THE INDUSTRIAL TRIBUNALS

CASE REF:	547/11

CLAIMANT:			Vedar Crawford

RESPONDENT:		Board of Governors of St Joseph’s Boys School

DECISION
The unanimous decision of the tribunal is that the summary dismissal of the claimant was a fair dismissal for the purposes of the Employment Rights (Northern Ireland) Order 1996.

Constitution of Tribunal:
Vice President:		Mr N Kelly
Members:			Mrs J Townsley
				Mr B McAnoy

Appearances:
The claimant was represented by Mr G McHugh, Barrister-at-Law, instructed by Corr & Sally, Solicitors.
The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

Issues

1.	The issue for the tribunal to determine was:-

“Whether the summary dismissal of the claimant by the respondent was a fair dismissal for the purposes of the Employment Rights (Northern Ireland) Order 1996.”

Background

2.	The claimant was employed as a teacher of Art & Design in St Joseph’s Boys School (‘the school’) from 1999.  In 2000 he was appointed Head of Department for Art & Design.  He was a successful and effective teacher and, during the tribunal hearing, there was no criticism of his professional ability or performance.

3.	In 2010, it emerged that pupils had accessed two sexually explicit video recordings on a laptop, which was the property of the school.  The first video recording was of the claimant engaging in consensual sexual activity with his adult partner.  The second video recording was of the claimant engaging in consensual sexual activity with a second adult female.  

4.	The claimant was suspended from his post.  Following disciplinary proceedings, he was summarily dismissed.  

The respondent

5.	The claimant had originally named two respondents, ie the Trustees of St Joseph’s Boys School and the Council for Catholic Maintained Schools.  The legal employer of the claimant, and therefore the proper respondent to an unfair dismissal claim, is the Board of Governors of St Joseph’s Boys School and the title of the claim is amended accordingly.  

The hearing

6.	The tribunal hearing was over three days, from 28 – 30 May 2012.  The parties were given until 11 June 2012 to submit written representations and the panel met on 18 June 2012 to consider those representations and to reach a decision.  

Relevant law

7.	The proper approach for an industrial tribunal to take when considering the fairness of a misconduct dismissal is well settled and was recently considered by the Court of Appeal in Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47.  

8.	Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

	“130-(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 is either a reason falling within paragraph (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 paragraph if it – 

				(b)	relates to the conduct of the employee, 

(4)	where the employer has fulfilled the requirements of paragraph (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.”

9.	The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin  v  Citybus Ltd [2008] NICA 42 where the Court held:-

“(49)	The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores  v  Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd  v  Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley  v  Post Office and HSBC Bank PLc (formerly Midland Bank) –v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury  v  Hitt [2003] ICR 111.

(50)	In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

	“Since the present state of the law can only be 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 [equivalent GB legislation] is as follows:-

(1)	the starting point should always be the words of [equivalent GB legislation] 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, and another quite reasonably take another; 

(5)	the function of an 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.”
			
(51)	To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all, it must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.  It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt.  The test, and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

10.	In Bowater  v  North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal.  The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal.  Lord Justice Longmore stated at Paragraph 18 of the decision that:-

“I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case.  The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come.  But the employer cannot be the final arbiter of its own conduct in dismissing an employee.  It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

	He continued at Paragraph 19:-

“It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET.  It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal.”

11.	In Fuller  v  London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for that of an objective reasonable employer.  Lord Justice Mummery stated at Paragraph 7 of the decision that:-

“In brief the counsel’s case on appeal that the ET erred in law.  It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’.  That favourite form of words is not statutory or mandatory.  Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity.”

	At Paragraph 38 of the decision, he continued:-

“On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair.  If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller’s claim.”

12.	In Salford Royal NHS Foundation Trust  v  Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which set aside the decision of an employment tribunal on the ground that they had substituted their judgment of what was a fair dismissal for that of a reasonable employer.  At Paragraph 13 of the judgment, Lord Justice Elias stated:-

“Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances.  In A  v  B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and the potential effect upon the employee.  So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite”

In A  v  B the EAT said this:-

“Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers.  Of course even in the most serious cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.”

13.	The Great Britain Court of Appeal stated in Andrew James Taylor  v  OCS Group Limited [2006] EWCA Civ 702:-

“In saying this, it may appear that we are suggesting that Employment Tribunals should consider procedural fairness separately from other issues arising.  We are not; indeed it is trite law that [equivalent GB legislation] requires the Employment Tribunal to approach its task broadly as an industrial jury.  That means that they should consider the procedural issues together with the reason for the dismissal as they found it to be.  The two impact on each other and the Employment Tribunal’s task is to determine whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss.”

Relevant findings of fact 

14.	The claimant was at all material times Head of Department for Art & Design in the respondent school.

15.	The school is a secondary school catering for 892 pupils aged between 11 and 19.  It is a Catholic school with a Catholic ethos.  It employs approximately 60 teaching staff.  The pupils, with the exception of approximately 15 ‘A’ Level pupils, are boys.  

16.	The Art & Design Department taught a subject known as ‘Moving Images Art’.  To assist in teaching that subject, the school had purchased two Apple Mac laptops which were used in the classroom by both pupils and teachers.  It was also common practice, and the claimant was aware that it was common practice, for individual pupils to be allowed to take those laptops home to complete coursework which involved the production of short video recordings.  

17.	After the end of the normal school day on 2 February 2010, the principal of the school, Mr Damian Harkin, was approached by a substitute teacher.  That substitute teacher told Mr Harkin that a pupil had informed him that a group of pupils had viewed a pornographic film involving the claimant on one of the school’s Apple Mac laptops.  

18.	Mr Harkin was told that 15 pupils had been present at the relevant time in the Moving Images Art room.  Fourteen of those pupils had been in Year 13 (aged 16 or 17) and one pupil had been Year 14 (aged 17 or 18).  

19.	The laptop in question had already been taken home by the pupil who had been assigned it for coursework that evening.  Mr Harkin instructed one of his Vice Principals, Mrs McCarron, to go immediately to that pupil’s home to retrieve the laptop.  Mrs McCarron did so and, when she arrived at the pupil’s home, the laptop was found sitting in the hallway where the pupil had left it on arriving home.  Mrs McCarron brought the laptop back to the school and gave it to Mr Harkin.

20.	Later that same evening, after a parent/teacher meeting on the school’s premises had concluded, Mr Harkin and two Vice Principals, Mrs McCarron and Mr Keeley, went to Mr Harkin’s office.  Mr Harkin and Mr Keeley viewed the video (the first video).  Mrs McCarron did not view it but was present.  

21.	It is unnecessary for the purposes of this decision to record in any detail what was shown in the first video.  The parties agreed that it was approximately one hour long, that it was explicit in nature and that it showed consensual sexual activity between the claimant and his adult partner.

22.	Mr Harkin left the school and went home.  He telephoned the then Chairman of the Board of Governors, Mr Patrick Durkan.  He told Mr Durkan what had happened and advised him that he felt that it would be appropriate to put the claimant on a precautionary suspension at this stage.  

23.	After consulting with Mr Durkan, Mr Harkin decided to proceed with the precautionary suspension.  His evidence to the tribunal was that he was concerned about the position that the claimant would have found himself in if he had returned to the school the next day.  

24.	Paragraph 4.2 of the disciplinary procedures for teachers in CCMS schools provides that:-

“Such suspension should only be imposed after careful consideration, is to be kept under regular review and should not be unduly protracted.  Precautionary suspension is appropriate where, for example:

	(i)	children are seriously at risk;

(ii)	the continued presence of the teacher would place him/her at risk;

(iii)	the teacher’s continued presence may impede the investigation;

(iv)	the alleged offence is of such serious nature that it may constitute gross misconduct.”

25.	Mr Harkin then telephoned the claimant at his home between 7.30 pm and 8.00 pm that evening, ie 2 February 2010.  He told the claimant that a sexually explicit video had been found on one of the school’s Apple Mac computers, that the claimant featured in that video and that pupils had watched the video.  The claimant accepted immediately that it was a video of him and his partner and that he had put the video on the laptop.  

26.	The claimant’s evidence to the tribunal and throughout the disciplinary process, was that he told Mr Harkin during his telephone conversation that he had deleted the video.  Mr Harkin’s evidence was slightly different, in that he maintained that the claimant had said that he ‘thought’ he had deleted it.  The claimant’s position in the disciplinary process and before the tribunal was that he had first deleted the video into the waste bin and had then emptied that bin, thereby in practical terms effectively deleting the video.  A great deal of time during the disciplinary process and before the tribunal was spent on this conflict of evidence.  However, to the tribunal, this appears to be an irrelevance.  It was never in dispute that the claimant had placed sexually explicit videos on the school laptop.  It was also never in dispute that he had made some attempt to delete the material.  It does not seem to be a matter of any importance whether the claimant simply placed the video in the waste bin or whether the claimant had done so and had then taken the additional step of emptying the waste bin.  The fact remains that the video was placed on a school laptop, that it was accessible to pupils, and that it had been accessed by pupils.  

27.	The claimant further suggested that because he had done everything in his power to delete the video from the laptop, it must have been retrieved by someone else, either another teacher or a pupil, using specialist knowledge, or by using specialist software.  His argument, again consistently repeated, was that the school had been at fault in failing to have the laptop forensically examined at an early stage to see how the first video and a second video, to which this decision will shortly turn, had been retrieved from the computer.  

28.	It appears to be common case that the claimant, during this telephone conversation, on the evening of 2 February 2010, told Mr Harkin that this was a ‘one-off’.  

29.	Mr Harkin told the claimant that he should not go into work on the following day,          ie 3 February 2010.  Mr Harkin told the claimant that he would be receiving a letter and sent him that letter, on 3 February 2010, putting him formally on precautionary suspension.  

30.	On the morning of 3 February 2010, Mr Harkin spoke to two pupils; the boy who had reported the first video to the substitute teacher and the boy who had been given permission to take the laptop home to complete coursework.  He was advised by both pupils that the video had been in the waste bin of the laptop from where it had been easily retrieved.  The group of 15 pupils had viewed the video at length.

31.	Later that day, the two Vice Principals spoke to all the pupils who had viewed the video.  They also contacted their parents by telephone.  During those telephone calls, the Vice Principals used the following speaking notes which had been prepared by Mr Harkin:-

“Material has been found on a school laptop of an inappropriate nature and this is a matter of grave concern.  Pupils may have accessed this during the course of the class activities.  School dealing with this incident.  School will talk to pupils and if there are any issues/concerns we will address them and put any further support in place if requested.”

Mr Harkin was absent from the school during much of Wednesday 3 February 2010, attending a pre-arranged meeting of the Education Committee in the Assembly.  When he returned to the school, he was advised by the two Vice Principals that there had been, unsurprisingly, a lot of talk in the school about the video and about the claimant.  

32.	Mr Harkin spoke to most of the school teaching staff in the staffroom on the next morning, Thursday 4 February 2010.  He advised staff that the school was dealing with a serious issue involving inappropriate material on a laptop and that a member of staff had been suspended.  He did not name the member of staff but it is unlikely that anyone present did not know to whom he was referring.  Staff expressed concern about the way in which pupils were talking about the incident and about the claimant.  Mr Harkin advised them not to be confrontational with the pupils and that it was inevitable that the pupils would talk about an incident such as this incident.  

33.	The school prepared a response to any media enquiries that it might receive.  This stated:-

“The school is aware of an internal incident and this is a matter for the school and the Board of Governors to investigate.  The school has taken appropriate action and is pursuing the matter using the school’s internal procedures.”

Nothing further was released by the Board of Governors or by Mr Harkin to the media.  The claimant, during the disciplinary process, and before the tribunal alleged that specific details of the incident had been released to the media, that this must have been done by somebody within the school’s management structure and that this action, and not his actions, had brought the school into disrepute.  He focused, in particular, on comments made by a local priest to the media.  The tribunal is not clear from the arguments presented how the extent of any comment to the media could be directly relevant to the fairness or unfairness of a dismissal.  However, for the record, the tribunal, after having listened to Mr Harkin and to Mr Durkan, the then Chairman of the Board of Governors, accepts that the only comment issued to the media by the school was that contained within the above extract.  

34.	Mr Harkin was appointed by a Sub-Committee of the Board of Governors to conduct an investigation into the incident.  The claimant was formally invited to an investigatory meeting and advised that he should avail of trade union representation.  That investigatory meeting was originally scheduled for 10 February 2010; but the claimant immediately submitted a sick line for 16 weeks.  The process was therefore delayed.  

35.	This delay caused practical difficulties for the school.  The Apple Mac laptop contained pupils’ coursework.  For obvious reasons, the laptop had been retained by Mr Harkin.  The pupils and the teachers in the Art & Design Department needed access to that coursework.  To facilitate this, Mr Harkin and Mr Keeley downloaded the coursework from the laptop onto a separate hard drive which was then made available to the Art & Design Department.  

36.	On 24 February 2010, Mr Harkin was approached by Mr Turton, a colleague of the claimant’s, who was a teacher in the Art & Design Department.  Mr Turton told Mr Harkin that a Year 14 pupil had told him that he had accessed a video (‘the second video’) in a folder which contained the coursework for a particular pupil on the separate hard drive.  It was one of the folders downloaded onto that hard drive by Mr Harkin and Mr Keeley.

37.	While Mr Turton was reporting this matter to Mr Harkin, he had left his class in the charge of a technician.  Mr Harkin went to the classroom and removed the hard drive.  He also spoke to the pupil who had reported the existence of the second video to Mr Turton.

38.	Mr Harkin and Mr Keeley examined the second video.  The second video was approximately five minutes long, was explicit in nature, and again showed the claimant engaging in consensual sexual activity; but on this occasion with a different adult female.  The second video was located in the waste bin of the file containing an individual pupil’s coursework.

39.	Mr Harkin spoke to the seven pupils who had watched the second video.  

40.	Mr Harkin then had the hard drive and the laptop examined by a specialist IT company to see if there were any further videos anywhere on these devices.  No further videos were found.  

41.	The claimant was advised by letter dated 25 February 2010 that the second video had been found.  The letter stated:-

“Further to my letter of 5th of February informing you that an investigation is underway into an allegation that you have created inappropriate material which was accessed to and accessed by students on school equipment, I am writing to inform you that a second piece of inappropriate material has been found relevant to this allegation.  Further checks are in the process of being completed and you will be informed of the outcome of this and provided with the relevant details in due course.”

42.	The CCMS and the school arranged for the claimant to be medically examined.  He was found fit to take part in the investigatory process.  The investigatory meeting took place on 21 April 2010.  

43.	The claimant was represented at the disciplinary investigatory meeting on 21 April 2010 by Ms Aileen Hogg, a NASUWT representative.  Mr Harkin chaired the meeting.  A representative from the CCMS attended.  

44.	At the investigatory meeting the claimant admitted that he had taken the Apple Mac laptop home.  He stated he had done so to do some work for the school.  However, he had personal videos at home and he decided to use the laptop to digitise a video.  He stated he “almost immediately” realised his mistake and he deleted the video.  He confirmed that he had “produced” the material on the video but stated it was that it was never his intention that the video would be accessed by pupils.  

45.	The claimant was asked why he had told Mr Harkin, during the telephone conversation on 2 February 2010, that the first video was a ‘one-off’ and that the video was a personal video made in the privacy of his home in the company of a woman with whom he was in a long-term relationship.  Mr Harkin asked the claimant why a second video showing him with a different woman was discovered and viewed by pupils at a later date.  The claimant stated that he had made a digital copy of only one video and that that video had two separate incidents on it.  He suggested that a break in filming may have created two files and that the second file was a surprise to him.

46.	The claimant stated that what was being proposed was “nothing short of mental torture” and was “totally disproportionate with the already admitted act of misuse of school equipment”.  He also objected to Mr Harkin’s role in the investigatory proceedings as he believed that Mr Harkin was acting in a dual role as both witness and investigator.  

47.	Following the investigatory meeting, Mr Harkin reached a decision and made a note of his decision.  He accepted that it had never been the claimant’s intention that the pupils or anyone else would have had access to the videos but concluded that the school had had to deal with the impact of the pupils viewing what could only be described as “a pornographic film involving their teacher”.  He stated that he was further concerned that a second pornographic film involving the same teacher was later accessed by pupils despite having been assured by the claimant that this was a ‘one-off’.  He stated that the second pornographic film had been found in another file with a different title from the first video and had involved a different woman.  He stated the school management also had to deal with media interest following this incident and that the actions of the claimant had brought the school into disrepute.  He stated that the actions of the claimant were a breach of trust and confidence, particularly given the nature of the claimant’s employment as a teacher.  He therefore recommended to the Governors that the claimant was called to a disciplinary hearing to respond to the following charge:-

“By producing pornographic material on a school laptop which was accessible to and accessed by students, Mr Crawford has seriously misused school equipment, has brought the school into serious disrepute and as a result of this the inherent trust and confidence necessary in the employment relationship has been broken.”

48.	The Governors accepted Mr Harkin’s recommendation and on 17 September 2010 a formal disciplinary letter issued to the claimant.  The formal disciplinary charge was the charge recommended by Mr Harkin.  

49.	A member of the Board of Governors, Ms Siobhan McIntyre, was appointed by the Board of Governors to chair the disciplinary panel.  She sat with two other Governors, Mr T McCully and Mr C Lamberton.  

50.	At the tribunal hearing, the claimant had challenged the appointment of Ms McIntyre on two grounds.  Firstly, he argued that between February and November 2010, she had been absent from several meetings of the Board of Governors due to illness, and that therefore her membership of the Board had automatically lapsed before her appointment as Chair of a disciplinary panel.  He argued that this invalidated the decision of the disciplinary panel.  Secondly, he argued that Ms McIntyre had been biased against him because of an incident which has occurred almost 10 years earlier.  The claimant, through his counsel, alleged to the tribunal that Ms McIntyre’s son had, some 10 years earlier, sought an extension of time to submit coursework because of ill-health and that Ms McIntyre had complained about the claimant’s attitude to her son’s request.  The tribunal carefully observed Ms McIntyre’s reaction to this second allegation.  It was clear that this was the first that she had heard of it and that her memory of the events was exactly the opposite.  She recalled the claimant being helpful and supportive of her son’s application for an extension of time.  It is perhaps noteworthy that this allegation was not raised at the time of the disciplinary hearing.  In any event, the second ground, alleging bias, was withdrawn by the claimant’s counsel, on instructions, before the end of the tribunal hearing.

51.	In relation to the first ground alleging an invalid appointment, the tribunal prefers the evidence of Ms McIntyre and the evidence of Mr Durkan to the evidence of the claimant.  Mr Durkan had been the Chairman of the Board of Governors at the relevant time.  Both he and Ms McIntyre were clear that the Board of Governors had been aware of the reason for Ms McIntyre’s absence, ie her ill-health.  The tribunal concludes that it would have been amazing if it had been otherwise.  The Board had permitted her absence in accordance with the relevant Board procedures.  This decision had not been noted formally in the minutes, which had a wide circulation with the school.  This was to protect Ms McIntyre’s right to privacy and it did not in any way invalidate her continued appointment as a member of the Board of Governors.  

52.	The disciplinary panel was provided with the notes of the investigatory meeting, the record of Mr Harkin’s decision and with relevant correspondence and policies.  No written witness statements had been taken from the various pupils or teachers who had been involved in the two incidents.  

53.	The disciplinary hearing had been considerably delayed due to the claimant’s request to be allowed legal representation.  After a lengthy discussion, the CCMS and the Board of Governors allowed the claimant to be legally represented at the disciplinary hearing and he was represented by Mr Rory Fee, Barrister-at-Law, instructed by Logan & Corry, Solicitors.  

54.	The disciplinary hearing lasted some three hours and the claimant challenged the disciplinary action on various grounds.  

55.	Firstly, he disputed that he had ‘produced’ pornographic material on the laptop.  He stated that he had used the school laptop to ‘digitise’ the material but not to ‘produce’ it.  Then he argued the school policy permitted personal use of laptops and that it did not give an exact definition of ‘personal use’.  His use of the laptop had therefore been authorised although, with hindsight, he should not have used it to digitise the videos.  He argued that he had not brought the school into disrepute but that the people who gave interviews to the media had brought the school into disrepute.  He queried why Mr Harkin had not spoken to him before 8.00 pm on 2 February 2010.  He further queried the use of the word ‘pornographic’.  He argued that the use of that term ‘coloured things’.  He argued that the letter notifying of the precautionary suspension did not contain a specific charge.  In relation to that latter point, it is difficult to understand why the claimant felt he should have been provided with a charge before the investigatory process had even commenced and where the issue to be investigated was clear to both the claimant and to the school.  The claimant argued further that Mr Harkin had said, when he briefed staff on 4 February 2010, that the pupils were blameless and that therefore Mr Harkin had already made up his mind about who was to blame.  Again the tribunal does not see what point the claimant was trying to make at this stage.  He had admitted that the two videos were his, and he had admitted that he had put them on the school laptop.  While he argued that he had deleted them, it is not clear who he suggests, other than himself, would have been to blame for the presence of the videos on the school laptop.  He also argued that Mr Harkin should have stood aside as an investigator once the second video had been found.  Again the tribunal does not follow the claimant’s reasoning in this regard.  Mr Harkin was the Principal, the claimant was a Head of Department.  There was no other more appropriate person available to conduct the investigation.  Since the existence of the videos and the content of videos was not in dispute, there was no reason for Mr Harkin to stand aside from the investigation because he had viewed both videos or because their existence had been reported to him.

56.	The claimant went on to query the way in which media had been handled, the way in which the precautionary suspension had been imposed and stated that it was the school’s fault, or could have been the school’s fault, that the two videos had been split.  He argued that the responsibility for the laptop at the time the second video was transferred to the hard drive lay with the Principal and that the second incident occurred when the claimant was not in the school.  He queried the use of the word ‘video’ rather than ‘file’ in Mr Harkin’s report.  He again argued that he did not “produce” anything.  He used the laptop to ‘digitise’ videos.  He complained that there was no specific evidence of the impact that viewing the videos had had on pupils.  

57.	Remarkably, the claimant alleged that, in relation to the second video, that the school “cannot lay the second incident at him”.  He criticised the fact that pupils had not been supervised when using the laptop on school premises.  The claimant stopped short of specifically accusing a teacher or pupil of retrieving the videos which he maintained that he had deleted by emptying the waste bin on the computer.  He stated that he “cannot say that the file was not retrieved using other software that is easy to access and can be used by someone with a level of competence in computers”.

58.	On 18 October 2010, the disciplinary panel spoke to Mr Harkin, asking him to clarify matters which had been raised by the claimant.  These included the delay in speaking to the claimant on 2 February 2010, the precautionary suspension, the use of the word ‘pornographic’, the number of pupils who viewed the first video, the staff briefing, whether written statements, from pupils and others, existed, media reports, the transferring of files to the hard drive, details of the number of pupils who viewed the second video, the security arrangements for the laptop and whether a local priest had given a TV interview.  

59.	Mr Harkin clarified those points.  His clarification was not put before the claimant for further comment.  However, having examined both the queries and the comments, there is nothing of significance that had not already been raised and commented on in full by the claimant during the course of the three hour disciplinary hearing.  While it would have been good practice for the claimant to have been afforded an opportunity to comment further, the tribunal is satisfied that no material injustice has been caused by this failure.

60.	The panel concluded that the claimant had been guilty of the conduct set out in the disciplinary charge.  He had seriously misused school equipment for the purposes of digitising videos which showed him in engaging in explicit sexual activity.  This material was then accessed by pupils.  As a result, the school authorities had to deal with the significant impact caused by the discovery of this material and the consequent unwanted media attention.  The panel concluded that the claimant’s actions constituted gross misconduct and that he should be summarily dismissed with immediate effect.  The panel took into account his previous good record and indeed a letter of support issued by some of the claimant’s colleagues in the school.

61.	Under the CCMS disciplinary procedure for teachers, the claimant had the right, which he exercised, to make representations to a panel of three Governors in relation to his dismissal.  The procedures specifically provided that this was not to be regarded as an appeal.  However, it seems clear that the representation panel could have reversed the dismissal if it had felt that such a step was appropriate.

62.	The representation panel consisted of Mr Pat Durkan, Ms Therese Ferry and Mr Peter Gallagher.  It met on 15 December 2010 to hear the claimant’s representations.  The claimant was represented by Mr Sally, Solicitor, of Logan & Corry, Solicitors.  The panel then met on two further separate occasions on 26 January 2011 and 5 February 2011 to consider the information gathered and to reach a decision.  

63.	The claimant stated to the representation panel that it was never his intention for anyone to see the videos and that he believed that he had deleted them.  He again criticised several aspects of the disciplinary procedure.  He stated that Mr Harkin when he addressed the staff on 4 February 2010 said that the pupils were not to blame and that therefore he had implied that they were innocent, implying the claimant was the culprit.  Given that the claimant had always admitted that he had made these videos and had digitised them on the school laptop in such a way that they could be accessed and were accessed by pupils, it is not clear to this tribunal what point the claimant was trying to make in this regard.  He suggested that Mr Harkin was to blame for providing the pupils with access to the second video and queried why the files had not been screened before being transferred to the hard drive.  He queried the use of the term ‘pornographic’.  He argued that the ICT policy simply required that staff should not leave personal files on computers and he had followed this policy because he had deleted the relevant videos.  He again argued that he had fully deleted the files and suggested that someone might have used particular software to retrieve the files.  He further argued, extraordinarily, that what happens in class is the responsibility of the teacher and that he was not present at the time of the two incidents when the two videos were viewed by pupils.  The claimant argued that the pupils should have been investigated and further stated that, by transferring the coursework files from the laptop to the hard drive, Mr Harkin and Mr Keeley had made the material accessible to pupils “in full knowledge that there was inappropriate material on the laptop”.  He argued that Mr Harkin and Mr Keeley had therefore carried out the same act as the claimant.  The representation panel did not accept these arguments and concluded that the summary dismissal was fair, justified and reasonable.

64.	The representation panel had gone back to Mr Harkin for further clarification of certain points and had obtained further advice from a computer expert in the University of Ulster.  Mr Harkin was asked to clarify the ICT policy, the level of supervision at the time of the second incident, the level of knowledge required to operate the laptop, how the first file and the second file had been retrieved, why he did not refer the matter to Social Services, and what he had said to staff at the briefing on 4 February 2010.  These questions and Mr Harkin’s responses did not raise any new matter of any significance.  As with the disciplinary hearing it would have been good practice for the representation panel to have invited the claimant’s further comments on Mr Harkin’s clarification and indeed on the response from the University of Ulster.  However, the tribunal is again satisfied that no material injustice has been caused by the error.

65.	The claimant appealed that decision.  That appeal was heard by an independent appeal committee appointed by the Labour Relations Agency.  The Chairman was Mr Alistair Joynes and the two panel members were Mr Gerry Laverty and Mr Brendan Harron.  The claimant was represented by two solicitors from Logan & Corry, Solicitors.  

66.	The appeal hearing lasted for three days.  The first two days dealt with three preliminary issues which had been raised by the claimant.  

67.	The first preliminary issue was whether or not the independent appeal committee should view the videos.  Following argument, the committee concluded, like the present tribunal, that there was need for it to do so.  It was not in dispute that the content of both videos was both inappropriate and sexually explicit.  Viewing the video would not have contributed to the independent appeal committee’s understanding of the details of the case against the claimant.

68.	The second preliminary issue was whether the independent appeal committee should refer the laptop for independent forensic examination.  The claimant argued that this was necessary to show that he had deleted the material and to determine how the material had been retrieved.  The Committee concluded that it was not necessary to refer the laptop for independent forensic examination.  It was not in dispute that pupils had had access to inappropriate and sexually explicit material on the laptop and the committee determined that forensic examination would not contribute to an understanding of the case.  

69.	The third preliminary issue was a range of points about process which had been raised on behalf of the claimant, including points in relation to his suspension, delay, media contact, the use of the word ‘pornographic’, the wording of the charge, the lack of statements and written records, an allegation that the disciplinary             sub-committee and the representation panel have been improperly constituted and an allegation that the disciplinary committee had failed to give the claimant an opportunity to comment on Mr Harkin’s clarification of certain points.  The Committee concluded that there had been a number of issues regarding the handling of the disciplinary process; but it did not regard these as material to the outcome of the claimant’s case.  It unanimously determined that the appeal should not be upheld.

Decision

70.	The onus of proof rests on the respondent to establish the reason for the dismissal.  If it does so, and if the reason is a potentially fair reason for the purposes of the 1996 Order, the next issue, on which the burden of proof is neutral, is whether the dismissal was fair or unfair.

71.	The tribunal is satisfied that the only reason for the dismissal of the claimant was his conduct, a potentially fair reason for the purposes of the 1996 Order.  The evidence of the respondent’s witnesses was clear and consistent on this point and there is no evidence of any other reason for the dismissal.

72.	The respondent concluded:-

“That by producing pornographic material on a school laptop which was accessible to and was accessed by students, you have seriously misused school equipment, brought the school into serious disrepute and as a result of this the inherent trust and confidence in the employment relationship has been broken.”

73.	The function of an industrial tribunal, in determining whether a dismissal was fair or unfair, is to determine whether a reasonable employer could reasonably have dismissed that employee in all the circumstances of the case.  Its function is not to decide whether it would have dismissed the employee in those circumstances; neither is it its function to conduct an over-scrupulous examination of process looking for minor or inconsequential procedural errors.

74.	The claimant, while maintaining that “my private life is my private life” accepted that he had been as a senior teacher in a faith-based school with a Catholic ethos and that, as a senior teacher, he had a responsibility to set an example to pupils.  When cross-examined, he accepted that in an application for a salary enhancement he had stated that his role as a form teacher “allows me to promote student well-being through implementing St Joseph’s Pastoral Care Programme”.  The Pastoral Care Programme stated that the school “aims to enhance the spiritual, moral, cultural, intellectual and physical development of pupils at the school”.  When asked if he agreed with that statement, the claimant initially resisted saying that he did agree.  His responses were as follows:-

“This is what that document says.  …  you are into theory not practice there.  …  That is what the definition says there.”

	- before finally agreeing.

75.	The respondent, in approaching this matter, was entitled, and indeed obliged, to consider the nature of the claimant’s employment, as a Head of Department in a school with a faith-based ethos, when determining whether the claimant had been guilty of gross misconduct and in deciding whether to dismiss him summarily.  To put it in plain terms, conduct which may not warrant the dismissal of a manager in a shop may well justify the dismissal of a senior teacher in a faith-based, or indeed any, school.  Each case of dismissal must be considered in the context in which it occurred.  The claimant’s reluctance to address the implication of the school’s Pastoral Care Programme, to which he had hitherto subscribed, illustrates that the claimant was aware that the nature of his employment and, in particular, his duties as a senior teacher, in relation to the pastoral care of pupils, had some significance in this matter.

76.	As indicated above, the claimant, throughout the investigatory and disciplinary processes and before the tribunal, attacked those processes against him on several grounds.  

77.	In the course of the tribunal hearing the claimant alleged that the investigatory and disciplinary processes were “a sham” and that the respondent had approached the matter with a closed mind from the outset.  He pointed to various factors in support of this claim:-

(a)	The claimant was immediately suspended without any investigation

It is clear that a precautionary suspension should not be implemented lightly and that it should be subject to regular review.  On 2 February 2010, Mr Harkin had viewed the first video together with Mr Keeley.  There was no doubt in their minds that the claimant featured in that video and equally no doubt in their minds that the video was sexually explicit.  It was equally beyond argument that pupils had accessed that video on a school laptop.   When Mr Harkin telephoned the claimant later that evening, the claimant did not dispute any of those facts.  At that stage, it would have been clear to anyone, and it certainly was clear to Mr Harkin, that this was a serious matter involving potential gross misconduct.  It was equally clear to Mr Harkin, as he stated in evidence to this tribunal, that the claimant’s position as a teacher within the school, once discussion of that video became commonplace, would have been extremely difficult (see Paragraph 4.2(ii) and (iv) of the disciplinary procedure).  The tribunal cannot see any basis for an argument that the school was wrong to impose a precautionary suspension when it did.  No further investigation was reasonably required before that step was taken.  It is clear that there were no formal regular reviews of the suspension.  It is, however, equally clear that nothing of substance had changed in the period between the implementation of the suspension and the claimant’s eventual dismissal.  While it would have been better if there had been regular and formal reviews of the continuation of the suspension, such a process would have been formulaic and, in practical terms, a waste of time.  The absence of such regular reviews cannot be regarded as anything other than a minor and technical error with no impact on the overall fairness of the disciplinary process.  

		(b)	The staff briefing on Thursday 4 February 2010

The claimant alleged that Mr Harkin had failed to provide the claimant’s accounts of events to his colleagues and that he had failed to approach the matter fairly in the course of this briefing.  He had “prejudged the claimant’s guilt” and had indicated that the pupils were not at fault.  It was difficult for the tribunal to understand what the claimant was suggesting here.  If Mr Harkin had breached the claimant’s confidentiality by formally naming and by then telling his assembled colleagues the content of the telephone conversation on 2 February 2010, the claimant may well have a valid complaint, although not one of unfair dismissal.  Furthermore, the tribunal accepts the only direct evidence which it has of heard what occurred during that staff briefing, ie the evidence from Mr Harkin, which was to the effect that he had advised the claimant’s colleagues not to be confrontational with the pupils if they came across them discussing the incident.  He had stressed that it was natural, and indeed inevitable, for pupils in those circumstances to discuss the incident.  The claimant, at the disciplinary interview, criticised what Mr Harkin had told his colleagues; and stated that he had made a determination that all the pupils involved were innocent.  Although the claimant has never said so in terms before this tribunal, it almost seems that he was suggesting that the pupils, or some of the pupils, were in some way to blame for watching the video which he had put on the school laptop and that this in some way impacted on his responsibilities in the matter.  

The staff briefing does not appear to the tribunal to be evidence of a sham or flawed process, or to contain any material unfairness.  

		(c)	The lack of any witness statements

An employer, in these circumstances, or in any circumstances involving alleged misconduct, is not obliged to conduct a formal investigation to the standard normally expected of a professional police force.  This was clearly an incident which required a degree of sensitivity.  Mr Harkin stated in evidence, and the tribunal accepts, that he was reluctant to ask the pupils who had watched either the first or second video to detail in writing, in a formal written statement, what they had seen.  He was concerned about the potential impact on the pupils.  The tribunal accepts that that was a legitimate concern.  Furthermore, this was a situation in which there was no significant dispute of fact.  It was clear from the outset that the claimant featured in the first and then, when it emerged, the second video.  It was also clear from the outset that the videos had been placed by the claimant on the school laptop and that the pupils had been able to access both those videos on that school laptop or on the hard drive containing material extracted from that school laptop.  Mr Harkin had been told by two pupils who had watched the first video that the video had been retrieved from the waste bin on the laptop.  In respect of the second video, he was told that it had been found in the waste bin attached to a coursework file.  Formal witness statements would have added nothing to the process and were unnecessary.  

(d)	Alleged conflicts of interest on the part of Ms McIntyre who chaired the disciplinary process

As indicated above, although Ms McIntyre was cross-examined on this point, the allegation of a conflict of interest was promptly withdrawn.

		(e)	The composition of the disciplinary committee

As indicated above, the tribunal has accepted that Ms McIntyre was at all times a member, in good standing, of the Board of Governors.  There are no grounds for a claim that she was not entitled to chair the disciplinary committee or that in any way the disciplinary panel was improperly constituted.

		(f)	Mr Harkin’s alleged dual role as witness and investigator

The tribunal can see no merit in this argument.  The claimant alleges that because Mr Harkin became aware of the second video and had watched the second video, he was thereby excluded from continuing with the investigation process.  Mr Harkin, however, had no direct evidence to give in relation to the claimant’s conduct.  There was no dispute, as has been said several times in the course of this decision, that the claimant featured in both videos, that both videos were sexually explicit and that both videos were accessed by pupils on a school laptop or on a hard drive onto which files had been transferred from that laptop.  

		(g)	The note taking was inconsistent and flawed

Employers are not obliged to provide verbatim notes of interviews or to act in any way in a manner that would be expected of a professional police force.  They are required simply to conduct a reasonable investigation judged against an objective standard.  Similarly, for the disciplinary process, there are no hard and fast rules.  

The tribunal can see no significant error or material unfairness in the note-taking or in the written records of the disciplinary process

(h)	The disciplinary panel and indeed the representation panel clarified certain issues with Mr Harkin but failed to go back to the claimant to seek his comments on those clarifications

	In each case the matters on which clarification was sought were matters which had been raised by the claimant himself.  While it would have been better if the claimant had been afforded a formal opportunity to comment further, it is clear, given the nature of the clarification sought and the responses received, that no practical benefit would been afforded to the claimant if such an exercise had taken place.  While this was a regrettable error on the part of the respondent, it cannot be taken on its own, or in combination of other matters, to have affected the fairness of the dismissal.  

(i)	The respondent had failed to conduct a proper forensic examination of the laptop

	The claimant, throughout the process, maintained that he had deleted the two videos and that he did not understand how the videos had been retrieved or how they had been separated.  He suggested, but did not go so far as to state in plain terms, to this tribunal, that someone else, a pupil or a teacher, had in some way retrieved a completely deleted file, possibly by using specialist software.  He alleged that if the laptop had been properly examined that could have been ascertained before the relevant space on the hard drive had been overwritten.  The tribunal again points out that this is a misconduct allegation against a teacher.  It was not an episode of ‘CSI’.  Employers are not required to go to extraordinary lengths, particularly where there was, and the tribunal repeats this yet again, no dispute that the claimant featured in two sexually explicit videos which he placed on the school laptop which pupils then were able to and did access during school hours.  The claimant knew that pupils would have access to that laptop and he knew that pupils would take that laptop home on regular occasions.

	A forensic examination of the laptop would not have altered the substance of the disciplinary charge.  The claimant was not charged with incomplete or inadequate deletion of a file.  The essence of the charge was that he placed the videos on the laptop and that those videos were accessible to and were accessed by pupils.  

	The respondent accepted from the start of the disciplinary process that the claimant had attempted to delete the videos.  Given that they were accessed by pupils, it would have been obvious to any reasonable employer that any such attempt had been unsuccessful.

	The claimant in his written submissions, after the tribunal hearing, argued that he had been denied the opportunity to prove that he had emptied the wastepaper bin on the laptop and that therefore someone else had used specialist software or knowledge to retrieve the videos.  He argued that he had been denied the opportunity to establish a significant mitigating factor.

	The tribunal’s view is that a reasonable employer could not have regarded that (if true) as a significant mitigating factor or a mitigating factor in any sense.  This was not a situation where, as the claimant suggested, he had been entitled to put the sexually explicit videos on the school laptop, provided only that he then deleted those videos.  No reasonable person could argue that that was the position.  

	In any event, an employer, in investigating a misconduct charge, is obliged to conduct a reasonable investigation judged against an objective standard – Sainsbury’s Supermarket v  Hitt [2003] ICR111.  The representation panel did seek an opinion on the possibility of a forensic examination but the advice they received from the University of Ulster was that time was of the essence in such an examination.  If the videos had been deleted properly [as the claimant argued they had been] the space freed up was available to be overwritten.  An examination could still be attempted if that had happened but the disk could be destroyed in the process.

	The failure to conduct or commission a forensic examination of the laptop cannot be considered to be a significant error.  Again, the disciplinary charge was not that he had failed to properly delete the videos.  It was , in essence, that he had placed those videos on the school laptop in the first place, whether or not he had then attempted to delete them.

(j)	Media reports

	The claimant alleged that he had not brought the school into disrepute.  That had been done by whoever had been briefing the media with details of the incident.  In a situation of this sort where videos of a sexually explicit nature involving a senior teacher were watched by a number of pupils in a large school, it was inevitable that details of the incident would leak out to the media.  Each of the pupils who had observed those videos had friends and family and word would have spread very quickly.  The tribunal, as indicated above, has accepted that the school released only a formal and brief media statement which did not name the claimant and did not contain any significant details.  Furthermore, even if there had been a more detailed media briefing by the school, that would not have impacted on the issue before the tribunal, ie whether or not the dismissal was fair or unfair for the purposes of the 1996 Order.  A reasonable employer was entitled to conclude that the author of this entire incident, and of the consequent damage to the reputation of the school, was the claimant.  

(k)	Under cross-examination the claimant refused to accept responsibility for the fact that 22 pupils had viewed these videos.  According to the claimant, that had occurred because of ‘lack of supervision of pupils’.  He also maintained in cross-examination, as he had maintained during the disciplinary process that ‘I was operating within policy – and then I deleted it.  With hindsight, it was inappropriate’.  A reasonable employer was entitled to reject those arguments and to conclude that the claimant had been guilty of misconduct as set out in the disciplinary charge. 

(l)	The sanction

	The claimant argued that the sanction of summary dismissal was inappropriate in the circumstances.  

	The tribunal does not agree.  It seems clear to the tribunal that conduct of this nature, without rehearsing the specifics yet again, was one which a reasonable employer in these circumstances was entitled to regard as gross misconduct and that such an employer was entitled to impose the penalty of summary dismissal.  The legal test is whether, judged against an objective standard, a reasonable employer could reasonably have dismissed the claimant, in all the circumstances of the case.  A school employing senior teachers in a faith-based environment is entitled to expect that, at the very least, those teachers should not place sexually explicit videos on a school laptop when they know that laptop will then be made available to pupils.  It was not in dispute, at any stage, that the claimant had made some attempt to delete the videos from the laptop.  However, the point is that they should never have been placed on the school laptop in the first place, even if an attempt had been to delete them afterwards.  This is all the more clear when it is considered that the claimant was competent in computers, had taught a GNVQ course in computers and was well aware that files, once placed on a computer, could be retrieved, particularly if simply left in the waste basket.  

78.	Regulation 5 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 provides that an appeal procedure is appropriate for the purposes of the statutory dismissal procedures if “it operates by virtue of a collective agreement made between two or more employers or an employer’s association and one or more independent trade unions”.

	The tribunal is therefore satisfied that the independent appeal stage complied with Part 3 of Schedule 1 to the Employment (Northern Ireland) Order 2003.

79.	The claimant has, as detailed above, sought to criticise various parts of the investigation, disciplinary and appeal processes.  Some errors have been identified.  It would clearly have been better if the disciplinary panel and the representation panel had gone back to the claimant to seek his specific comments on the clarification it had received from Mr Harkin.  It is also correct that employers should be particularly careful to ensure a fair procedure where the outcome of that procedure may, as in this case, have a significant effect on the employee’s               long-term career prospects.

80.	However, it is not the case that a dismissal, even where it has a long-term adverse effect on the employee’s career, must be found to be unfair simply because procedural errors have been identified.  The tribunal’s task is to assess both the procedural issues together with the issue of substantive fairness (see Taylor above) and then to decide whether, in all the circumstances of the case, the decision was fair or unfair.

81.	The tribunal is satisfied that the procedural errors identified in this case were not significant and had no impact on the fairness of the dismissal.  The tribunal is satisfied that, in all the circumstances of this case, the decision to summarily dismiss the claimant was a decision which a reasonable employer was reasonably entitled to make.  The claim of unfair dismissal is therefore dismissed.

Vice President:

Date and place of hearing:	28 – 30 May 2012, Belfast

Date decision recorded in register and issued to parties: