Appeal No. EAT/810/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 12 October 1995

	Before

	HIS HONOUR JUDGE J HULL QC

	MR R TODD

	MRS R A VICKERS

MRS J ALIGBE	APPELLANT

(1) BRENTFIELD SCHOOL GOVERNORS	RESPONDENTS
(2) BRENT EDUCATION DEPARTMENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS C MURPHY
	(Of Counsel)
Messrs H Landau & Co
Solicitors
202 Hale Lane
Edgware
Middlesex
HA8  9RD

For the Respondents	MISS A MORGAN
(Of Counsel)
Ms J Garai
(Solicitor)
Brent Council Education Legal Services
Chesterfield House
9 Park Lane
Wembley
Middlesex
HA9  7RW

		JUDGE HULL QC:   This is an appeal by Mrs Aligbe against the decision of the Industrial Tribunal sitting under the Chairmanship of Mrs Stoll (who is now retired) with two industrial Members for London (North) on 24 November 1992, 11 March and 5 April 1993.  Mrs Aligbe had complained to them that she had been unfairly dismissed from her employment as a schoolteacher.  She had been employed by the Respondents, the Brentfield School Governors and the London Borough of Brent at Brentfield School.  She began her employment either in 1983 or 1985 - two dates are with our papers - so she was an employee of standing.  She is a lady who now has achieved her 60th year and so is a teacher of great experience.  She had a difficult task.  So many school teachers do, particularly in city areas. She had difficult children to look after, very young children.  The incident which gave rise to her dismissal was an isolated incident.  On 10 October 1991 it was alleged that she had smacked a young boy aged 4, who was in her care, until he yelled.  So it was a fairly severe smacking, that was what was alleged.  It was alleged that it had been seen by another member of the staff who had reported it and it was alleged that the Appellant had admitted it as much to the Head teacher.  

	The Industrial Tribunal which dealt admirably, it seems to us, with what happened, set out that she complained of her unfair dismissal and that she had been dismissed for alleged gross misconduct in October 1991.  They set out the incident with the child and how she had been suspended:

	"3 	According to the evidence we heard from Ms Burns, at about 10.15 am she was passing the Applicant's classroom, her door was open, she could hear the Applicant shouting and she saw the Applicant "grab Curtis (that was the little boy) who was near to the other door which goes to the playground, standing by the sand tray.  I saw her grab him by the arm and smack him on the bottom quite hard, several times until he cried quite loudly.  What attracted my attention was the Applicant shouting as she was smacking him.

	4 	Ms Burns said she offered to take Curtis out of the room but the Applicant refused.  She said she was shocked by what she had seen and was worried about the child's safety.  She went to the Deputy Head and reported what she had seen.  She made notes after the incident... (they refer to those) 

	5 	Ms Burns said that the Applicant spoke to her as she was on her way home and asked to see her.  She said that she was unable to speak to the Applicant but the latter insisted that it was very urgent and wanted her advice.  `I know I have done something wrong' were her words.

	6 	Ms Burns confirmed that `you cannot use any kind of physical force on a child as a form of punishment, it can never be contemplated'."

	The Tribunal then say: 

	"7 	We heard the evidence of the then head teacher, Mrs Rose Johnson. She had been in post for nearly 6 years at Brentford School.  She left in 1991 to take up the position of a School Inspector.

	She had heard from the Deputy Head that there had been a very serious incident on 10 October 1991 involving Curtis and the Applicant.  As a result of this report she had asked to see Ms Burns who confirmed to her that she had heard shouting from the Applicant's classroom and had seen her hitting Curtis several times.

	8 	Mrs Johnson saw the Applicant in her office.  She was given a description of the incident by her and when told that it was alleged that she had hit Curtis several times, the Applicant replied `I only hit him twice'.  She [Mrs Johnson] told the Applicant she had no alternative but to suspend her and that a disciplinary hearing would have to take place.  The Applicant told her that she knew she had done wrong and asked to be given another chance."

They referred to Mrs Campbell, Curtis's mother.

	"We heard from Ms Campbell, that later that evening, the Applicant called at her house and told her what had happened at school.  Her version was similar to the account she had heard from Curtis that the Applicant had not hit him."

They say a disciplinary panel met on 22 October 1991:

	"10 	.... The decision was taken to dismiss the Applicant.  Ms Eherta Tikur, a parent governor and one of the panel, gave their reasons for reaching their decision.  She said that it was their belief that "corporal punishment" was totally taboo it was against the whole ethos of the school.  It does not take place in the school and it is important that we all know that".  It was a unanimous decision.  The panel believed that `Ms Burns had not falsified anything, the account she gave was reputable.  They were unanimous'.

	11 	The panel considered Mrs Johnson's evidence.  Knowing her standing and credibility in the school, the panel could not accept that she would have said that the Applicant had admitted hitting the child, if she had not in fact done so.

	12 	They considered the evidence given by Ms Campbell and formed the view that she believed that she might be involved in a teacher losing her job and did not wish to be held responsible for the Applicant's dismissal.  For this reason they did not give her evidence a great deal of weight.

	13 	Miss Tikur said that they considered their decision for about 30 minutes.  She remembered that she had brought up the point `the Applicant be not sacked?'  She said she was worried although she knew the measure the panel had to take, Mrs Tikur told us that on any occasion when a child is struck the teacher in question must be dismissed."

Then there was an appeal and the Tribunal say they heard the evidence of Mrs Hilda Glazer who took the chair at the appeal:

	"14 	.... The panel decided to uphold the dismissal.  She said that this decision was taken with a `very heavy heart'.  They considered the possibility of the Applicant staying on, but for the sake of the children "they believe they had no alternative but to dismiss."  The other options they considered were giving the Applicant a final written warning or dismissal with notice.

	15 	Mrs Glazer said the panel believed that Ms Burns had acted precisely in the way she should have done.  The head teacher had believed her and so did the panel.  They believed the head teacher's evidence and that the Applicant had subsequently changed her version.  The panel considered that legally there had been an assault on a child.  The degree of the assault they did not consider material.  They believed they had no alternative because "nothing had been learned from it by the Applicant."  Her belief was that the purpose of the disciplinary procedure was for something to be learned for the future.

	16 	The Applicant was adamant that she had never struck the child and had never admitted doing so to the head teacher.  The Tribunal was unable to accept the Applicant's version of the incident. We  [the Tribunal] unhesitatingly accept the versions of Ms Burns as to what she saw take place.  The Applicant's attempted explanation to account for Ms Burns deliberately lying about what she saw, was extremely unconvincing.  We find as a fact that the Applicant was seen by Ms Burns to strike Curtis."

There the Tribunal were going rather outside the normal scope of their duty as often seen by Tribunals, because they were not merely enquiring into whether the Respondents, that is to say the Governors and the authority, had reasonably formed the view that they did, that the Applicant had indeed struck the child; they were going on to form their own view of that and they concurred in the view which had been formed by the Respondents.  They say:

	"17.	... we prefer the evidence of Mrs Johnson to that of the Applicant.  We find as a fact that she did admit to Mrs Johnson that she had hit the child twice."

	They considered the submission which was made by an official of the N.U.T.  They said that what was submitted on behalf of the Applicant was:

	"18	... that the penalty of dismissal fell outside that reasonable band of responses available to a reasonable employer.  Mr Cankett (the witness called for her) while agreeing that corporal punishment was unacceptable said there were degrees which could legitimately be taken into consideration.  Smacking a child's bottom was an assault but if you dismissed for such an act what would you do in a case of say, a serious sexual assault?  `There are degrees of offence which in turn call for degrees of penalty'."

Then they went on to consider the matters which it was their duty as a Tribunal to consider:

	"19	The Tribunal accept that this is a strong argument.  We considered the careful submissions of Mr Stapley [for the Applicant] regarding procedures and the weight given to the evidence by the two disciplinary panels.  We were fortunate in having his assistance and the care with which he had presented his case.  We considered carefully his cogent argument.  We are satisfied that there were no procedural failures.  The Respondent carried out their own procedures correctly.  In the circumstances of this case despite Mr Stapley's submissions we find that the penalty of dismissal falls within that band of reasonable responses available to a reasonable employer."

	That, on the face of it, was precisely what they had to consider.  All the circumstances of the case.  The statute requires them to do that and they did, and it seems to us that inevitably "all the circumstances" in this context included the fact that the allegation was denied by the Applicant.  She, Mrs Aligbe, said that no such thing had occurred.  She had told the authorities that.  It seems to us that that is a most important circumstance of the case.  The whole purpose of disciplinary procedures is not merely to punish those who transgress the rules which are laid down but, so far as possible, to bring about improvements.  That is much more so in the context of domestic discipline inside an organisation.  It will always be hoped that people can be improved by being checked at an early stage.  If a person having done something wrong says "I admit that I have done something wrong, I very much regret it.   I propose in future not to do that again, I give my assurance solemnly that I will not do that again", that must always be a very important circumstance to a domestic tribunal.  It is true that if the decision is taken to dismiss, the dismissal is not for telling untruths or anything of that sort, it is for the offence of smacking the child.  But the circumstances include the way in which the matter has been dealt with, not only by the Respondents, but also by the person involved.  That must be so as a matter of commonsense.  That was part of the circumstances of the case.  

	The Tribunal then make a hypothetical observation which has led to this appeal.  They say:

	"20	Our decision on this final issue would have been different if the facts had been different.  If the Applicant had not clearly implied that both a colleague and the head teacher were deliberately lying about her conduct we would have considered that the offence, although clearly against the ethos of the school and illegal, when balanced against the Applicant's length of service, her age, and her record did not warrant dismissal.  We would have found that the penalty fell outside that reasonable band of responses."

It is not clear whether they were wise to make a hypothetical remark of that sort.  On the one hand it would be said in the defence of Mrs Stoll and her colleagues that it was right for them to indicate that view of that Industrial Tribunal, which might be of great use to the authorities in future cases.  On the other hand, it was as I say a hypothetical remark, and for any Tribunal to make remarks about other hypothetical cases is always a dangerous thing to do.  One could say "well, the circumstances may vary in a great many ways and perhaps a wise Tribunal will be reluctant to say what it would have decided in various other circumstances".  But however that may be, what they had to do was to consider whether, both procedurally and substantively, this was a fair decision in all the circumstances of the case; whether the employers had acted reasonably in terminating employment in all the circumstances of the case.  They did their duty.  They considered that it was fair in all the circumstances of the case and that the dismissal fell within the band of reasonable responses. 

	It is put to us that since the Applicant had not been dismissed for telling untruths and that was not part of the ground of the panel's decision, the decision of the Industrial Tribunal was perverse, because what they had to do was consider the ground of the dismissal, which was the smacking of the child; and that the untruths had nothing to do with it.  That appears to us to be a fallacious statement and misses the point.  In truth, the domestic panel at the school and the appeal panel and the Industrial Tribunal had all to consider all the circumstances.  The fact that they do not spell out all these matters does not mean that they have not considered them.  If they fail to consider all the circumstances then they are not doing their duty. 

	We can find no ground in law whatever for interfering with this decision, because we think that the argument which is raised on paragraph 20 is an argument which does not in fact hold water at all, with respect, and therefore we have not thought it necessary to call on the Respondents.  The appeal must be dismissed.