Appeal No. EAT/1170/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 12th September 1995

	Before

	HIS HONOUR JUDGE J HICKS Q.C.

	MR L D COWAN

	MRS T A MARSLAND

MRS M SCOTT	APPELLANT

DONCASTER METROPOLITAN BOROUGH COUNCIL	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised 27th September 1995

	APPEARANCES

For the Appellant	MR D GRIFFITH-JONES
(of Counsel)
Association of Teachers & Lecturers
7 Northumberland Street
London
WC2N 5DA

For the Respondents	MR T E SHANNON
(of Counsel)
Legal Services
Doncaster Borough Council
P.O. Box 71
Copley house
Waterdale
Doncaster
DN1 3EQ

	JUDGE HICKS Q.C.:   The appellant Mrs Scott was a teacher at Hatfield High School, Doncaster, in the employment of the respondents Doncaster Metropolitan Borough Council, or their predecessors, from 1st January 1977, first as Head of Physical Education. From 1989, after a year's secondment to obtain a qualification in Business Studies, she spent part of her time teaching that subject. She was dismissed on 2nd July 1993 and applied for compensation for unfair dismissal to the Industrial Tribunal which, after a hearing extending over 5 days in September 1994, decided in a reserved decision published on 19th October 1994 that she was not unfairly dismissed, and she appeals against that decision.

	The relevant facts are set out very fully in the Reasons of the Industrial Tribunals whose findings of primary fact are not challenged. It is sufficient to set the scene for present purposes by recording that the appellant's dismissal arose out of the conduct of a public examination in April 1993 and that after a preliminary enquiry the Head Teacher, Mr Smith, suspended the appellant on the ground, as stated in his letter of suspension of 30th April 1993, that he had evidence:

		"... that you had given to pupils copies of the examination paper and that you had given pupils clear assistance in answering questions including the provisions of booklets and other written information."

	The respondent employers had a grievance and disciplinary procedure which involved in serious cases such as this a disciplinary hearing before one committee of Governors, with a right of appeal by way of re-hearing before another such committee. Those committees, it was assumed at the hearing before us, were the effective decision-making bodies, although they reported to the full governing body for formal approval of their recommendations, and the latter's decision was endorsed and implemented by the respondent employers.

	In due course there was a hearing before the disciplinary committee. The appellant was given notice of that hearing by letter of 21st June 1993 which stated the allegation to be considered as:

		"... you committed gross misconduct by your actions in relation to the conduct of the GCSE Business Studies Examination."

That was not very informative, but it is common ground that it should be, and was, read in conjunction with the letter of 30th April 1993 to ascertain the particulars of the charge which the appellant faced.

	The hearing before the disciplinary committee took place on 2nd July 1993 and lasted all day. At the close of the hearing the appellant was told that she was dismissed and that was confirmed by a letter of 9th July 1993 of which the relevant passage is:

		"... The decision of the disciplinary sub-committee was given to you at the close of the hearing followed consideration by the sub-committee of the information presented which was follows:

		1)	That you were guilty of gross professional misconduct arising from a serious error of judgment relating to the conduct of Business Studies examination in that you had provided a frame work for answers to some questions after the questions were known, i.e. beyond the defined research periods and that you be dismissed with immediate effect."

	The appellant appealed and her appeal was heard by the appeal committee on 23rd July 1993, again an all-day hearing. The appeal committee upheld the decision reached by the disciplinary committee. There followed the application to the Industrial Tribunal already mentioned. Although we must come back in a little more detail to the proceedings there it is convenient at the outset to state, since it was the foundation of much of the appellant's case, that no member of either committee was called by the respondents.

	An appeal relies from the Industrial Appeal to this Tribunal only on a question of law. Mr Griffith-Jones for the appellant submits that the Industrial Tribunal's error of law was to treat the hearing before them as turning on the conduct of the employee rather than, as should have been the case, on the conduct of the employer. The relevant statutory provision is Section 57 of the Employment Protection (Consolidation) Act 1978 as follows, starting at subsection (1):

		"(1)		In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show-

			(a)	what was the reason (or, if there was more than one, the principal reason) for the dismissal, and
			(b)	that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of the employee holding the position which that employee held."

One of the reasons in subsection (2) is that it was a reason:

			"(b)	related to the conduct of the employee, ..."

Subsection (3) then reads:

		"(3)		Where the employer has fulfilled the requirements of subsection (1), [subject to various matters not relevant in the present case] ... the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend 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 that question shall be determined in accordance with equity and the substantial merits of the case."

	As to the application of those provisions Mr Griffith-Jones referred us to a passage in the judgment of this Tribunal in the case of Iceland Frozen Foods Ltd v Jones [1983] ICR 17 delivered by Browne-Wilkinson, J. at page 24F:

		"	Since the present state of the law can only found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57 (3) of the Act of 1978 is as follows: (1) the starting point should always be the words of section 57 (3) themselves; (2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair; (3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; (4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; (5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. if the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair."

	In the light of that, the Industrial Tribunal's approach in the present case appears from paragraphs 16 and 17 of their reasons. Paragraph 16 I can read in full:

		"16.		On those facts we find that the reason for dismissal was providing a framework for answers to some examination questions after the questions were known. For the purposes of the Employment Protection (Consolidation) Act 1978 that falls within the category of conduct."

Then in paragraph 17 they begin:

		"17.		We have then to consider the question whether in all the circumstances including the size and the administrative resources of the respondent the respondent acted reasonably in dismissing the applicant for the reasons it did. Mr Adamson-Leigh for the applicant criticises the dismissal in a number of respects. ..."

Then they deal with those respects under, it would seem, four heads, although they are not formally listed numerically. The first concerns the procedure followed in the suspension of the appellant, as to which their conclusion was that:

		"... this was not truly a disciplinary procedure and we do not find that in itself it had any bearing on the fairness of the dismissal itself."

Then they deal with an allegation concerning the treatment by the committees of witnesses and deal with that. I think that it is a fair summary of their conclusion to say that although there might be some grounds for criticism of the appeal committees in terms of patience and courtesy they were satisfied that the most important matters of evidence were in no way excluded and that no unfairness arose from those allegations.

	Then they deal with a criticism of the insufficiency of the minutes and record of the committees, and conclude that they:

		"... were not satisfied on the evidence that we have heard that the respondent has not made a proper record or retained the materials therefore but even if it has not the applicant is not thereby prejudiced."

	Finally, they deal with the contention that the decision to dismiss was beyond the range of response of a reasonable employer. That was advanced, in particular, on the basis of her long and satisfactory record of service on the one hand, which was not challenged, and  secondly of her contention that she received insufficient instruction as to the running of the new examination. They then say that on the evidence before the committees, those committees might fairly have made the conclusion of fact that the applicant had committed the offence as found by them.

	Then they point to the matters to be taken into account on both sides as to seriousness or otherwise, and conclude:

		"... we find that the response of dismissal was within the range of response of a reasonable employer. "

They go on to deal finally (and this perhaps is a distinct fifth point) with a question of inconsistency of treatment of other employees for irregularities, and they find that those were so disparate in nature and gravity that no inconsistency arose. They conclude that the applicant was not unfairly dismissed.

	It is apparent from that summary that the Industrial Tribunal went through the process precisely in the terms of Section 57, dealing first with what was the reason under subsection (1), secondly, whether that reason fell within one of the categories of subsection (2), namely conduct, and then dealing expressly with the question raised by subsection (3), plainly having the authorities summarised in Iceland Frozen Foods in mind, in particular the question whether the dismissal was within the range of response of a reasonable employer.

	Mr Griffith-Jones submitted that for the purpose of considering whether the conduct of the employer was reasonable, and indeed whether it was in accordance with the Act generally, it was necessary to examine the "thought processes" of the employer, as he put it. In the course of his submissions, and in response to questions by members of this Tribunal, that general proposition was examined in particular in relation to three aspects of the process of dismissal. First, what was the reason for the dismissal. Secondly, did the employer act reasonably in dismissing for that reason, in the sense that its actions were within the range of reasonable responses in the way explained in Iceland Foods, and thirdly, did the employer act reasonably in the sense of complying with the requirements of procedural fairness, because it is quite clear on the authorities that that is a matter which may render the dismissal unfair in its own right. 

	As to the first of those three points, the reason for the dismissal, Mr Griffith-Jones says, in our view rightly, that "the reason", in the sense of subsection (1) of Section 57, must be proved by the employer and must be the real reason, not just an ostensible reason not genuinely operative. It is not, as we understand it, disputed by Mr Shannon for the respondents, and we accept, that in that sense what Mr Griffith-Jones calls the thought processes of the employer are relevant, and that on the facts of the present case the relevant thoughts were those of the members of the disciplinary and appeal committees. Although Mr Griffith-Jones pressed the absence of evidence from committee members on this aspect as well as on the others he was, as we understood him, constrained in the end to admit that it was difficult to contend that there was no evidence on which the Industrial Tribunal could find, as it did, that the reason for dismissal was the appellant's conduct, namely the provision of frameworks for answers to some examination questions after the questions were known, or that that finding was perverse, and we are clear that that finding involves no error of law.

	As to 3, the procedural fairness, Mr Griffith-Jones concedes that the appellant's criticisms on this score before the Industrial Tribunal were considered by the Tribunal and that he cannot contend that there was no evidence for their conclusions, or that those conclusions were perverse.

	That leaves 2, did the employer act reasonably in dismissing for the reason for which it did dismiss, in the sense that its action was within what Iceland Frozen Foods calls the "band of reasonable responses", or what is commonly called "the range of reasonable responses"? Here, on the face of Mr Griffith-Jones's citation from Iceland Foods itself, the test of the band of reasonable responses does not involve any examination of the employers' thought processes, and no authority was cited for any different conclusion; indeed Mr Griffith-Jones conceded that the test was an objective one. That does not of course mean that an employer within the band is acting reasonably within the terms of Section 57 (3) if there is other evidence that he is not. One example is procedural unfairness, which we have already discussed as a separate topic, and another, no doubt, is that put by way of illustration by Mr Griffith-Jones in argument of an employer acting for ulterior motives such as sex discrimination. There was however no allegation of any specific ulterior motive before the Industrial Tribunal.

	Mr Griffith-Jones shrank from submitting that as a matter of law an employer must in such cases as this call at least one member of the relevant committee, and indeed it is difficult to see how, if there were any such requirement, it could stop short of calling all of them; they may after all have had different thought processes, and even voted differently on the substantive decision, and any one of them might conceivably have had motives undisclosed to the others. He did submit, however, that in order to succeed on reasonableness the employer must call some evidence as to the thought processes of the deciders.

	Now as tactical advice to employers preparing for an Industrial Tribunal hearing that may well be very sound, but as a proposition of law which should have been applied by the Industrial Tribunal and erroneously was not we reject it. We believe that Mr Griffith-Jones' concession - that the question whether the employers' conduct was within the band of reasonable responses is an objective question - that that concession was correct, and that there is no onus on the employer to disprove every other possible allegation of unreasonable action if the Industrial Tribunal is satisfied that the dismissal was within the band of reasonable response.

	Another way in which Mr Griffith-Jones sought to put this objection, although we are inclined to think that it is really a distinct point, is that there was no evidence before the Industrial Tribunal of the committees' findings on certain disputed points of fact, in particular, whether the appellant was given relevant documentation as to the conduct of the examination. To require such evidence would, in our view, be to impose upon disciplinary panels standards of formal procedure appropriate to courts responsible for giving reasoned decisions. No authority was cited to us to justify such a requirement, and we reject it.

	If we are wrong in our primary conclusion that the Industrial Tribunal was not bound to find against the employer simply by reason of the absence of evidence that the committees considered the relevant questions in dealing with the issue of the range of reasonable response, we are nevertheless satisfied that the decision of the Industrial Tribunal should still be upheld on the basis that there was evidence on that point from Mr Chapman, who described himself as the Assistant Director in the Education Department for Operations, as attending the disciplinary and appeal meetings as Clerk to the committees, and as their adviser on procedure. We have the Chairman's notes of his evidence, no doubt not verbatim, but a note of the ordinary kind, and those notes include the following matters. In his evidence in chief he said that there was "Full written evidence by both parties" and it is not, as we understand it, in dispute that that is a reference not simply to the contemporaneous documentation such as examination papers and examination instructions and the like, but also to witness statements by the teachers who were called before the committees to give evidence, and a summary of information obtained from pupils but not supported by the oral evidence of those pupils, so far as the respondent was concerned - although the appellant herself, as she was entitled, did call some of those pupils. The note of Mr Chapman's evidence continues:

		"I listed final summing up by both parties. I had notes available to advise governors."

Then later on the note reads: "Governors considered evidence". We take that to be a clear piece of evidence by Mr Chapman that in his presence there was some discussion by the committee of the evidence which they had heard. "Considered listed issues". The note does not elaborate on that reference, it may be a reference back to Mr Chapman's evidence that he did list the final summing up by both parties, and it may be that that was a convenient way of going through the issues as presented to the committee. "What implication of dismissal was." That seems to be a clear indication that the committee discussed the consequences of dismissal in the sense, no doubt, of the seriousness of its impact on the appellant's career and so on. "Was it "gross misconduct"." That seems to be a clear indication that the committee discussed the question whether what had happened, which indeed as a matter of primary fact was not really an issue, amounted to gross misconduct. "Considered other alternatives e.g. authority moving her to another school" , which seems to be a plain piece of evidence that the Governors were considering whether dismissal was the only acceptable way of disposing of the matter or whether there were other alternatives. As to the example of moving her to another school, the note of Mr Chapman's evidence continues: "I said it was no longer possible as she was an employee of the school." Now it is quite plain that literally it is not true that she was an employee of the school - it is not the school nor their governors who are the respondents to this application, but the Doncaster Metropolitan Borough Council - but it is not a matter on which we have any evidence or can possibly consider whether his advice was right or wrong. It is, as we understand it, the contention of the respondent that it was right; it is simply not a matter which we can go into. "I advised any dismissal had to be referred to Department of Education. Future references." Clearly the Governors were considering again what the effect of dismissal would be, or of any other disposal of the matter, in terms of what references could be given to potential future employers, and he gave advice about that. Then after another passage the final sentence is: "All actual reasoning is before tribunal:", and that seems to be a piece of evidence about the very point which Mr Griffith-Jones is raising, in the sense of the reasoning of the committee - not of course the private thought processes of individual committee members, but of what was passing between them. 

	Then there is some cross-examination which either did not include any challenge to the relevant parts which I have summarised or, as may be the case, did include such a challenge but one rejected by the witness, and therefore not recorded by the note taker. The parts that are recorded in the notes concern really the point about the extent to which records and notes had been kept of the hearings, and we should mention at this point that one of the difficulties was that although what Mr Chapman referred to as the "full written evidence" in the sense that I have described was available at the hearing before the Industrial Tribunal, what was not available because it had been shredded shortly after the committee hearings were the private notes taken by committee members. It may or may not be - we do not know - that that had some bearing on whether they were called or not in the position where they could not have assisted their own memory from their notes. The reason given was that of confidentiality, and that is understandable, although we cannot help feeling it very unfortunate that those notes were not preserved, given the application to the Industrial Tribunal. But the cross examination, as I have said, deals with matters arising out of the lack of notes, deals with what he concedes was a technical breach in the form which the minutes took, and says that "Both meetings lasted a full day." 

	Then in re-examination he said, or the note says: 

		"Reading minutes with bundle gives a good picture of hearing. My advice to governors was before they made their decision. They knew the range of options. School has to operate to standards."

As I have said, our view is that if we are wrong and Mr Griffith-Jones is right in his submission that there had to be some evidence of the process by which the committees arrived at their decisions then that evidence is there. It is of course not as full or direct as if any members or all the members of the committees have been called, but the question is not whether the Industrial Tribunal was correct in its evaluation of the evidence, but whether there was evidence upon which they could without perversity reach the conclusion which they did.

	For those reasons we consider that this appeal must be dismissed and we do dismiss it. But I add one or two points by way of addenda.

	First, I think it is clear from one of the passages which I read, but I repeat it in case there should be any doubt, that this dismissal, although phrased as one for gross misconduct, was not one on the basis of dishonest action by the appellant, but one arising from a serious error of judgment. 

	The second matter is the unfortunate fact, with which we think it right to express our concern and sympathy, that the appellant is not present at this hearing because of a serious illness which has involved her having been in hospital, although now as we gather discharged, but still not in good health.

	And the last matter, which in a sense is connected with that, is that we wish to record that certainly she has not in any way suffered by her absence from the hearing because we are very grateful indeed to Mr Griffith-Jones for the way in which he has presented her case. Nothing that could have been put forward has been left unsaid; on the other hand nothing has been done unnecessarily to prolong the hearing or to take us away from the main points. We are equally grateful to Mr Shannon for his succinct and helpful presentation of the respondent's case.