Appeal No.	 EAT/372/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 July 1997

Before
HIS HONOUR JUDGE J HULL QC
MRS P TURNER OBE
MRS J M MATTHIAS

MRS A HIGHAM	APPELLANT

THE GOVERNING BODY OF ST MARY’S 	RESPONDENT
RC HIGH SCHOOL

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS S MOOR
(Employment Law Appeal
 Advice Scheme)	

	JUDGE HULL QC:  This is an appeal brought to us by Mrs Angela Higham, a lady who has been a Finance Officer, against a decision of the Industrial Tribunal sitting under the Chairmanship of Mr Russell with two Industrial Members at Manchester on 27, 28 and 29 November 1996.  The Respondents were her former employers, the Governing Body of St. Mary’s Roman Catholic High School in Manchester.  

Mrs Higham was first employed on 23 November 1992.  She was the Finance Officer at the School.  Her appointment no doubt was very much connected with the change in responsibilities and budget-holding that took place in 1993 and earlier.  Mrs Higham was concerned with the introduction of something called the School Information Management System (SIMS).  It is something which was introduced with the assistance of the local authority, Wigan Metropolitan Borough Council.  The local authority was promoting it and it was generally accepted that it was to be introduced.  Evidently it was not without teething troubles as we understand very often happens with new computer systems.  

	What happened was, according to Mrs Higham, that there were various difficulties with it and there is no doubt that as a result of those, matters fell behind, in particular apparently VAT Returns were not made on time and other types of accounting activity did not take place in the way that they should have.  We do not have to go into all that.  

	There came a time when the School was dissatisfied.  The Headmaster reported certain matters to the Governors’ Finance Committee.  The Tribunal said:
“The alleged shortcomings of the applicant during 1995 are comprehensively set out in the long and detailed written statement of Mr Bell which was read to the Tribunal.  The allegations, and the evidence upon which the allegations were based, need not be repeated at length in this decision.  What is clear is that at a meeting of the Governors’ Finance Committee on 13 November 1995, Mr Bell had to report to the committee that the applicant had failed to produce a factual report on the implementation of SIMS in the manner that had been requested.  Mr Bell also reported that the school’s VAT returns had still not been completed by the applicant, with the result that a substantial amount of money was outstanding to the school.
The Governors’ Finance Committee requested that the local authority should prepare a report on its behalf.  Such a report was prepared by Mr Carriline, the Assistant Director of Education, and Mrs Aspinall, the Head of Financial Services.  Their report was presented to Mr Bell on 1 December 1995 and it highlighted serious shortcomings on the part of the applicant.  Because of their findings, Mr Carriline advised Mr Bell that he should consider suspending the applicant.
Mr Bell had a meeting with the applicant on 1 December 1995.  At the conclusion of this meeting Mr Bell suspended the applicant......
The applicant’s suspension was confirmed by a letter of 5 December 1995, [and they refer to it] .....  This letter clearly sets out the allegations that were being made against the applicant.  The allegations were:-
(i)	that you have been negligent in the manner you have maintained financial records;
(ii)	that you failed to seek support if and when required to enable you to maintain financial systems in accordance with the requirements of the local authority;
(iii) that you have occasioned a financial loss to the school in respect of the loss of interest at the bank;
(iv)	that you have misled your line manager and senior staff at the school;
(v)	that the combination of these factors has led to a breakdown in trust between employer and employee.”

	There was a prolonged investigation conducted by Mr Bell the Headmaster and by a Mrs Harasymiw.  Then there was a disciplinary hearing which arose out of it in March 1996.  In other words these steps had taken something like three months.  The Tribunal say that the disciplinary hearing began at 9.40 a.m. and went on until 10.00 p.m.  They say that Mrs Higham wanted it to continue although it was 10.00 p.m. and eventually it was concluded at 11.40 p.m.  They say the Governors then adjourned and reached their decision about a week later on 2 April.

	To show the number of complaints which Mrs Higham has made and the quality of some of them, she objected to their adjourning and said they could not possibly remember what they had heard in the absence of taking minutes.  The Governors did evidently think they could remember very well what they had heard and they concluded that she should be summarily dismissed for gross misconduct.  The Tribunal deal with various complaints about that.
	The Tribunal then refer to the allegations made against a Mrs Clegg in the course of the case.  Mrs Clegg was Chairman of the disciplinary committee and a Governor.  They say it is a common feature of this case that the Applicant is prepared to make very serious allegations against individuals, which she is unwilling or unable to support with any proper evidence.  The Applicant was dismissed.  She appealed.  The appeal was not just a review of the matter, it was a re-hearing held on 22 and 23 August 1996.  The appeal was chaired by Father Hughes (who was one of the Governors) sitting with two other Governors and they spent two days on it.  Again, to show the approach to this matter by this lady, she attended and objected when she learned that they were not merely going to review the decision but to hold a re-hearing.  The Governors and Father Hughes were determined to go into the whole matter and hear it all again.  She read them a statement but then apparently walked out and did not assist them further.  She refused, say the Tribunal, to take part in a re-hearing of the case.  The Governors, having conducted as best they could a complete re-hearing, reached the same conclusion that she had been guilty of gross misconduct, that she had misled the Headmaster; and they dismissed her appeal.

	In the meantime, quite properly, whilst awaiting the appeal she had presented her application to the Industrial Tribunal, and again we of course must not go into the facts, we are not a tribunal of fact.  She complained of both unfair dismissal and wrongful dismissal and she said:
“My dealings have always been scrupulously honest, and my dismissal is purely to protect [prevent] disclosure of the financial dealings of the Headmaster prior to a visit from the Office for Standards in Education.
In no way can any behaviour of mine be construed as gross misconduct.”

In other words, her dismissal was not made in good faith at all.  It was meant to prevent certain matters which the Headmaster been guilty of coming out, and she had been guilty of no misconduct at all.  Of course so far as the School was concerned and the Governors of the School, what was of particular importance was the other side of the case, namely that she herself had been dishonest, not that she had merely found difficulties with the system but that she had actually repeatedly misled the Headmaster, and as the case came before the Tribunal, not surprisingly, that was the matter on which the Tribunal thought it right to concentrate.  

	Mrs Higham was represented by Mr McCann who is a computer expert.  Mr McCann had not heeded repeated suggestions by the Tribunal that he must concentrate not on technical issues, (they were not, of course, computer experts themselves at the Tribunal), but should look at these questions of honesty and dishonesty, because that was what the case depended upon.  So she was not able to help them there and indeed there are indications, and we say no more than this, that at certain times the Tribunal became somewhat irritated and upset by the way the case was being conducted.  They should not have.  But it is human nature, if one wants to get to the bottom of something and is being prevented from doing so, and feels that one is not being helped by those appearing in front of one, to feel some irritation. 

	We are unable to find any suggestion - indeed it is not suggested today - that this Tribunal became so ill-tempered, or anything of that sort, that it misconducted itself, but there are certain indications of impatience at certain stages.  The Tribunal did go into it.  They heard evidence for the Respondents.  They heard Mr Bell who made a long statement.  They heard Mrs Harasymiw the Personnel Officer, Mrs Clegg the Chairman of the disciplinary committee and Father Austin Hughes, the Chairman of the appeal committee.  They found, they say “all four of these witnesses to be entirely honest and reliable.”  That was an essential finding, because of course the Applicant was suggesting that Mr Bell, at any rate, was not being honest.
	Then they say they were requested to read statements including those of a Mrs Cummings and a Mrs Sharkey:
“3 .... We read these statements as requested and we had regard to the contents thereof.  However, we have given less weight to the evidence contained in these statements than the evidence given by the live witnesses.”

They were certainly entitled to take that view.  They continue:
“We also heard evidence from the applicant.  We did not find her to be either a truthful or reliable witness.”

They gave an example of a question which they said they had asked and which she had answered, which showed her to be, as they said:
“3.  ....fully prepared to be economical with the truth and .... a person who did not find this to be morally reprehensible.  We also read a statement prepared by Mr Seddon, a computer consultant.  We derived little, if any, benefit from reading his statement.  Wherever a relevant conflict occurred between the evidence given on behalf of the respondents and that given by and on behalf of the applicant we unhesitatingly preferred the former to the latter.”  (In other words, they preferred the School’s evidence to that of the Applicant.)

	That is criticised.  It is said, by Ms Moor, to whom we are extremely grateful for doing her very best at short notice to represent Mrs Higham, and who has said all that could be said on behalf of Mrs Higham, that there the Tribunal are going too far. They should have paid more attention to Mr Seddon’s evidence and to the technical side of it.  As Ms Moor says there were undoubtedly matters of technicality involved in this case and here were the Tribunal going absolutely straight to the question of the respective credit of the parties.  We think the Tribunal were entitled to do that and are not to be criticised as a matter of law.

	They went on to refer to Mr McCann’s advocacy and his attempted demonstration that the system was flawed, and they say what is of far greater importance is the dishonest manner in which the Applicant attempted to deflect any criticism of her use of or failure to use the system.  Moreover the allegations which were levelled against her and found to be proved were clearly not limited to her use of or failure to use the system, but were far more serious and wide-ranging.  The alleged shortcomings of the Applicant during 1995 are comprehensively set out in the long and detailed written statement of Mr Bell, which they say they have read; and Mr Bell was there.

	Ms Moor says to us “what were these allegations about?  Where are the particulars of them?”.  This was a charge of fraud and she says these matters are not being made plain.  The Tribunal is not bound to set out all the evidence which it has heard.  They were saying that they  preferred the evidence of the Headmaster and the other witnesses called by the Respondents and they were saying that what they were concerned with was the dishonest manner in which the Applicant had attempted to deflect any criticism of her use or failure to use the system.  

	They then set out the history of the matter further.  They set out the charges which had been made against her and they record that she declined to attend an investigatory interview.  They set out all sorts of matters, and refer to the disciplinary hearing, and they go on to consider their findings.  This is a very long and careful decision by the Tribunal.  They say:
“6.  Having regard to the evidence in this case, we have no doubt that the reason for the applicant’s dismissal was that the disciplinary committee, and indeed the appeal committee, found the five allegations set out in the letter of 5 December 1996 to be proved.  The committee dealt with these allegations as being allegations of misconduct as opposed to allegations of incapability.  Clearly the allegation of misleading is one of misconduct.  However, arguably the first three allegations could have been treated as allegations of incapability rather than misconduct.  However, having listened to the evidence we are satisfied that the disciplinary committee and the appeal committee held, on reasonable grounds, that the applicant was guilty of misconduct and indeed of gross misconduct rather than simply incapability.  The Reverend Hughes told us that the appeal committee spent a long time discussing whether the applicant was incompetent or whether she was being wilful and was refusing to do her job properly.  The appeal committee decided that it was the latter and thus the applicant was guilty of gross misconduct in respect of all the allegations made against her.  The disciplinary committee had earlier come to the same conclusion.” 

	Now these two hearings devoted great labour to the matter and there had been of course the report by the outsiders, which we have referred to, Mr Carriline and Mrs Aspinall.  It is said to us by Ms Moor that she has no criticism of the procedures followed and the fairness of the procedures followed.  It is inconceivable, since this was the way in which the disciplinary and the appeal committees of Governors had been conducting proceedings, that they had not made the allegations very plain to Mrs Higham and asked to hear all that she had to say on those.

	It is true that the earlier allegations could be regarded merely as matters of incompetence, or mishaps, which could be perhaps very largely mitigated, if the technicalities were gone into and it was shown that the computer was very difficult to operate and very confusing and that perhaps Mrs Higham was not getting all the instruction and assistance that she could reasonably ask for.  But the committees were going into questions much more serious than that and it is incredible (if they were doing their job properly, as is now acknowledged) that they did not make that very plain.  

	It is also clear that the Tribunal were not merely concentrating on the allegations of dishonesty, indeed they could hardly avoid doing that, but were making it very plain throughout, albeit perhaps in a somewhat impatient way from time to time, that that was what they were concentrating on too, and listening therefore to Mrs Higham with particular reference to that matter.

	The Tribunal then come to their conclusions.  They say that a proper investigation was carried out; that they were most impressed by the thoroughness and professionalism of the investigation in this case.  They said they rejected the criticism of the length of the suspension.  They said that at both hearings Mrs Higham had been given every opportunity to state her case.  All relevant documents were provided to the Applicant and her adviser.  The decision to dismiss was a reasonable response.  They dealt with the absence of warnings.  They said:
“8.  .... We consider that by her behaviour and, in particular, by her attempting to mislead Mr Bell, she wholly caused her own dismissal.  We consider that the applicant’s behaviour in this regard was both culpable and blameworthy.”

	Then they went on to the claim for wrongful dismissal - breach of contract:
“10.  The applicant also claims damages for breach of contract.  She alleges that as she was not guilty of gross misconduct it must follow that her summary dismissal cannot be justified.  Having heard the evidence, we are satisfied that the applicant was in fact guilty of gross misconduct.  In particular, we are satisfied that the applicant deliberately misled the senior staff of the school including Mr Bell, the Headmaster.  We consider that it is immaterial whether the applicant told direct lies or whether she was merely economical with the truth albeit we find that she was guilty of both.  Moreover, we consider that both types of behaviour amount to gross misconduct, particularly because the applicant held a responsible position.  Instances of the applicant misleading Mr Bell were littered throughout his evidence.  [That long proof of Mr Bell they have read.]  However, three examples will suffice for the purposes of this decision.  These were the applicant:-
(a)	telling Mr Bell that other schools were continuing to have problems with SIMS when this was not the case;
(b)	telling him that she was having problems with access to the system when this was clearly not the case;
(c)	telling him that she had not received training materials when in fact she had.
Thus, in that we are satisfied that the applicant was guilty of gross misconduct and that her summary dismissal was justified,  .... she was not wrongfully dismissed...”

	It is said by Ms Moor this decision will not do.  It is perverse.  It is simply not setting out what their findings are.  It is quite inadequate.  We have to look at that in the light of the fact that this Tribunal was merely going through matters which had been gone through with the greatest thoroughness first of all by an investigation which they found to be entirely adequate, long and patient, with the assistance of outside reports.  Secondly, in a disciplinary enquiry by the Governors, which they found to be eminently fair and which is not criticised today.  Third, by an appeal which was in fact a re-hearing by Father Hughes and his committee of governors, which they found again to be eminently fair and which is not criticised today.  They had referred to Mr Bell’s evidence.  This was an Applicant who had made a grave charge against Mr Bell.

	To go through all the details might be thought to be entirely beside the point.  If Mrs Higham had been unaware of any of the details, one would have thought that she would have made it clear to the Tribunal that she was confused about the nature of the charges being made against her; on the contrary, they repeatedly endeavoured to direct her attention to the nature of the charges being made against her.  We think this is really a case, with all respect to Ms Moor, of going at the matter in a rather different way from that which has been trodden before.  Everybody previously has said “there are all these matters and the question is whether they are dishonest or not”.  When they decided that, the Tribunal had decided everything.  It is true that they could have made a list, perhaps pages long, of everything that was in Mr Bell’s proof of evidence where he was complaining of these matters.  They do not do that and the obvious comment on that is, first of all, that they are not bound to set out everything.  They are merely bound to set out the main grounds of their decision and, secondly, they are not bound to set out evidence at all.  What they are bound to do is to reach a conclusion.  It is said by Ms Moor that this does not tell Mrs Higham why she has lost the case.  We think that is not a correct view.  She very well knew what was being alleged and much more important she knew that it was being alleged that it was dishonest of her.  The Tribunal had to try that.  They spent three days trying that.  That was the essential matter for them and they found against her on that.  

	It is very easy to say, looking at it at a safe distance, that the Tribunal might have reached a different conclusion; of course they might, so might the Governors, so might all those concerned with the case.  The fact is that a large number of highly responsible people have heard Mrs Higham and have reached an adverse conclusion about her.  Hard as it is on her, plainly, at this stage in her career, and we have great sympathy with her there, she must face the fact that she has been convicted under entirely regular procedures of serious matters, and has had serious charges, which she has made, rejected.  We cannot find any error of law here, even with Mrs Higham’s assistance and in particular with the assistance of Ms Moor, to whom we are extremely grateful.  In the circumstances we are obliged to say that this appeal cannot proceed any further.  There is no point of law.  It has no reasonable prospects of success and we must dismiss the appeal.