complaints are received from students.”

6.	During the course of argument the tribunal pointed out that while of course the school cannot police or interfere in the lives of consenting adults, it does not follow that the school can have no official policy or disciplinary rules which will have disciplinary sanctions for members of staff who engage in relations with pupils.  Any university lecturer who has a sexual relationship with one of his or her students, whether over the age of 18 or not, would undoubtedly be subject to disciplinary proceedings and it is difficult to see why this school had no such policy, why this school turned a blind eye to such relationships. The reason for rules is obvious.  This school accommodates vulnerable people of both sexes from abroad.  They are strangers in this country, they speak very little English and  are at the mercy of predatory members of staff, if there are any such. It is not for the protection of the College’s reputation that there should be rules but for the protection of students. In our judgment the tribunal failed when considering its decision to give sufficient weight to the ambivalent moral context in which relationships between pupils and teachers were accepted at this college. 

7.	Miss Heal submits  that the tribunal was wrong in concluding that it was inevitable that even with a proper disciplinary procedure, this appellant would have been dismissed. She relies heavily on the evidence which was given to the tribunal by Mr Littlewood the Principal, which we take from the Chairman’s notes: 
“I can’t say definitely that I’d have dismissed.  Acquittal a factor.  But would have investigated. First incident - I’d warned him.  Second incident - similar nature.  The fact that he had brought name of school into disrepute would have been reason.  
“If disciplinary hearing had taken place I’d have got colleague from Cambridge as I’d already been involved to prevent bias.”

8.	The tribunal was not entitled to conclude that it was inevitable that the appellant would have been dismissed.  There was a strong prospect that he would have been dismissed for  taking a student into his home in these circumstances and having sexual intercourse with her a few days after her arrival in this country, after a warning which he had received only a few months before. Nevertheless it is possible that an independent disciplinary body might have taken the view that since there had been no formal disciplinary procedure in September 1996 and  no formal rules of conduct for members of staff,  since other members of staff were having relationships with students and since no criminal activity had been proved against the appellant, there was also a prospect that some lesser sanction might  have been imposed. 

9.	 We have considered whether or not it is our responsibility to remit the case to a fresh tribunal for the evidence on this point to be reheard so that a fresh tribunal can form a view as to what deduction should be made from any compensation that might otherwise be awarded on account of the prospect that the appellant might in any event been dismissed and in this respect, we are of course following the repeatedly approved and followed observations of Browne-Wilkinson J in Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91 where he said: 
“There is no need for an all or nothing decision if the Industrial Tribunal thinks there is a doubt whether or not the employee would have been dismissed.  This element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment.” 

10.	In our judgment a fresh tribunal would be in possession of no more material than we are.  In our judgment, bearing in mind that these questions are matters of balance and not mathematical assessment,  the assessed  compensation should be reduced by 50% to reflect the fact that the appellant might still have lost his job if a proper procedure had been conducted. 

11.	So far as the extent of the contributory conduct is concerned it is clear from the views which we have expressed in relation to the ‘Polkey’ award that the respondents cannot divest themselves of responsibility for all of the consequences of their unfair dismissal.  We have accepted that there is a possibility that some sanction short of dismissal might have been appropriate to deal with this particular conduct.  It has to be borne in mind that there was never any finding in relation to the incident reported in September 1996 that the appellant had in fact behaved improperly and in relation to the February incident, his defence at the Crown Court was that the sexual intercourse was consensual and he was acquitted.  

12.	In those circumstances, the most that can be said against the appellant, serious though it is, that despite a clear warning he took a student in a vulnerable position back to his home a few days after her arrival in this country and had sexual intercourse with her. In those circumstances we think that the decision that he was as much 100% to blame for his own dismissal and that both his basic and compensatory award should be extinguished on that basis as to one which no reasonable tribunal could have come.

13.	In Rao v Civil Aviation Authority [1994] IRLR 240 the Court of Appeal had to consider the steps which a tribunal should take when it was contemplating making both a ‘Polkey’ reduction and a reduction on  account of contributory fault.  That was a case where the tribunal had made deductions in respect of both. The employee appealed and it was held that it was permissible to make two reductions, provided the matter was approached carefully, so as to avoid double counting.  Sir Thomas Bingham M.R said at paragraph 11: 
“For my part I consider that it is permissible in principal for a deduction to be made under both S.74 (i) and S.74 (vi) and I would think that section curiously drafted, if indeed both those sub sections were directed to the same thing.  It would however, seem to me appropriate that those making this calculation should first of all assess what is the amount of the loss which the employee has sustained under S.74 (i) and thereafter, in the light of that finding make their decision as to the extent to which the employee caused or contributed to the dismissal and on the question of what reduction it would be fair and equitable to make, having regard to that finding.  It does, therefore seem to me that the 80% deduction should be considered first and the contributory just and equitable finding should follow.” 
And Lord Justice Staunton said: -
“It may turn out that the deduction which is just and equitable under S.73 (vii) b is not the same as that which is just and equitable under S.74 (vi).  The reason for that could be that in the case of S.74 there had already been a deduction under sub section (i) by reason of the Tribunal’s conclusion as to the likelihood that Mr Rao would not have remained further employed in any event that can affect what is just and equitable under sub section (vi).'' 

14.	For those reasons we do not feel that we can prescribe to the tribunal what percentage reduction should be made to reflect the appellant's contributory conduct.  There is no doubt in our judgment that he has been guilty of conduct which is culpable and blameworthy and which contributed towards his dismissal.  But the extent to which the basic and contributory awards should be reduced on account of that must depend to some extent upon the final figure assessed by the tribunal in relation to the basic and compensatory awards, having applied a 50% ‘Polkey’ reduction in accordance with our ruling.  The tribunal will no doubt be guided by the observations which we have made about the serious nature of the appellant's conduct, even in the absence of any clear procedure and clear disciplinary warning consequent upon the September 1996 investigation.  

15.	In the result, the appeal is allowed and the case is remitted to the tribunal to determine the amount of the basic award and the compensatory award in the light of our findings that there should be a 50% reduction in those awards reflecting the prospects of the appellant being dismissed if there had been a proper disciplinary procedure and for the tribunal then to consider to what extent if any there should be a further reduction in the basic and compensatory award to reflect the undoubted contributory conduct of the appellant.