DRONSFIELD v UNIVERSITY OF READING – UKEAT/0200/15/JOJ

Appeal No. UKEAT/0200/15/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 15 April 2016

Judgment handed down on 21 July 2016

Before

HIS HONOUR JUDGE DAVID RICHARDSON

(SITTING ALONE)

DR J DRONSFIELD                                                                                               APPELLANT

UNIVERSITY OF READING                                                                                RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant MR BRUCE CARR

(One of Her Majesty’s Counsel)

Instructed by:

Doyle Clayton Solicitors Ltd

One Crown Court

Cheapside

London

EC2V 6LR

 

 

For the Respondent MR SIMON CHEETHAM

(of Counsel)

Instructed by:

Blake Morgan LLP

New Kings Court

Tollgate

Chandlers Ford

Hampshire

SO53 3LG

 

 

 

SUMMARY

UNFAIR DISMISSAL – Reasonableness of dismissal

UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal

 

  1. Conduct. The Claimant’s employment was governed by royal charter and statute as well as his contract of employment.  The Respondent was entitled to dismiss only for good cause as defined in the statute which, so far as material, required it to prove “conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment”.  The Employment Tribunal equated these words with the concept of gross misconduct.  In applying section 98(4) of the Employment Rights Act 1996 it ought to have considered whether it was reasonable for the Respondent to find that the Claimant was guilty of “conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment”.  Its reasoning showed that it did not do so.

 

  1. Investigation. At a late stage in the preparation of an investigation report opinions favourable to the Claimant were excised from the report.  The Employment Tribunal found that the report represented genuine conclusions after receiving honest and unbiased advice.  But it remained the case that significant opinions favourable to the Claimant were excised from the report; and the Employment Tribunal ought to have asked whether the conclusions of the investigation were fully expressed in the report; if not why not; and whether it was reasonable to dismiss having regard to what was omitted in the final version of the report.

Appeal allowed.

HIS HONOUR JUDGE DAVID RICHARDSON

 

  1. This is an appeal by Dr Jonathan Dronsfield (“the Claimant”) against a Judgment of the Employment Tribunal sitting in Reading (Employment Judge R Lewis, Mrs Parsons and Mr Selby) dated 31 March 2015. By its Judgment the Employment Tribunal rejected a claim of unfair dismissal which he brought against the University of Reading (“the Respondent”).  He had been dismissed for failing to report a sexual relationship with a student.

 

  1. There are three grounds of appeal. The first relates to the interpretation of a phrase in the Respondent’s statutes defining the circumstances in which the Claimant could be dismissed for good cause – “conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment”.  The second relates to the quality of an investigation report which was altered after discussions with the Respondent’s Human Resources Department and in-house lawyer.  The third relates to the Employment Tribunal’s approach to unfair dismissal: did it take account of the “career-ending” consequences of dismissal for the Claimant?

 

The Legal Background

  1. The Respondent is an independent corporation with charitable status established by royal charter granted in 1926. Its objects, powers and governance are defined by the charter.  Pursuant to the charter its council promulgated statutes relating to its activities.

 

  1. Statute XXXIII was concerned with academic staff. It set out detailed provisions for such matters as redundancy, discipline, dismissal and removal from office, removal for incapacity, appeals and grievances procedures.

 

  1. Clause 1 provided as follows:

“1. This Statute and any Ordinance or Regulation made under this Statute shall be construed in every case to give effect to the following guiding principles that is to say:

(a) to ensure that academic staff have freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions without placing themselves in jeopardy of losing their jobs or privileges;

(b) to enable the University to provide education promote learning and engage in research efficiently and economically; and

(c) to apply the principles of justice and fairness.”

 

  1. Clause 2 provided as follows:

“2. No provision in Part II or Part III shall enable the body or person having the duty to reach a decision under the relevant Part to dismiss any member of the academic staff unless the reason for his dismissal may in the circumstances (including the size and administrative resources of the University) reasonably be treated as a sufficient reason for dismissing him.”

 

  1. Clause 5 defined the meaning of “good cause” for the purpose of the statute:

“5. (1) For the purposes of this Statute ‘good cause’ in relation to the dismissal or removal from office or place of a member of the academic staff being in any case a reason which is related to conduct or to capability or qualifications for performing work of the kind which the member of the academic staff concerned was appointed or employed to do means:

(a) conviction for an offence which may be deemed by a Tribunal appointed under Part III to be such as to render the person convicted unfit for the execution of the duties of the office or employment as a member of the academic staff; or

(b) conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment; or

(c) conduct constituting failure or persistent refusal or neglect or inability to perform the duties or comply with the conditions of office; or

(d) physical or mental incapacity established under Part IV.”

 

  1. Subsequent provisions of the statute governed dismissal for good cause. Clause 14 applied to cases where it was alleged that conduct might constitute good cause for dismissal or removal from office.  It provided for the Vice-Chancellor to “institute such investigations or enquiries (if any) as appear to him to be necessary” to “enable the Vice-Chancellor to deal fairly with any complaint brought to his attention”.  There was no stipulation as to the form an investigation might take or the duties of an investigator.  Following an investigation the Vice-Chancellor had a range of options.  He might (as he did in this case) direct a Pro-Vice-Chancellor to prefer charges to be considered by a Tribunal set up under clause 16.  If so, it was the function of the Tribunal to send its decision and recommendation to the Vice-Chancellor who would take the ultimate decision.

 

  1. In October 2005 the Claimant was appointed by the Respondent to be Reader in Fine Art. His title subsequently changed to Associate Professor but the terms of his appointment remained essentially the same.  His contract contained the following provisions:

“4) (a) This appointment is terminable by three months’ notice on your part or by six months’ notice on the part of the University given in writing, and unless otherwise agreed expiring on 31 March, 30 June, 30 September or 31 December; but it will not be terminated by the University except pursuant to Statute XXXIII. [Emphasis added]

8) This appointment is subject to

(a) the Charter, Statutes, Ordinances and Regulations of the University; and

(b) the Rules for Academic Staff as may from time to time be in force.

10) You will be a Member of the Academic Staff under the terms of Statute I and Statute XXXIII.”

 

The Guidance

  1. The Respondent provided a document entitled “Guidance provided to University of Reading Staff in relation to Staff/student personal relationships”. It was common ground at the Employment Tribunal hearing that this document, although not contractual, represented the shared understanding and values of the academic staff.  The Employment Tribunal described this document as “a crucial part of the case” (paragraph 15.1).

 

  1. The guidance stated that the Respondent did not seek unduly to interfere in relationships between consenting adults. It pointed out however that the Respondent had a duty of care to its students.  It continued with a reminder of the necessity to maintain “the boundaries between professional and personal life”.  It then stated:

“A member of staff who is in a relationship with a student must not be directly professionally involved with assessing or examining that student, and in general this would apply also to teaching.  The Head of Department, or the appropriate Dean, must therefore be informed so that the necessary arrangements can be made; these will of course seek to ensure that the student is neither advantaged or disadvantaged.  A declaration of this kind will be treated in complete confidence.”

 

  1. The guidance reminded teaching staff of the imbalance of power inherent in the relationship between teacher and student. There was what the Employment Tribunal described as a “striking section” headed “When in doubt”:

“Should any member of staff have the slightest doubt about an overlap of personal and professional interest, this doubt should be declared to the Head of School in the first instance … Should a member of staff prefer to approach the matter less formally in the first instance, perhaps to reflect on and clarify their thoughts and feelings about whether their concerns are justified, a completely confidential consultation with Human Resources or Counselling and Wellbeing could be considered.”

 

  1. The Employment Tribunal summarised the position as follows:

“15.4. It was common ground that although non contractual, the Guidance represented the shared understanding and values of the academic staff of the University.  We interpret it as stating that the University discourages, but does not prohibit, any non-academic relationship between teachers and students.  Although the words ‘consenting adults’ imply an emotional and / or sexual relationship, we find that the Guidance includes, but is not limited, to those situations.  Where there is any non-academic relationship between teacher and student, we find that the Guidance makes clear that the teacher must not continue to assess, examine or in general teach the student.  It states that a teacher in those circumstances “must” inform the head of department or Dean of the existence of the non-academic relationship.  It makes clear that the duty to inform exists for the benefit of the student, and is seen as confidential.  It advises that the consent of the student to the non-academic relationship is an irrelevant consideration, and specifically reminds teaching staff of the potential vulnerability of students and the power relationship between them.”

 

The Claimant’s Dismissal

  1. During the academic year 2011-2012 the Claimant was involved in the academic supervision of a student called A. There had, on the Claimant’s account, been advances by A prior to November 2011, but it was in November 2011 that sexual intercourse took place between them.  The Claimant did not follow the guidance.  He did not report to any manager or colleague that there had been a sexual encounter.  He continued to supervise her dissertation.  She submitted work which he assessed.  There is no suggestion that he favoured her in the assessment: two others independently assessed the same work, and all three marks were close.  She graduated in 2012.

 

  1. In June 2013 the Respondent received a complaint from A’s former boyfriend. He said she had been ill and vulnerable when a student and had entered into a sexual relationship with the Claimant.  He explained that he had contacted the Respondent because he had observed the Claimant recently behaving in a sexualised manner with other students at a degree show.

 

  1. The Vice-Chancellor appointed Professor Stuart Green, Head of the School of Construction Management and Engineering, to carry out an investigation with the support of Ms Claire Rolstone, a HR partner. The allegations to be investigated were framed as follows:

“● Acting in breach of your duty of care responsibilities towards students;

  • Having a sexual relationship with a student without reporting it, creating a potential conflict of interests;
  • Abusing your position of power to influence a vulnerable student and enter into a personal relationship; and
  • Holding late night meetings with female students involving alcohol.”

 

  1. The Claimant replied in writing to the allegations at considerable length. He admitted that he had sexual intercourse with A on one occasion in November 2011.  He said that she had openly pursued him and he had succumbed to her advances once.  He denied that it amounted to a relationship.  He gave three reasons for not reporting the matter:

“Three reasons:

  1. I was vulnerable and isolated due to actions of Departmental colleagues about which I had lodged a formal complaint to the University;
  2. I had no faith in the Institution due to its response to my complaint;
  3. At no point did I believe there was anything “on-going” about the contact with the student.”

 

  1. The Claimant also said that A had herself implored him not to report the matter; that he had been under personal strain because his wife was excluded from the country at the time by reason of immigration difficulties; and he did not think that whether he reported the matter would make any difference to how he would approach the task of supervising the last part of A’s dissertation. He said, however, that it would have been better to have reported the matter and he regretted not doing so.

 

The Investigation Report

  1. The investigation report produced by Professor Green and Ms Rolstone was presented as a joint report: it was written in the plural and signed by both of them. It was in some respects favourable to the Claimant.  They said that the “frankness and honesty of [the Claimant] was such that it was deemed unnecessary to conduct any further interviews”.  They said they had no cause to doubt his sincerity.  They found no evidence to support the fourth charge.  They accepted that working relationships within the department between the Claimant and his head of department had been severely strained for some time.  They said there was no evidence of any “predatory intent” when he entered into the relationship with the student; and no evidence that he initiated any pass or instigated any suggestive or inappropriate contact.

 

  1. In other respects, however, the investigation report was not helpful to him. They rejected as spurious his argument that there was no relationship between himself and A requiring him to report the matter.  They considered that the dysfunctional relationships within the department did not override the Claimant’s responsibility to report the matter.  They found there was “evidence to support” the first allegation and said that whether the Claimant’s conduct amounted to an abuse of power or a breach of duty of care to the student was a question to be determined by any subsequent panel.
  2. Ms Rolstone was not a witness at the Employment Tribunal hearing; but there was a witness statement from her within the Employment Tribunal’s papers. It quoted the following passage, indicating that from her perspective Professor Green had been approaching the task of investigation on the basis of a misunderstanding:

“I found in working with Professor Green, particularly as we prepared the report from the initial drafts, that his approach was to draw conclusions based on the factual findings of the investigation.  It was my view that it was not appropriate for the investigation to draw conclusions from the findings – which would be the role of the disciplinary tribunal – but merely that we should report our factual findings.”

 

  1. The second ground of appeal arises out of the process of drafting the investigation report. There had been other passages favourable to the Claimant in earlier drafts.  These had been omitted or changed in the light of discussions between Professor Green, Ms Rolstone and Ms Rowe, the Respondent’s in-house employment solicitor.  Privilege was not waived on the advice given by Ms Rowe.  Mr Bruce Carr QC on behalf of the Claimant took me in some detail through the passages which were changed.  Some appeared to me to be of relatively minor significance but there is no doubt that between the penultimate and final versions there were significant changes.  The following three, especially the third, are of significance:

Version 5 – page 7 – “We are not minded to believe that he purposefully abused a position of power or that he unduly influence the student … In conclusion, we are clear that both parties entered into the relationship as consenting adults and as such there is no evidence of abuse of power.  We therefore find the second allegation to be unsubstantiated.”

Version 6 – page 7 – both sentences deleted

Version 5 – page 7 – “Despite his compromised position, the evidence does not suggest that he provided this student with any favour or disfavour in comparison with other students.  Furthermore, we are comfortable that JD did not seek to gain any personal gain or advantage from the situation.  We are further clear that JD had his own personal difficulties during the course of his relationship with the student.  In conclusion we find it difficult to conclude that there was any breach of duty other than to report the relationship once it developed.  In essence we therefore find the third allegation to be unsubstantiated.”

Version 6 – page 8 – “Despite his compromised position, JD is clear in his emphasis that he did not provide this student with any favour or disfavour in comparison with other students.  In conclusion, whether or not JD’s conduct in the circumstances described above amounted to a breach of duty of care towards the student is a question to be determined by any subsequent disciplinary panel.”

Version 5 – page 8 “Summary of findings.  In essence, there is no evidence to suggest that the conduct of Dr Dronsfield constituted “conduct of an immoral, scandalous or disgraceful nature”.  He did have a sexual relationship with a student and we are confident that both parties entered this relationship as consenting adults.  However we are confident that Dr Dronsfield was in direct contraction of University guidance in respect of reporting personal relationships with students to the University … We therefore find that there is no substantive evidence in support of the contention that Dr Dronsfield engaged in any malicious or predatory behaviour in respect of female students.  We do however believe that his failure to report the relationship constituted a severe error of judgment as being in direct contradiction of University guidance.

Version 6 – passage deleted in its entirety.

 

The Subsequent Procedure

  1. I can describe the subsequent procedure quite briefly, for the grounds of appeal with which I am concerned do not focus upon it. The Vice-Chancellor appointed a disciplinary panel to consider the three allegations which were to some extent supported by the investigation report.  A disciplinary hearing took place on 25 March 2014.  The panel produced a report upholding the three allegations and recommending dismissal.  The Vice-Chancellor accepted the recommendation.  The Claimant was summarily dismissed on 8 April 2014.  He appealed; an independent barrister, Ms Prince, was appointed to hear the appeal which was finally determined on 17 October 2014.  She upheld the appeal in part, dismissing the charge of abuse of power.  But she confirmed the other charges and upheld the dismissal.  The Employment Tribunal described her reasons as a model of clarity.

 

The Employment Tribunal’s Reasons

  1. In a well crafted set of Reasons the Employment Tribunal made detailed findings of fact on which I have already drawn in this Judgment.

 

  1. It considered the meaning of clause 5(1)(b) of Statute XXXIII in the following paragraphs:

“14.5. Mr Cheetham invited us to find that although expressed in archaic language, the Statute is to be read with a modern understanding of the words in question, and subject to the modern requirements of the Employment Rights Act.  Mr Carr submitted that the Statute imposes a higher standard on the respondent than in the usual case of dismissal, reflecting the necessity to ensure that academic staff might not be dismissed in what are otherwise “ordinary” circumstances.  His submission was that the standard to be applied by the University in dismissing academic staff was a higher and more rigorous standard than in relation to other staff.

14.6. These are two separate points, and our approach is with Mr Cheetham on both.  We see no magic in the words, “immoral, scandalous or disgraceful”.  In our judgment, those words are immediately qualified by the emphasised words which follow, and are no more than the language thought in 1926 appropriate to describe what in modern language is gross misconduct, i.e. conduct incompatible with the retention of employment.  We do not seek a literal interpretation of the three adjectives, either as they were understood in 1926 or today.  It follows secondly that we agree with Mr Cheetham that the standard of fairness to be applied is that which we apply in accordance with section 98 of the Employment Rights Act 1996, and no higher, having regard, in appropriate cases, to the potentially career-ending circumstances of an individual case.”

 

  1. Within its findings of fact the Employment Tribunal dealt with the question of changes to the investigation report in paragraphs 18.21 to 18.26. It noted and considered Mr Carr’s submission that:

“18.22. … Professor Green had been steered by purportedly independent advisors, notably Ms Rowe and Ms Rolstone, away from the exercise of his own judgement, and in the direction of a report which would be sufficiently grave to warrant disciplinary action.”

 

  1. The Employment Tribunal set out conclusions concerning that submission in the following terms:

“18.25. We have found this a troubling part of the case.  Our difficulty has been that, if Professor Green went about his task on the basis of inexperience and misunderstanding, one would expect the result to be a random scattering of mistakes, some in favour of the claimant and others in favour of the University.  However, all the matters which were redacted in light of advice from Ms Rolstone and Ms Rowe appeared to favour the claimant, and, as Mr Carr pointed out, the report left a number of expressions of opinion in place, casting doubt on Professor Green’s assertion that he had been advised to remove all expressions of opinion.

18.26. We have accepted on the respondent’s behalf both of the pillars on which it rested this part of its case.  We accept the integrity of Professor Green’s oral evidence in saying that as the final version was one which he signed off, it embodied his genuine, personal view and findings.  We accept secondly the integrity of the written statement from Ms Rolstone, written directly to the Vice Chancellor.  Our finding accordingly is that there was nothing improper or biased in the advice given to Professor Green, or in the reconsideration which he undertook in the light of advice, and we accept his evidence that he signed off the report in good faith because it accurately represented his conclusions.”

 

  1. The Employment Tribunal made reference to section 98(4) of the Employment Rights Act 1996 and to leading cases on that provision. It said, correctly, that at each stage of the process the question was whether the employer’s decision or conclusion was within the range of reasonable responses.  It found that the reason for dismissal was the Claimant’s failure to report a sexual relationship with a student whose work he was responsible for assessing and did assess.  This was a reason relating to conduct.  The Employment Tribunal went on to say:

“22. We have in our findings above addressed what seemed to us the major material issues raised by Mr Carr which might go to a finding of unfairness under section 98(4).

  1. We find that, in dismissing the claimant, the Vice Chancellor and the respondent had a genuine belief based on reasonable evidence and after reasonable enquiry that the claimant had committed the misconduct complained of. When we turn to the range of reasonable responses, we remind ourselves that the question is not whether it was open to the University to suspend or to warn; plainly it was. The question is whether dismissal was within the range of reasonable responses available to the respondent in all the circumstances, and we unhesitatingly find that it was.  We find that the claimant was fairly dismissed, and his claim of unfair dismissal fails.”

 

Statutory Provisions

  1. By virtue of his employment status the Claimant had the right not to be unfairly dismissed: see part X of the Employment Rights Act 1996. Where a complaint of unfair dismissal is brought it is first for the employer to show the reason for dismissal: see section 98(1) and (2).  It was then for the Employment Tribunal to decide whether the dismissal was fair.  In order to do so it must apply section 98(4) which provides as follows:

“(4) … 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.”

 

Submissions

  1. On behalf of the Claimant Mr Carr submitted that the Employment Tribunal’s Reasons erred in law in holding that the phrase “immoral scandalous or disgraceful nature incompatible with the duties of the office or employment” was no more than a synonym for gross misconduct. It therefore ignored contractual protection to which the Claimant was entitled: see, for example, Stoker v Lancashire County Council [1992] IRLR 75.  Amendments to the Respondent’s statutes had introduced additional provisions but they had not revised the key wording, which it was the Respondent’s duty to apply.

 

  1. In answer to this submission Mr Simon Cheetham on behalf of the Respondent submitted that the Employment Tribunal adopted the correct approach. The words of the Respondent’s statute were to be treated as “always speaking”: see Bennion on Statutory Interpretation (sixth edition) at section 288.  Looking at the phrase as a whole, it indicated in modern parlance no more than gross misconduct.  Stoker was distinguishable because it related to a procedural safeguard.

 

  1. Mr Carr next submitted that the Employment Tribunal departed from section 98(4) when considering the question of investigation. It found that, because of the combination of the integrity of Professor Green and Ms Rolstone and the fact that the advice given was not “improper or biased” that the substantial changes to the report did not render the dismissal unfair.  In this respect it did not apply the correct test – which is not subjective integrity but objective fairness.  Professor Green had not found evidence of “good cause” within the meaning of clause 5(1)(b), concluding only that the Claimant was guilty of an “error of judgement”.  There was no proper basis for withholding this conclusion from the Vice-Chancellor and the subsequent disciplinary process.  He relied on Ramphal v Department of Transport [2015] IRLR 985.

 

  1. In response Mr Cheetham submitted that the Employment Tribunal did not commit this error of law. It had found, as part of its findings of fact, that Professor Green produced a report in good faith which genuinely reflected his views and that the advice he received had not been improper or biased.  It was later within its Reasons that it identified and applied the correct legal test: see paragraphs 22 and 23.

 

  1. Mr Carr’s final submission was that the Employment Tribunal did not have regard to the potentially career-ending consequences of dismissal: see Salford Royal NHS Foundation Trust v Roldan [2010] ICR 1457 at paragraph 13. Mr Cheetham replied that the Employment Tribunal specifically referred to the “potentially career-ending circumstances of an individual case” in paragraph 14.6 of its Reasons.

 

Discussion and Conclusions

  1. The Respondent was required both by its own statute, made under its royal charter, and by its contract of employment with the Claimant to apply specific provisions before dismissing a member of academic staff. These provisions were different in character from those found in modern contracts of employment.  Generally speaking, such contracts do not define the circumstances in which dismissal for misconduct, summary or otherwise, is permitted: this is left to a disciplinary procedure, one feature of which will often be to set out a non-exhaustive list of examples of gross misconduct which may lead to summary dismissal.  Statute XXXIII, however, applied to all dismissals, not only summary dismissals; and it set out specific criteria which must be charged and proved before any decision to dismiss was taken.

 

  1. The Respondent was therefore required to be satisfied before dismissing that the Claimant was guilty of “conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment”. The Respondent was not entitled to replace this wording with some more general concept such as gross misconduct.  Its duty was to apply this wording.  It is beside the point whether this wording might, in any particular case, provide more protection to a member of academic staff than the modern concept of gross misconduct: this was not the issue for the Respondent.  It was not entitled to supplant the words of the statue with any other concept.

 

  1. I agree with the Employment Tribunal that the words “immoral scandalous or disgraceful” are to be judged against contemporary standards of what is immoral, scandalous or disgraceful. Clause 5(1) is “always speaking” in this sense.  The words are not to be given a narrow meaning: “immoral” is not restricted to sexual immorality, but refers to generally accepted moral and ethical standards to be expected of a member of academic staff at the time under consideration.  The definition is to be considered as a whole: the Respondent would not be entitled to dismiss for conduct which was a departure from those standards unless it was incompatible with the duties of the office or employment.  Likewise, the words “scandalous” and “disgraceful” are to be applied in the context of contemporary standards for the officer holder or employee concerned.  However the Respondent would not be entitled to substitute for the words of the statute some general test of gross misconduct.

 

  1. This brings me to the task of the Employment Tribunal in applying section 98(4). It was required to review every aspect of the decision to dismiss – including the investigation, the disciplinary process, the findings and the sanction imposed – against the standard of the reasonable employer.  Its starting point ought to have been the Respondent’s own stated test for dismissal in its statute and contract of employment.  Section 98(4) required it to consider whether the Respondent acted reasonably in dismissing having regard to its own test – whether the Claimant’s conduct was of an “immoral scandalous or disgraceful nature incompatible with the duties of the office or employment”.

 

  1. I do not think any authority is required for this proposition: it follows from section 98(4) and basic principles of unfair dismissal law. Stoker v Lancashire County Council is illustrative of the proposition in the slightly different context of contractual disciplinary procedures.  In that case the Employment Tribunal found that the employer acted reasonably in dismissing an employee for misconduct: but it misinterpreted the provision of the employer’s contractual disciplinary code.  The Court of Appeal held that, in order to apply section 98(4), the Employment Tribunal was required to consider whether the dismissal was fair in the light of the fact that the employee had not been afforded his contractual rights: see paragraphs 20, 22 and 24.

 

  1. I have reached the conclusion that the Employment Tribunal fell into error in applying section 98(4) because of its view that the words in question were no more than the language thought in 1926 appropriate to describe what in modern language is gross misconduct. Just as the Respondent was not entitled to supplant the specific provision of the statute by a general “gross misconduct” test, so the Employment Tribunal in deciding whether dismissal was reasonable was bound to address this question in the light of the specific statutory test.

 

  1. I do not think the Employment Tribunal did so. If it had done so, I would expect to see within its Reasons findings about (1) whether and why the disciplinary Tribunal found the test to be satisfied, and (2) whether, in the Employment Tribunal’s estimation, it was reasonable so to find.  This process is absent from its reasoning.  I cannot see from its reasoning what the Respondent found at the disciplinary or appeal stage about the application of the test and whether the Employment Tribunal considered that its reasoning fell within the parameters of a reasonable employer.

 

  1. Given this error of law, the case will have to be remitted. The Employment Appeal Tribunal’s statutory task is to ensure that Employment Tribunals take their decision on correct legal principles.  The Employment Appeal Tribunal is not entitled to substitute its own view where more than one result is possible: see Jafri v Lincoln College [2014] ICR 920 at paragraphs 21 to 23.  I cannot say that only one result was possible in this case.  While the Respondent’s case, fortified by the guidance to which the Employment Tribunal referred, appears strong, I note that Professor Green, in a passage which was deleted from his final investigation report, concluded there was no evidence to suggest that the Claimant’s conduct constituted “conduct of an immoral scandalous or disgraceful nature”.

 

  1. This brings me to the question whether the Employment Tribunal applied section 98(4) correctly in the context of investigation. As its Reasons show, it was plainly concerned about the way in which certain apparently important passages in Professor Green’s draft report came to be excluded from the final version.  These passages were to a significant extent exculpatory, especially on the question whether the conduct met the test in clause 5(1)(b) of the statute.

 

  1. The Employment Tribunal found – and there is no reason to doubt – that the final version represented Professor Green’s genuine conclusions after receiving honest and unbiased advice. The problem however lies not so much in the conclusions which the report expressed as in those which were excised.  In particular there is nothing to suggest that Professor Green changed his opinion on the question whether the Claimant’s conduct was immoral, scandalous or disgraceful: his opinion on the subject was simply excised.  Questions for the Employment Tribunal would appear to be whether Professor Green had changed his opinion on this question, or simply omitted it and if so why.  If Professor Green omitted significant opinions which he held from his final report the question for the Employment Tribunal would appear to be whether it was reasonable for the Respondent to dismiss in circumstances where there had been excised from the investigation report important conclusions, favourable to the Claimant, about the charges in question, including whether they met the test in clause 5(1)(b).

 

  1. The Employment Tribunal did not directly address this question in its Reasons. It did not, for example, find why Professor Green omitted some of his conclusions, although its citation of Ms Rolstone’s misgivings about his approach may point to an answer.  The difficulty about this part of the Employment Tribunal’s reasoning is that it appears to have treated its findings about the honesty and integrity of Professor Green and Ms Rolstone as conclusive.  The Employment Tribunal did not, in its concluding paragraphs, return to the question whether the Respondent had acted reasonably in this respect.  It relied on its earlier findings with no further explanation.  I accept Mr Carr’s submission that the test was not subjective integrity but objective fairness.

 

  1. On this issue also therefore the appeal must be allowed and the matter remitted. Again it is not possible for the Employment Appeal Tribunal to say that only one conclusion is possible.  The Employment Tribunal’s task in this respect will be to see whether Professor Green fully expressed his conclusions in his final report; if he did not, why not; and whether in the light of its findings it was reasonable to dismiss having regard to that which was omitted in the final version of the report.

 

  1. I have reached this conclusion on basic principles without specific reference to Ramphal v Department of Transport [2015] IRLR 985. Speaking for myself, I agree with Judge Serota’s judgment concerning the responsibility of an investigating officer for his own report and the essentially supporting role of a Human Resources officer: see paragraph 55.  I have found it surprising in this case that the investigation report was produced as though it was the joint responsibility of Professor Green and Ms Rolstone.  That is in my experience not normal practice.  I am however conscious that I have not seen the letter of appointment which set up the investigation.  In this, as in all other matters, the Employment Tribunal’s task will be to find facts and then apply section 98(4) of the 1996 Act.

 

  1. In my judgment there is no substance in the third ground of appeal. Paragraph 14.6 of the Employment Tribunal’s Reasons indicates that it was well aware of the principles laid down in Salford Royal NHS Foundation Trust v Roldan.  I do not think further reference to them was required in its Reasons.

 

  1. This leaves finally the question whether remission should be to the same or to a differently constituted Employment Tribunal. This is a question which the Employment Appeal Tribunal approaches in the light of the overriding objective, paying particular attention to criteria set out in Sinclair Roche & Temperley v Heard [2004] IRLR 763 at paragraph 46.  I would have no doubt that the Employment Tribunal would be capable of a professional approach in dealing with the matter on remission: its Reasons are generally thoughtful and of a high standard.  But I have in the end reached the conclusion that it erred in law on two matters of considerable significance; it would have to recapture the evidence and reasoning of Professor Green after a considerable lapse of time; and it might not be easy for it to revisit its decision given its conclusion first time round that it was reasonable to dismiss for gross misconduct.  The hearing before the Employment Tribunal was relatively short, and the result is potentially of great importance to the Claimant.  On the whole I have concluded that remission to a freshly constituted Employment Tribunal is the better course.  This Employment Tribunal will consider the question of unfair dismissal entirely afresh.
  2. Finally, although it is not raised by any ground of appeal, I would comment on one feature of the Respondent’s investigation. It would appear that A was not contacted at any stage of the investigation.  Since the Claimant’s word was accepted in full by the investigating officer this is not a matter of which he can complain (or has complained in this appeal).  But I should not be taken as endorsing the investigation’s approach as being good practice.  To the contrary, I should have thought it was generally good practice for someone in the position of A to be contacted in the course of an investigation to see whether she wishes to contribute to it.

 

Contains public sector information licensed under the Open Government Licence v3.0

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