Appeal No.	 EAT/506/89

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 May 1991
	Judgment delivered on 16 June 1991

Before
THE HONOURABLE MR JUSTICE WOOD MC (P)

MR R H PHIPPS

MRS P TURNER OBE

NOTTINGHAM COUNTY COUNCIL	APPELLANT

MR C PEET	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr C P McKay MA
County Solicitor
Nottinghamshire County Council
County Hall
West Bridgford
Nottingham
NG2 7QP	
For the Respondents	MISS A HAMPTON
(Of Counsel)
Messrs J H Lawrence & Co
Solicitors
6 Lombard Street
Beaumond Cross
Newark
Notts
NG24 1XD	

	MR JUSTICE WOOD (PRESIDENT)    Nottinghamshire County Council appeal against a majority decision of an Industrial Tribunal sitting at Nottingham on 29th June 1989 that Mr Peet, the Applicant before it, had been unfairly dismissed.  He was at that time a married man aged 50 with three daughters.  From February 1975 he had been employed by the County Council as assistant groundsman at the Minster School at Southwell in Nottinghamshire.  On 3rd October 1988 he was given 12 weeks' notice of dismissal to terminate on 25th December of that year.  He therefore at the time had some 13 years employment behind him.

	Some six weeks before the hearing date of 29th June the County Council had applied for an adjournment on the basis that their most important witness was on leave on that date.  This was refused.  It followed therefore that Mr Wilson, the Principal Education Officer, who was ultimately responsible for the decision to dismiss did not give evidence before the Tribunal, a written statement was tendered and accepted but was not necessarily acceptable to Mr Lawrence, the solicitor, appearing for Mr Peet.

	On 14th May 1988 the Applicant's fourteen-and-a-half year old daughter who was a pupil at the Minster School made a complaint to the Deputy Head Teacher.  As a result of a report made to the Authorities, the Applicant was arrested by police on 20th May and charged with indecent assault.

	On 24th May he was visited by Mr Dines, the Acting Playing Fields Officer, to whom he explained that he had appeared in court on the previous day pleading guilty and was released on bail.  The Applicant was suspended on full pay pending a disciplinary hearing.

	On 22nd June Mr Peet attended a disciplinary hearing accompanied by his Trade Union representative, a Mr Moore.  At that hearing Mr Peet said that he had been advised by his solicitor to plead not guilty.  In view of the change of plea and also the uncertainty of the nature of the allegations the disciplinary hearing under the chairmanship of Mr Wilson was postponed until after the next court hearing which was due to take place on 4th July.

	On 5th September Mr Peet appeared before the Newark Magistrates and this hearing was attended by Mr Taylor from the County Solicitor's office, who submitted a report.

	It appeared from that report that there had been two charges against Mr Peet, one of indecent assault against his daughter and the other of a charge of incitement to commit gross indecency.  The prosecution offered no evidence in respect of that second charge and Mr Peet changed his plea on the charge of indecent assault against this daughter.  He, however, asked that two further offences of indecent conduct against two other elder daughters be taken into consideration with the admitted offence of indecent assault.  The prosecution did not disclose details of the offences which were admitted but it was stated in court that they were of a serious nature.  Mr Peet was remanded on bail for reports and the case adjourned to 7th October.  Mr Taylor noted in his report "The only matter remaining to complete the case is that of Mr Peet's sentence and, unless I am required to do so, I do not propose to attend the adjourned hearing to note the sentence.  Should you deem it necessary, a certificate of conviction can be requested from the Court to prove the conviction."  He was not asked to attend that hearing.

	By letter of 20th September Mr Wilson told the Applicant, and sent a copy to his Trade Union representative, that the disciplinary hearing would be resumed on 3rd October.  This letter was handed by Mr Peet to his solicitors who asked for an adjournment until after the hearing on 7th October.  In his reply of 29th September Mr Wilson refused to adjourn the matter and expressed the view that the sentence to be given was not directly relevant to the issues on the disciplinary hearing.  It is however to be noted that in giving his view of the history of the matter to date he said this in the second paragraph -
		"Mr Peet is currently suspended on full pay from his post as a groundsman within the Education Playing Field Service.  He has already attended a disciplinary hearing on 22nd June which was adjourned when Mr Peet informed the hearing that he would be pleading not guilty to the charges against him.  I understand that, in the event, Mr Peet pleaded guilty to two charges of indecent conduct and one of indecent assault.  You will appreciate the seriousness of these charges when viewed against a substantial and largely unsupervised access Mr Peet has to children within one of the Authority's schools."

	Therefore the disciplinary hearing was resumed and a note was taken.  The Industrial Tribunal deal with what occurred at that hearing as follows -

		"12 ... The applicant was asked why he had changed his plea and he stated that he had admitted the indecent assault to prevent his daughter from having to attend court.  He gave his version of the facts stating that he had cuddled his daughter, but he had not touched his daughter's body and no article of clothing had been removed.  He further stated that during his 12 years in post, he had not interfered with children.  Mr Wilson observed that the court had viewed the offences to be of a serious nature.  His concern was risk to school children, with whom the application would have contact in the course of his employment as a groundsman.

		 13    Mr Martindale enquired about the possibility of alternative work where the applicant would not be working in proximity with children.  Mr Dines, who was present at the meeting and is himself an experienced magistrate, was uneasy about making a decision on what to do without further information.  A telephone call was thereupon made to a social worker concerned with the case who was not prepared to give any information except to say that the offence was of a serious nature.

		14    The applicant was told thereafter at the meeting, without further enquiry, that he was to be dismissed.  He was told that an attempt was to be made to seek redeployment in the Highways Department, but without any guarantee of this being successful.  The applicant was advised of his right of appeal."

	On that same day, 3rd October 1988, Mr Wilson wrote the letter of dismissal giving 12 weeks' notice expiring on 25th December 1988 and telling Mr Peet that he would not be required to attend work during the period of notice.  The grounds of the decision are expressed in the third paragraph which reads -

		"The grounds of the termination of your employment are related to your conduct in that your admission of indecent assault against your daughter and the two other admitted offences of indecent conduct means that I can no longer continue your appointment with the County Playing Fields service where there is substantial access to children."
Mr Peet was also told of his right of appeal.  He did not exercise that right.

	By his Originating Application Mr Peet claimed re-engagement and the two bases of his complaint appear to be first, that it was stated at the disciplinary hearing that alternative work would be found within the County Council and secondly, that he did not accept that his dismissal on the grounds stated was fair because at no time had there been any complaint about his conduct whilst working and that fact had been confirmed by a reference provided by the Headmaster of the Minster School.

	The dismissal was conceded and it was therefore for the County Council to prove on the BURCHELL test that they believed that Mr Peet had committed the acts of indecency with his three daughters and that they had reasonable grounds for so believing after reasonable investigation as necessary.

	Thereafter the issue of reasonableness under S.57(3) of the 1978 Act fell to be considered by the Tribunal and in particular in the present case there was the issue of the assessment of the risk involved and the decision whether or not Mr Peet could be allowed to continue in his current appointment at the School; lastly, whether the situation was such that he could not be employed within the wider sphere of the County Council's activities.  Since the hearing before the Industrial Tribunal a decision in BRITISH GAS PLC v. PAUL FRANCIS McCARRICK has been heard before the Court of Appeal on Wednesday 20 February 1991.  Although she submits that the facts of that case can be distinguished, Miss Hampton concedes that on the facts of the present case the County Council were entitled to reach a belief on reasonable grounds that Mr Peet had committed these offences.

	It has not been easy to discern from the reasons that part which refers to the BURCHELL issue.  It seems to us to have been common ground at the Bar that the relevant paragraph was paragraph 25 which reads:-

		"25    The decision to dismiss the applicant was made more than four months after the applicant had first been charged but four days before his appearance for sentence at which it was known that a social enquiry report would be produced in court.  Mr Wilson knew no more of the fact of the case than what he was told by the applicant.  It has not been possible to question Mr Wilson about the considerations which led to his decision to dismiss.  The probability is that he had made up his mind to dismiss some time well in advance of the final disciplinary hearing."

	It seems to us that the Tribunal is taking the view there that the County Council were not entitled to hold that reasonable belief but if that was their view then it is now conceded that it was an error and in the light of the more recent decision the County Council were so entitled.

	There next follows the issue of the assessment of the risk before the decision to dismiss can be made.  It seems that the Tribunal dealt with this in part of paragraphs 26 and 29 of the Decision.  Paragraph 26 opens with the words, "Any case of indecency can be regarded as serious and it is not surprising that the social worker on the telephone described the applicant's offence as serious."  Thereafter the remainder of paragraph 26 deals with the comments on the evidence of Mr Dines, the Acting Playing Fields Officer.

	Paragraph 29 reads as follows -

		"There is no indication by Mr Wilson in his written statement that he sought any advice from any medical or other specialised source on the extent of any risk.  The applicant, unlike a teacher, had no influence over or responsibility for the welfare of children.  His contact with them in the course of his duties at the school was no more than casual.  It is at least open to doubt whether his admitted behaviour towards his own daughters is indicative of a risk of similar behaviour towards other children."

	The facts known to the County Council were those which had been set out in the earlier part of this judgment about which there is really no dispute.  Mr Sneath for the County Council emphasised that there had been a change of plea: that the more serious charge had not been pursued but that the admissions covered three daughters: that Mr Peet's explanation at the disciplinary hearing did not amount to an indecent assault and was therefore suspect and that the offences had been described as serious, not only at the magistrates court, but by the social worker when telephoned and asked about the matter.  He also emphasised the situation that only the County Council could know the details of the duties involved, the likelihood of contact with the girls and the likely reaction from parents and others.

	Miss Hampton supported the criticisms made by the Industrial Tribunal and suggested that if the reference from the Headmaster had been examined and if the social enquiry report had been examined and possibly the statements to the police had been examined then there might have been some mitigation of the seriousness of the offence.  It seems to us that whilst that might be relevant to the sentence imposed, nevertheless, so far as assessing the risk is concerned, the County Council had before them sufficient upon which to reach its assessment.

	The industrial members sitting with me take the view that no other course was open to the County Council than to take the view that Mr Peet could not continue in his employment as an assistant groundsman at the Girls' School and that in the circumstances no criticism could properly be brought against them.  Whilst I am content to join them in that view I also take the view that the Industrial Tribunal in the present case erred in law in that it substituted its own view for the view of the employer and the industrial members join me in accepting that the Tribunal did so.

	There remains however the question of the final decision to dismiss.  It seems to us that the decision to dismiss in circumstances similar to the present is capable of being understood in two different ways, and the importance of the distinction between the two was emphasised by a division of this Court presided over by Mr Justice Knox on 25th October 1990 in the POST OFFICE v. RILEY.

	The first decision is whether the employee as a result of his conduct cannot be maintained in the particular appointment which he holds at the time - here as an assistant groundsman at the Girls' School - or whether he is, thereby, rendered wholly unemployable within the whole entity, the County Council with all its responsibilities.  In the present case it seems to us that the decision reached at the disciplinary hearing was that Mr Peet could not possibly be allowed to continue in his appointment as an assistant groundsman and as we have indicated this, in our judgment, was capable of being a perfectly reasonable decision.  Whether it was or not is of course a matter for an Industrial Tribunal, not for us.  However, thereafter the question arose whether there was any alternative employment to which he could be appointed.  In the present case the suggestion had been made by the Mr Martindale, the Trade Union representative, that he might be employed in some manual capacity.   As we understand the situation Mr Peet was only really capable of semi-skilled work and could not drive.

	This aspect of the case is covered by paragraphs 30 - 32 of the Decision which read -   
		"30   It is the finding of the majority of the Tribunal that Mr Wilson did not investigate the circumstances sufficiently before his decision to dismiss.  No consideration was given prior to the announcement of the dismissal to the question raised by Mr Martindale of whether the applicant might be found other work where he would not be in proximity with children.  Subsequent to the 3 October, Mr Dring appears to have had a conversation with a representative of the Transportation Department which produced a response that based on the applicant's sickness record that Department would not be prepared to consider him for a post as a road worker.

		 31   The applicant's sickness record shows that between August 1978 and July 1979 and again between November 1986 and September 1987 he had extensive absence from work due to leg ulcer.  He told the Tribunal that his leg ulcer does not now trouble him.  He had a total of about six weeks absence in 1984 and 1985 on account of pain in his neck or back.  The applicant was not afforded any interview with the Transportation Department.  There had been no suggestion that he was unsuitable for employment as a groundsman.  There was no medical consideration of why his sickness record which did not disqualify him from being a groundsman should make him unfit to work as a road man.

		 32   It is impossible to support the passage in the final paragraph of Mr Wilson's statement that:-

		  "Every effort was made to arrange other work for Mr Peet." 

	The criticism that this exercise of investigation should have been carried out prior to the decision to dismiss seems rather severe.  This is a finding of fact with which this Court cannot interfere.  However, the industrial members with their wide experience in industry would make the following comments in seeking to be of assistance to those faced with this situation in the future:-
	1.  They have considered the letter of 3rd October 1988  and in particular the last paragraph which reads -
		
		"Finally, as detailed to you at the meeting, Mr Dring of the County Personnel Division will attempt to seek redeployment for you with the Highways Division of the Planning and Transportation Department, but this cannot, of course, be guaranteed."

	and take the view that the decision to dismiss on that occasion was a decision that Mr Peet could no longer be employed as an assistant groundsman.

	2.  That it was only after investigation and failure to find a solution that the decision would ultimately be that his employment could not be renewed in a different capacity.

	3.  That it is for both parties to discuss in some detail precisely what proposals are put forward in situations like this and not for the matter to be allowed to remain somewhat vague and in the air, with possible misunderstanding on both sides.

	4.  That a reasonable approach in most cases would be to the Personnel Department, who could look to see whether any vacancies had occurred or were likely to occur within a reasonably short time.

	5.  That no employer could be expected to make special provisions for an employee in this situation.

	From the arguments and issues considered above it follows that the view taken by this Court is that the Industrial Tribunal, as was conceded by Miss Hampton, erred on the BURCHELL issue and that the County Council were entitled reasonably to believe that Mr Peet had been guilty of these offences in the circumstances which existed.  Secondly, that the Industrial Tribunal erred in substituting its own view for the opinion of the County Council in assessing the risk involved.  Thirdly, that the Industrial Tribunal found as a fact that there had been no reasonable investigation of possible alternative employments for Mr Peet although no others were suggested in the decision.  Of these three parts, the first two disclose errors of law.

	What course should this Court take in those circumstances?  It seems to us that if there have been errors of law and unless we are satisfied that the Tribunal would undoubtedly have reached the decision which it did if it had been correct in its application of the law, the matter should be remitted for a rehearing.  That is the decision which we have reached in the present case.  We feel that the earlier findings of the Tribunal may well have coloured their view on the search for alternative employment.