Appeal No.	 EAT/125/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 November 1999
Judgment delivered on 9 March 2000

Before
THE HONOURABLE MR JUSTICE CHARLES
MR L. D. COWAN
MR S. M. SPRINGER MBE

MRS B HEDDEN	APPELLANT

EXETER DIOCESAN BOARD FOR CHRISTIAN CARE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MR N MOORE
(Solicitor)
Messrs Stephens & Scown
Solicitors
25-28 Southernhay
East Exeter
EX1 1RS	

	MR JUSTICE CHARLES:	The parties to this appeal are a Mrs Hedden and the Exeter Diocesan Board for Christian Care (the Board).  Mrs Hedden appeals against a decision of an Employment Tribunal sitting at Exeter the Extended Reasons for which were sent to the parties on 4 December 1996.  The Employment Tribunal dismissed Mrs Hedden’s complaints of unfair dismissal and breach of contract.

Introduction

1	Our overall conclusion is that Mrs Hedden succeeds on her appeal against the dismissal of her claim for unfair dismissal but fails on her appeal against the dismissal of her claim for breach of contract.

2	Before setting out our reasons for reaching such conclusions, and dealing with what we consider to be the relevant points on this appeal, we are of the view that it is appropriate to say a little more by way of introduction.

3	This case came before this Tribunal by way of Preliminary Hearing on 26 June 1998.  On that occasion this Tribunal (through HH Judge Hull QC) gave a ten page judgment and identified therein a point which they considered to be reasonably arguable.  

4	Mrs Hedden sought leave to appeal against that decision on the preliminary hearing. That application was heard by the Court of Appeal (Thorpe and Sedley LLJ) on 2 February 1999.  In his judgment Thorpe LJ (amongst other things) says:

“There was an appeal to the Employment Appeal Tribunal which was called in for preliminary hearing before His Honour Judge Hull QC in June 1997.  The function of that preliminary hearing was to consider which, if any, of Mrs Hedden’s three submitted grounds should be permitted to go forward to the Tribunal for full hearing.  Judge Hull delivered a reasoned judgment which extends to some 10 pages, and it carefully explains his opinion that Mrs Hedden had demonstrated one arguable ground that should be permitted to go forward to full hearing.  In essence it was the argument that within the decision of the Industrial Tribunal there was an obvious internal inconsistency, namely that, if the Board had failed to show gross misconduct justifying summary dismissal, it could not then have succeeded on its subsidiary point that Mrs Hedden’s conduct had effectively destroyed the relationship of employment.  The other, alternative grounds, which Judge Hull rejected, can be crudely summarised as follows.  The first was that the Industrial Tribunal, and particularly its chairman, had misconducted itself; secondly, that the Tribunal been (sic) guilty of bias in a number of respects.  Thirdly, she sought to contend that the Chairman had erred in refusing her application to call before his Tribunal the Director of Social Services and a representative of the Social Services Inspectorate.  Judge Hull explained himself essentially in this way:
‘Having thought about it as carefully as we can, having heard Mrs Hedden, having read the papers and thought about it, we cannot find that any of those points are fairly arguable.   The Chairman and the Members have set out for our benefit their answers to the criticisms made of them.   We find that those points are not fairly arguable and the point which I have endeavoured to define is the only point which, in our view, is fairly arguable’.
Judge Hull went on to make a very important point.  It was that the proceedings before the Employment Appeal Tribunal are of their nature extremely legalistic and plainly require a professional presentation if the appellate procedure is to operate at its most effective.  He urged Mrs Hedden to obtain representation.  He pointed out that, in view of the fact that her appeal had been admitted to the full court, subject to financial eligibility, she was entitled to legal aid.  He went on to say that if she were by any chance not eligible then legal representation by a competent advocate should be available from the free representation unit.
The wisdom of Judge Hull’s opinion has been underlined by the application to this court today.  Mrs Hedden has had obvious and understandable difficulty in comprehending the function of this court or the issues that are relevant to today’s application ….
It is unnecessary to record and analyse in detail her submissions which establish in her mind the allegation of bias.  It is enough to say that she has even asserted that an absolutely anodyne paragraph in the reasoned decision of the Industrial Tribunal is to be construed as evidence of bias.  The paragraph is the second paragraph of the extended reasons which only records the fact that at an early stage in the proceedings the Tribunal assented to an application by the Diocesan Board that certain evidence should be taken in private in order to protect the anonymity of the adopted family.  Because within that paragraph Mrs Hedden has found the words ‘their evidence related to the applicant’s conduct with regard to a child’, she interprets or reads into that neutral phrase a finding of misconduct on her behalf which, she says, was never any part of the respondent’s case.  It is quite simply impossible to begin to interpret this harmless passage in the way that she suggests.  The reality is that the boundary between those grounds which merit a reference to full appeal and those grounds which do not was astutely drawn by Judge Hull and nothing that Mrs Hedden has said to this court today demonstrates any error in his determination or any prospect of her deploying either of the alternative grounds to a level that could be said to give either an arguable prospect of success.  This is quite simply a hopeless application, even setting aside the reality that it is considerably out of time.”

At the end of his judgment Thorpe LJ reiterated HH Judge Hull QC’s exaltation to Mrs Hedden to seek legal advice for the future conduct of her live appeal and directed that a transcript of the judgment of the Court of Appeal be prepared at public expense and sent to both Mrs Hedden and to the Employment Appeal Tribunal.  Sedley LJ agreed with the judgment of Thorpe LJ.

5	Mrs Hedden informed us that she had attempted to obtain legal advice and representation but had not been able to achieve this end.  As a result Mrs Hedden has represented herself before us and the hearing before us took two days.  

6	We record that during that hearing Mrs Hedden was allowed to raise and make submissions on points that went outside the ambit of the jurisdiction of this Tribunal.  Some of those arguments related to her points which this Tribunal (through the judgment of HH Judge Hull QC) and the Court of Appeal have held to be unarguable and have therefore already been dismissed.  We allowed Mrs Hedden to take this course because it is apparent to anyone who hears her make submissions in respect of this case that she has clearly invested a great deal of time, research and emotion into it and that she has some genuine difficulty in understanding the ambit of our jurisdiction and the issues that fall for decision on this appeal.  

7	We are sorry to have to record that in a number of ways Mrs Hedden has been her own worst enemy in the manner in which she presented her arguments, both orally and in writing.  In particular the following have had this result:

(a)  Mrs Hedden’s refusal, or inability, to accept that the essential point on this appeal had been identified in general terms by HH Judge Hull QC and the Court of Appeal, 

(b)  Mrs Hedden’s sensitivity and strong reaction to anything which she interpreted as being a criticism of her conduct whilst employed by the Board, coupled with her readiness to criticise others involved during that time and since.  In particular in this respect, in our judgment, her regular personal criticism of the Solicitor who represented the Board before us and the Employment Tribunal was unwarranted.  

(c)  Mrs Hedden persisted in pursuing a number of points of fact and law which were simply not supported by the documents she relied on.  

8	We repeat our thanks to the Board, and to the Solicitor who represented the Board, for their patience and their constant determination to focus on the central issues on this appeal.

9	Further, in respect of the point in paragraph 7(c) above it is apparent from the judgment of Thorpe LJ that Mrs Hedden advanced similar arguments in the Court of Appeal.  We do not propose to identify all the submissions made to us by Mr Hedden that were based on a reading of documents that was simply untenable.  Two examples are:

(a)  her assertion that the first page of the judgment of Thorpe LJ in the Court of Appeal contained 19 or 20 errors of law (and, as we understood her, of family law), and 

(b)  her assertion that the letters from the Social Services Inspectorate of the Department of Health dated 16 April 1996 and 16 October 1996 which were in the following terms:

“16 April 1996
Dear Mrs Hedden
Further to my secretary’s letter to you of 11 April 1996, and our telephone conversation today, I can confirm that this Inspectorate’s involvement was purely to ascertain whether Devon Social Services Department were considering your complaint in accordance with the Department of Health’s Complaints Directions and Guidance.  
As your own position has now been resolved with your employers you may feel you wish to go back to Yvonne Roxby (Devon SSD) to clarify any matters you feel appropriate about your initial complaint to Devon SSD.”

“16 October 1996
I am now in a position to reply to your letter of 23 September addressed to Sir Herbert Laming.
I write to inform you that the Social Services Inspectorate is unable to provide the statement which you seek on aspects of your case against the Exeter Diocesan Board.  It is the view of the Department of Health that your dismissal from employment and the events leading up to it are matters between yourself and your former employer alone.  I believe that we clarified earlier that SSI’s role in this case was to give information on the proper way to make a complaint related to a child’s welfare initially to your former employer and then to the Devon County Council.  You are, of course, free to produce to the Tribunal the published statement of the role and responsibilities of the Social Services Inspectorate which you mentioned in your letter to Sir Herbert.  
If you intend to seek an order that a representative of the Social Services Inspectorate attend at the Tribunal hearing.  I would expect you to draw this letter to the attention of the Tribunal.
I am sorry that I am unable to assist you further.

support:
(i)	her contention that an inspection carried out by the SSI had shown a failure by the local authority to act in accordance with proper procedures, and 
(ii)	her assertion that both the Board and the local authority had not acted in accordance with proper procedures and relevant statutory duties.  

The Background Facts

10	The findings of the Employment Tribunal as to the relevant facts for the purposes of their decision are set out in paragraphs 3 to 10 of their Extended Reasons.  These are in the following terms:

 “3  This hearing extended over 4 days during the course of which we were presented with extensive oral and documentary evidence by both parties.  On the balance of probabilities, and having regard to the demeanour of the witnesses, on the basis of that evidence we found the following to be the relevant facts for the purposes of our decision.
4  The applicant was employed as a Social Worker by the respondent’s Adoption Agency.  Her role was to assist and support parents seeking to adopt and for that purpose, and in the context of this case, to liaise with social workers from the Social Services Department of Devon County Council for the placement of children in its care.  Since 1994, the applicant worked with Mr and Mrs A following the placement of two children B and C with them with a view to adoption.  In May 1995 this placement was under some stress one of the difficulties being child B’s adjustment to the placement and her wish to have contact with her birth mother.  A dispute arose between the applicant and Miss Ronald, the social worker employed by the Social Services department, over this issue and the way in which any wish expressed by child B had been identified and formulated by the applicant.  In consequence, Mr and Mrs A were losing confidence in the social workers assigned to the case and by letter dated 30 June 1995 Miss Ronald wrote to the agency’s Adoption Director to suggest that it provide another support worker to work with Mr and Mrs A in place of the applicant and that she herself should withdraw from the case.  In particular, she referred in that letter to the confrontational style of working with Mr and Mrs A which the applicant had developed.  The Adoption Director visited Mr and Mrs A on 28 July 1995 together with the Adoption Agency Manager of Devon Social Services from which she gained the impression that they felt the dispute between the social workers was disruptive to the placement and they felt undermined by what they perceived to be the applicant’s intimidating approach.  The Adoption Director suggested, and they agreed, that her recently appointed deputy Mr Nicholas Goodwin should take over the support role from the applicant.  Following a period of leave, the Adoption Director met with the applicant on 10 August and told her that Mr Goodwin was to take over her role in working with Mr and Mrs A.
5  The applicant was not happy with this decision.  In the course of discussing the handover with her, Mr Goodwin gained the clear impression that the applicant did not accept her removal from working with Mr and Mrs A.  On 23 August 1995 the applicant had written to the Adoption Director enclosing a letter which she herself had written to Mr and Mrs A indicating that she would be seeking from the Adoption Director the reasons for her replacement so that she could convey them to children B and C.  In her reply dated 5 September the Adoption Director set out the reasons for the decision which had been taken.  That letter was countersigned by the Adoption Agency Director of the Social Services Department.  Subsequently, both Mr Goodwin and the applicant attended a statutory review meeting with Mr and Mrs A in September 1995 when one of the issues discussed was the applicant being able to say goodbye to children B and C.
6  On 9 October 1995 the applicant wrote to the Practice Supervisor at the Social Services Department commenting at length on the statutory reviews for children B and C stating that she required ‘a formal statement of intent from your department specifying your policy of direct contact in the care plan’ (for child B) and stating that in the absence of a written reply by 19 October she would be submitting a formal complaint to the Department’s Customer Services Officer.  Simultaneously she indicated that she would send a copy of the papers to the Department’s Director ‘because of the seriousness of your department’s negligence under section 20 and section 22(4)(a) of the Children Act 1989’.  At this point, the applicant was clearly expressing what she perceived to be her duty to ensure that the Department was meeting the obligations imposed upon it by those statutory provisions to give due consideration to the wishes of child B in the accommodation provided for it;  and to ascertain the wishes and feelings of the child before making any decision with respect to it.   That letter was written on the respondent agency’s headed notepaper.   On 10 October and in the course of a lengthy telephone conversation with Mr Goodwin, the applicant made further reference to the statutory provisions and indicated her intention to complain to Devon Social Services about the way in which the issue of child B’s contact with its birth mother had been handled.   As her deputy manager, it was open to him to instruct her not to do so but he took no such action.
7  On 16 October the Adoption Director of the respondent’s agency had a long telephone conversation with the applicant about her letter to the Social Services Department and made clear her disapproval of the applicant’s actions.  By letter of the same date the applicant wrote to the Adoption Director stating that she had ‘not yet formally accepted the terms set out in your letter dated September 5 1995’ which had been written jointly by the Adoption Director and the Adoption Agency Manager of the Social Services Department; and asking that there be a more open view of her involvement in the placement solely in relation to the children’s needs and the duty owed to them by the agency.  Quite clearly the applicant was not accepting the Adoption Director’s right to withdraw her from the case.  This was further evidenced by a letter which the applicant wrote direct to Mr and Mrs A on 13 October without reference to Mr Goodwin or indeed anyone else at the agency from which Mr and Mrs A could only have concluded that the applicant was continuing to be involved in their case notwithstanding the agreement which they had reached with the Adoption Director on 28 July.  On 23 October the applicant attended a meeting with Mr and Mrs A together with Mr Goodwin which had been arranged to enable the applicant to say goodbye to children B and C.  The attitude adopted by the applicant at that meeting particularly with regard to the explanation which she wished to give to the children for her replacement resulted in what Mr Goodwin subsequently described as an appalling fiasco.
8  On 21 October the applicant wrote to the respondent agency’s Administrator indicating that she ‘had had to question the managerial decision taken by my manager Caroline Davis’ and he treated this as a formal grievance under her contract of employment.  Shortly afterwards the Adoption Director also wrote to the Administrator expressing her extreme concern about the applicant’s conduct in relation to Mr and Mrs A and requesting that some formal action be taken.  The Administrator decided that both the applicant and the Adoption Director should provide him with detailed reports which he could then consider with the chairmen of the respondent’s agency.  The Adoption Director subsequently provided such a report but the applicant failed to do so.  On 3 November 1995 the applicant submitted a formal complaint to the Customer Services Officer of the Social Services Department on the respondent’s agency headed notepaper complaining that the department was in breach of the relevant provisions of the Children Act 1989 in relation to child B.  On 29 December 1995 the applicant wrote (again on the respondent’s headed notepaper) to the Social Services Inspectorate complaining about the failure of the agency and the Devon Social Services Department to accommodate child B’s wishes for contact with her birth mother in the course of which she indicated that 
‘it was necessary for me to confront the policy of the department and its attitude in relation to the child’s statutory rights.  Regretfully I have had to do this alone and without the support of my colleagues’.
9  On 8 December 1995 Mr and Mrs A submitted a formal complaint to the respondent agency in particular expressing their unhappiness with the way in which the change of support worker had been executed and the ‘series of distasteful and distressing events which took place in our home’ on 23 October when the applicant had attended the purported farewell meeting.  The arrival of this complaint coincided with the submission of the Adoption Director’s report to the Administrator concerning the applicant’s conduct and the Administrator appointed an independent investigator to look into the events surrounding these complaints in detail.  In his subsequent report the independent investigator concluded that in relation to the complaint by Mr and Mrs A, the applicant’s professional practice and related behaviour could be construed as gross misconduct under the agency’s disciplinary procedure.  In relation to the applicant’s actions in response to her removal from Mr and Mrs A’s case (and in particular by addressing complaints to the Social Services Inspectorate and to Devon Social Services Department) he concluded that the applicant had put herself outside the control of the respondent’s agency’s management and that these actions could also be construed as a matter of gross misconduct.  In the light of that report the respondent suspended the applicant on full pay and disciplinary proceedings were instituted.
10  The applicant was subsequently summoned to a disciplinary meeting held on 6 March 1996 prior to which she was provided with reports prepared by the Administrator, the Adoption Director and part of the independent investigator’s report dealing with her actions in pursuing complaints against Devon Social Services.  The respondent took the view that the disciplinary proceedings should be confined to the applicant’s conduct in pursuing those complaints and refusing to adhere to her management’s instructions.  For that purpose, it concerned itself primarily with the applicant’s conduct following the statutory review meeting on 19 September with Mr and Mrs A at which it had been intended that she should formally hand over the case to Mr Goodwin.  The disciplinary hearing was adjourned and reconvened on 20 March 1996 and at both sessions the applicant attended accompanied by a solicitor.  The Chairman of the Board, the Archdeacon of Exeter who presided over both sessions then submitted a report to the respondent’s Standing Committee in which he concluded that the allegations that the applicant had put herself outside the control of management were proven and constituted gross misconduct under the respondent’s disciplinary procedure.  At a meeting of the Standing Committee held on 10 April the applicant was again accompanied by her solicitor and was invited to respond to the allegations.  She was asked, as she had been by the Chairman of the Board at the disciplinary hearings, whether she would cease the stand which she was taking on the issue of B’s contact with her birth mother.  She indicated that she was willing to do so only on conditions which the respondent reasonably concluded would require it to accept that the applicant’s primary duty as a social worker required her to have a continuing concern for child B and that in pursuing that concern she could act independently of her management.  In the circumstances, the respondent concluded that the applicant would continue to operate independently of her management not only in relation to Mr and Mrs A’s case but also in other cases assigned to her; and that in view of the findings of gross misconduct against her there was no alternative but to terminate her employment.  She was so informed by letter dated 10 April 1996 and was provided with pay in lieu of notice notwithstanding the finding of gross misconduct which merited instant dismissal under the respondent’s disciplinary procedures.”

Comment on our approach

11	We are not a fact finding Tribunal.  It was correctly not argued that the findings of primary fact made by the Employment Tribunal were perverse or that there was no evidence to support them.  We proceed on the basis of those findings.

12	We have however had the advantage of reading those findings together with the bundle of documents that was before the Employment Tribunal and some (but limited) further documents.  Having read such documents we take this opportunity of complimenting the Employment Tribunal on their accurate precis of the documents in their exposition of the relevant facts.

13	We have prepared a chronology by reference to the documents that were before the Employment Tribunal and the findings of fact made by the Employment Tribunal.  It is in Part A of the schedule to this judgment. The purpose of that chronology is set out in the introduction to it.  We repeat that we have not prepared the chronology for the purpose of finding facts.  In our judgment the bundles that were before the Employment Tribunal (and thus the chronology) help to identify the nature of the problems and disputes identified by the Employment Tribunal originally and then the actions and stances taken by Mrs Hedden, the Board and the local authority.

14	Further during the hearing and in reaching our conclusions set out in this judgment we have regularly reminded ourselves that our jurisdiction in this case is limited to considering whether the Employment Tribunal erred in law (see s. 21 Employment Tribunals Act 1996).  It follows that unless the Employment Tribunal have made a finding relating to Family law it is not part of our function to decide the points of family law raised by Mrs Hedden.  In particular it is not our function to decide whether the local authority, the Board or Mrs Hedden have acted in breach of duties under the Children Act 1989, the Adoption Act 1976, or regulations, or the common law relating to children being looked after by a local authority and who are placed for adoption (“Family law points”). 

15	Later in this judgment we deal with and set out our views on some Family law points  We do so as part of our reasoning and in the hope that it will assist in the future.

16	At times during her submissions Mrs Hedden made some far reaching points relating to the duties of individual social workers, the Board and the local authority, and made allegations that both the Board and the local authority were in breach of their duties and negligent.  Some of the documents make assertions that Mrs Hedden acted, or may have acted, in breach of her duties and without lawful authority.  We make no findings on any of those allegations and nothing we say should be taken as an indication that we have concluded that either (i) the local authority or the Board, or (ii) Mrs Hedden, have acted in breach of duty or otherwise unlawfully.

17	Further we make it clear that from what we have seen and heard it appears to us that all the individuals involved have had regard to the welfare of the children and were seeking to promote it.

18	As we shall further explain it is clear that this is a case in which there is room for  differing views as to what contact between the children and their birth family (and in particular their mother) would best safeguard and promote their welfare throughout their childhood (see the test in s. 6 Adoption Act 1976).

The Reasoning of the Employment Tribunal.

19	This is contained in paragraphs 11 to 18 of the Extended Reasons which are in the following terms:

“11  Those are the relevant facts as we find them.  What we have to determine in the light of those facts and having regard to the complaints of the applicant is whether her dismissal was fair or unfair; and whether the actions taken by the respondent breached the applicant’s contract of employment.  In relation to the applicant’s dismissal the fairness or otherwise of that dismissal has to be determined in accordance with the provisions of section 98 of the Employment Rights Act 1996.  That section requires the respondent to show the reason for the applicant’s dismissal and that it was for a potentially fair reason.  We then have to determine whether the respondent acted reasonably or unreasonably in treating the reason it has shown as a sufficient reason for dismissal.  That involves two aspects, firstly the substantive fairness of the decision to dismiss which is normally tested by the concept of whether dismissal falls within the range of responses of a reasonable employer.  Secondly, it involves procedural aspects, namely whether the decision to dismiss was implemented in a procedurally fair manner.
12  The respondent in its evidence has effectively advanced two reasons for the dismissal of the applicant and these are set out... .  It first of all refers to the fact that the applicant made complaints to Devon Social Services and to the Social Services Inspectorate on the respondent’s headed notepaper such that her action in doing so was detrimental to the work of the respondent or reflected adversely on the reputation of the respondent.   In so doing the respondent places that course of conduct by the applicant in the category of gross misconduct as so defined in its disciplinary procedure.   In considering that particular reason and the respondent’s view that it comprised gross misconduct, we have taken into account the very important point made by the respondent’s Chairman in the course of his evidence to this tribunal that following a favourable report on the activities of the agency by the Social Services Inspectorate the agency was in the process of negotiating a fresh contract with Devon Social Services and that the actions of the applicant in writing as she did to Devon Social Services and to the Inspectorate could have a damaging effect on the standing of the agency in the eyes of Devon Social Services.   On balance, however, and it is a fine judgment, we take the view that the respondent could not properly regard that aspect of the applicant’s conduct as gross such as to justify summary dismissal but rather we take the view that it falls to be treated and should have been treated as an act of serious misconduct for which the appropriate disciplinary action would have been warnings.   In taking that view we are mindful that the respondent agency’s management had very clear indications from the applicant that she proposed to raise those complaints with the external agencies in order to pursue her concerns and yet no firm action by way of an explicit instruction or warning was given by the management in order to prevent her.   We have taken into account the suggestion in the course of the respondent’s evidence that no amount of warnings would have deterred the applicant.   Be that as it may, on balance, we take the view that those actions of the applicant did not amount to a sufficient reason for her dismissal and that dismissal for that reason would not fall within the range of reasonable responses.
13  There is, however, a second reason advanced by the respondent which is the belief it held that in the light of the applicant’s conduct (which it viewed as unprofessional and intolerable) in relation to the placement of B and C with Mrs and Mrs A, it could not in future have any confidence that the applicant would not in any other case assigned to her act outside the control of the respondent and its managers.  The evidence presented to us provides strong support for that belief and the fact that the respondent held it.  Statements made by the applicant to her managers and others in correspondence put before us makes it entirely clear that she fully intended to pursue with the external agencies on behalf of Child B that child’s rights as enshrined in the relevant sections of the Children Act 1989 as she construed them with the benefit of professional advice.  She made her position in that respect equally clear in the course of disciplinary proceedings namely that she had a responsibility to pursue with the Social Services Directorate the issue of Child B’s contact with her birth mother given that the line that she was advocating on that issue was contrary to that being jointly taken by the Devon Social Services Department and the agency.  She made equally clear before the standing committee that she believed that she must act independently of the agency in pursuing that issue which she perceived to be a matter of duty and conscience.   It was that attitude that led the respondent to the view that it could not in future have confidence that the applicant would not seek to act independently of the agency in any other case assigned to her and that it was reasonable to dismiss her for that reason.   We agree.   We accept that by conducting herself in that way the applicant had undermined the trust and confidence which an employer must necessarily have in its employees.  While that must always be the case such trust and confidence as we perceive it must be of fundamental importance in the area of social work with which the applicant was involved.  Very sensitive issues arise in that work in ensuring that children, in many cases traumatised and coming from insecure backgrounds, are properly accommodated; and equally sensitive issues arise in relation to prospective parents who are seeking to develop family life through the adoption route.  In those circumstances, it is our judgment that the belief held by the respondent and the resulting loss of trust and confidence in the applicant was a sufficient reason for her dismissal and that dismissal was a reasonable response.
14.   We have been exercised in our minds throughout this case with the issue of child B’s rights under the Children Act but we are satisfied that those rights have not been prejudiced by the respondent’s actions.   Indeed, we note that the applicant’s complaint in this regard was directed to the attention of the Social Services Inspectorate and it would appear from subsequent correspondence and acknowledgements from them that the issue did not unduly concern them; and they do not appear to have felt it necessary to pursue it in the light of the applicant’s dismissal.
15  For all the foregoing reasons it is our unanimous decision that the applicant was fairly dismissed and her application for reinstatement is dismissed.
16  The applicant also complains of major breaches of contract and of its implied terms by the respondent and its officers.  Many of these alleged breaches of contract seem to relate to the manner in which the applicant’s grievance lodged initially with the respondent’s Administrator was dealt with and how the disciplinary proceedings were conducted.  We find those allegations totally unfounded and we are entirely satisfied that the disciplinary proceedings were fairly conducted by the respondent against the applicant.  Indeed, by referring the matter to the respondent’s Standing Committee, the Chairman introduced a further stage in the disciplinary procedure which effectively provided the applicant with an appeal.
17  The applicant also appears to allege that by seeking to prevent her from addressing complaints direct to the Social Services Inspectorate, the respondent was preventing her from pursuing her previous practice of consulting that body on various issues and was thereby changing the terms and conditions of her employment.  We find that suggestion to be totally without foundation.  Any employer is entitled at any time to give to an employee clear instructions on any particular matter and to suggest that to do so somehow constitutes a breach of contract represents a misunderstanding of a manager’s right to manage an employee in the context of the employment relationship.
18	 In our view, there is no substance whatever to the complaints by the applicant that the respondent breached her contract of employment and those complaints are dismissed.”

Section 98 Employment Rights Act
20	As appears from paragraph 11 of the Extended Reasons the Employment Tribunal correctly identified that in determining whether Mrs Hedden’s dismissal was unfair they had to apply section 98 of the ERA.  The relevant parts of s. 98 are in the following terms:

“(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 it is either a reason falling within subsection (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 subsection if it -
(a)  relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b)  relates to the conduct of the employee,
(c)  is that the employee was redundant, or
(d)  is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

(4)  Where the employer has fulfilled the requirements of subsection (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.”

When this case was before the Employment Tribunal two established aspects of the approach to the application of s. 98 relating to substantive and procedural fairness are set out at the end of paragraph 11 of the Extended Reasons.  As to substantive fairness and the “range of reasonable responses” this case was decided at the Employment Tribunal a long time before this Tribunal decided Haddon v Van Den Bergh Foods Ltd [1999] IRLR 672 (which is a case that had been recently decided when this appeal was heard on 29/30 November 1999).  Notwithstanding the fact that the Haddon case had not been decided when this case was heard we gave the parties an opportunity to make submissions in writing to us on the Haddon case because of the reference in paragraph 11 of the Extended Reasons to the range of reasonable responses.  However in our judgment the questions whether or not (i) the  Haddon case was correctly decided, (ii) it is binding on us, and (iii) we could take it into account in deciding whether the Employment Tribunal erred in law when it did not exist at the time of that case do not arise in this case.  The reason for that is that on the assumption that the answer to all those questions was “yes” the Haddon case makes no difference because, as is apparent from paragraph 13 of the Extended Reasons, the Employment Tribunal reached their conclusion on the basis that in their judgment it was reasonable for the Board to dismiss Mrs Haddon and thus without resort to the limits, or extent, of the range of reasonable responses, or to the statements in the cases that the Employment Tribunal must not substitute their decision for that of the employer.

The approach of the Employment Tribunal

21	It is apparent from the Extended Reasons that the Employment Tribunal reached their conclusions on the issue of unfair dismissal and breach of contract that were before them without considering in any detail the respective position of the parties, the local authority and the Department of Health (the Social Services Inspectorate - SSI) in Family law (and thus for example under and by reference to the Children Act 1989, the Adoption Act 1976 and various statutory instruments referred to and relied on by Mrs Hedden).  This appears for example from the facts that:
(i)	they make no findings in respect thereof, and 
(ii)	paragraph 14 of the Extended Reasons contains no reasoning. 
Further in our judgment given the limited participation of the SSI shown by the correspondence referred to in paragraph 14 of the Extended Reasons it does not form a satisfactory basis for a conclusion that the rights of child B under the Children Act (which the Employment Tribunal do not define) have not been prejudiced by the Board’s actions.  Further, as we understood it, there was common ground between the parties that the Employment Tribunal did not consider the underlying Family law issues, arguments and position.

22	The Employment Tribunal do however recognise and proceed on the basis:
	(a)	that Mrs Hedden was advancing what she believed to be rights of Child B under the Children Act as she construed it with the benefit of advice (see paragraph 13 of the Extended Reasons),
	(b)	that in Mrs Hedden’s view she had a responsibility to pursue the issue of Child B’s contact with her birth mother and that she was doing so as a matter of duty and conscience (see paragraph 13 of the Extended Reasons), and
	(c)	that the Board did not discipline, or criticise, Mrs Hedden for her behaviour and work during the time that she was working with the prospective adopters up until 10 August 1995 when the Adoption Director told her Mr Goodwin was to take over and the Board took the view that the disciplinary proceedings should be confined to Mrs Hedden’s conduct  in pursuing complaints against Devon Social Services and refusing to adhere to her management’s instructions (see paragraph 10 of the Extended Reasons).

23	The points made in paragraph 22 have the result that the disciplinary proceedings were being conducted by the Board, and the Employment Tribunal had to consider the position in respect of both reasons for the dismissal advanced by the Board before them, on the basis that:
(1)	Mrs Hedden was making and advancing points which she considered it was her duty to advance and which she was advancing as a matter of duty and conscience.
(2)	No criticism was being made of  her involvement with the proposed adopters and the children prior to 10 August 1995, and Mrs Hedden was not being blamed for the difficulties that the Board perceived to have arisen prior to August 1995 in respect of the placement.
(3)	Mrs Hedden’s involvement up to that date in the issue as to what contact the children (and in particular Child B) should have with their mother (and other members of their birth family) was part of Mrs Hedden’s role in connection with the placement.
(4)	Mrs Hedden’s	views on the approach to contact during her day to day involvement with the placement were reasonable (or were at least not unreasonable or the subject of criticism or any disciplinary action) and were based on her views as to what would best promote the welfare of the children.
(5)	During Mrs Hedden’s involvement up until early August 1995 part of the role of the Board was to express views on and assist in respect of the issues that arose as to contact between the children and their birth family (and in particular their mother).
(6)	Generally having regard to the above and the “Family law issues” relating to contact between the children (and in particular Child B and her mother) Mrs Hedden was throughout advancing views that could reasonably (or not unreasonably) be said to be ones that best promoted the welfare of the children and thus ones that should be considered by the relevant decision makers (i.e. the local authority and the court) on issues relating to adoption and contact.

24	In our judgment the points made in paragraphs 22 and 23 hereof are relevant to both aspects of the case relating to unfair dismissal and thus to the points dealt with in paragraphs 12 and 13 of the Extended Reasons.  Further, we comment at this stage that although we can see why the Board took the stance referred to in paragraphs 22 and 23 hereof in our view it caused problems.  This is because complaints had been made about Mrs Hedden’s conduct  during the placement (e.g. by Jenny Deakin a social worker employed by the local authority who made a complaint on 18 December 1995), and some criticisms were made of her conduct (and that of others) during the period up to the end of July 1995 by Mr Stanton.   The existence of such complaints and criticisms, and by way of further example Mrs Hedden’s reaction to her removal and the comments of the Board thereon contained in the letter dated 5 September 1995  from the Board’s Adoption Director to Mrs Hedden, meant that it was difficult for the Board and Mrs Hedden to approach the issues on the basis set out in paragraphs 22 and 23 above.  This was particularly the case when it is remembered that some of the issues raised related to Mrs Hedden’s discussions with Child B.

The Family Law Background

25	Generally:
	(a) 	the children were not the subject of care orders and had been placed with the local authority voluntarily,
	(b)	the local authority therefore did not have parental responsibility for the children,
	(c)	as we understand it the children had different fathers (there is no finding of fact as to this but we understand that one of the fathers was married to the mother at the time the child was born with the result that he had parental responsibility and his consent to the adoption of that child was necessary unless dispensed with under s. 16 Adoption Act 1976),
	(d)	the mother had parental responsibility and her consent to the adoption of the children was necessary (unless dispensed with under s. 16 Adoption Act 1976),
	(e)	it was common ground that s. 22(1) Children Act 1989 applied and as the children were not in care the basis for this common ground was that they were being provided with accommodation by the local authority, and
	(f)	the children had been placed with Mr and Mrs A with a view to adoption.

26	Relevant parts of sections 17, 22, 26, 105, 3 and 1 of the Children Act 1989 are set out in Part B of the schedule to this judgment.

27	Relevant parts of sections 1, 6, 12, 16, 39 and 72 of the Adoption Act 1976 are set out in Part B of the schedule to this judgment.

28	A comparison of the Children Act 1989 and the Adoption Act 1976 shows that the test, or approach, in s. 1 Children Act 1989 is not the same as that in s. 6 Adoption Act 1976.  In the latter case the welfare of the child is not the court’s paramount consideration but its first consideration.  

29	In cases where the parent (or parents) has (or have) not consented to an adoption order it is well established that the court takes a two stage approach to the making of an adoption order by asking first whether adoption is in the best interests of the child and, if so, whether a ground for dispensing with consent has been established.  

30	An adoption order (i) gives parental responsibility to the adoptive parents, and (ii) has the effect that parental responsibility existing immediately before the order and any order under the Children Act (e.g. as to contact) is extinguished.  Further an adoption order has the result that the adoptive parents are treated as the adopted child’s parents in law.  These effects of an adoption order underlie the court’s approach to issues relating to contact between an adopted child and his or her birth family both during the period leading up to, and after, an adoption order.  

31	Issues as to contact should be carefully considered during the period leading up to and on the making of an adoption order.  In Re S (Adopted Child: Contact by Sibling) [1999] 1 AER 1 I was concerned with an application for leave to bring proceedings for a contact order by a sibling of an adopted child.  My citation of authority and comment under the heading “The approach having regard to the fact that S is an adopted child” sets out the general approach of the court to issues relating to contact with a child’s birth family at, and after, an adoption order.  The most relevant parts of that passage for present purposes is at pages 12d to 14e and is in the following terms:

“In making an adoption order the court is required by s 6 of the Adoption Act 1976 to have regard to all the circumstances but to give first consideration to the need to safeguard and promote the welfare of the child throughout childhood.  This is a different test to that contained in s 1 of the 1989 Act, but it follows from s 6 of the 1976 Act that an adoption order will only be made if the court making it concludes that it promotes and safeguards the welfare of the child.  An adoption order gives parental responsibility to the adopters and extinguishes the parental responsibility that any person has prior to the making of the order (see s 12 of the 1976 Act).  It thus brings about a fundamental change in the identity of the persons responsible for the upbringing of the child and places discretionary responsibilities on the adoptive parents.
It follows that in considering the approach to be taken having regard to the fact that S is an adopted child, I have had particular regard to:  (a) the passage in the speech of Lord Ackner in Re C (a minor) (adoption:  conditions) [1988] 1 All ER 705 at 712-713, [1989] AC 1 AT 17-18, where he says:
‘No doubt the court will not, except in the most exceptional case, impose terms or conditions as to access to members of the child’s natural family to which the adopting parents do not agree.  To do so would be to create a potentially frictional situation which would be hardly likely to safeguard or promote the welfare of the child.  Where no agreement is forthcoming the court will, with very rare exceptions, have to choose between making an adoption order without terms and conditions as to access, or to refuse to make such an order and seek to safeguard access through some other machinery, such as wardship.  To do otherwise would be merely inviting future and almost immediate litigation.’
(b)  Re C (a minor) (adopted child:  contact) [1993] 3 All ER 259, [1993] Fam 210, which concerned an application by a natural mother for leave to issue proceedings seeking a contact and specific issues order.  In that case counsel by reference to a work of Mr Ryburn (who I think is the Dr Ryburn who has written reports in this case) urged the court not to be bound by what he called conventional wisdom but to look at the mother’s application liberally.  However, Thorpe J rejected that approach and accepted the argument (see [1993] 3 All ER 259 at 264, [1993] Fam 210 at 215) and concluded:
‘It seems to me that the Official Solicitor is right to emphasise that adoption orders are intended to be permanent and final.  A fundamental question such as contact, even if confined to the indirect, should not be subsequently reopened unless there is some fundamental change in circumstances.’ (See [1993] 3 All ER 259 at 264, [1993] Fam 210 at 216.)
I comment that Thorpe J was there contemplating the reopening of issues as to contact through the means of granting leave to bring an application under s 8 of the Act, and not by any revisiting of the original adoption order.
(c) Re T and ors (minors) (adopted children:  contact) [1996] 1 All ER 215, [1996] Fam 34, which was a case in which an adult sibling D sought leave to bring an application for contact with her adopted half-brothers and sister.  At the time the adoption order was made D withdrew an application for contact and there was an informal agreement that the adopters would provide annual reports on the adopted children.  D made her application when the adopting parents failed to supply such a report.  The Court of Appeal referred to Re C (a minor) (adopted child:  contact) [1993] 3 All ER 259, [1993] Fam 210, but stated that the decision in Re T (a minor) (contact after adoption) [1995] 2 FCR 537 was more in point, and found that the failure of the adopters to provide the promised report was a change in circumstances and that the adopters could not resile from their informal agreement without giving reasons.  The Court of Appeal gave the adopters a chance to give reasons and remitted the case to the county court to consider it in the light of any reasons the adopters gave for not providing the report.  That was therefore a case where the informal agreement of the adopters to provide reports had induced D to withdraw her application for contact at the time of the adoption and had promoted the adoption on the basis, or understanding, that the adopters would provide the reports.
(d) Re T (a minor) (contact after adoption) [1995] 2 FCR 537 concerned an adoption where the court at first instance made an order for contact.  The Court of Appeal decided that no such order should have been made and that contact should have been left to the good sense of the adopters, and that if they decided to end or change the contact they should give reasons for this change of mind and in the light thereof the mother could seek leave to bring an application for contact under s 8 of the Act (see, in particular, at 542).  This approach is based on the passage from the speech of Lord Ackner in Re C, referred to above, the finality of adoption, the importance of letting the new family find its own feet and of putting the adopting parents, who have taken on the considerable burdens, responsibilities and pleasures of parenthood, in the position of being able to make their own decisions as to what is in the best interests of their child in light of the circumstances that exist from time to time.
In my judgment, I should not seek to define what might constitute changes in circumstances which would warrant the grant of leave to bring an application for a contact order in respect of an adopted child and thereby remove, or go behind, the finality of an adoption order.  But, in my judgment, in considering whether there has been a fundamental or sufficient change in circumstances to warrant leave being granted it is necessary to consider on the facts of each case:  (i) the effect, or potential effect, of the difference in circumstances between those that existed at the time the adoption order was made and at the time of the application for leave, and (ii) how that effect impacts on the finality of the adoption order, the discretion and responsibility conferred on the adopters thereby and the regime, or new family, created by the adoption order to safeguard and promote the welfare of the adopted child during his or her childhood.
In my judgment useful guidance is given as to the approach to be adopted by the judgment of Sir Ralph Gibson in Re T (a minor) (contact after adoption) [1995] 2 FCR 537 at 545, where after agreeing with the reasoning of the Butler-Sloss and Millett LJJ, he says:
‘ … but the proper response to any change in circumstances should be left to the decision of the adoptive parents and the discharge of their responsibility to the child.  If their decision should be demonstrably against the best interests of the child, then the natural parent can apply to the court for leave to seek an order for contact.  Such procedural requirements as exist are imposed for the proper protection of the child and the adoptive parents against unnecessary disturbance.’
The first part of that passage reflects the reasoning why an adoption order should be final, and the fact that to safeguard and promote the welfare of the adopted child through his or her childhood it confers such discretion on the adoptive parents and the second part thereof identifies the approach to be taken by reference to the decision made by the adopters, the effect of an adoption order and the discretion vested in them thereby.
This approach accords with that taken in Re T and ors (minor) adopted children: contact) [1996] 1 All ER 215, [1996] Fam 34 because there the Court of Appeal remitted the case to give the adopters an opportunity to give their reasons as to why they had failed to comply with the understanding reached at the time of the adoption and, if they gave such reasons, to enable the county court to reconsider the application for leave in the light of them.”

32	The general position is therefore that the court will not impose a contact order or regime on adopting parents with which they do not agree and the difficult position may be reached on an adoption application in which the court has to choose between making an adoption order without terms as to contact or to refuse to make such an order.  This gives rise to difficulties not only in respect of the question whether an adoption order would best promote the welfare of the child but also as to the question whether a parent is unreasonably withholding consent.

33	The obvious and pragmatic solution is to take steps to seek agreement, or a common understanding, between the adoptive parents and the members of the birth family who have been having, and might wish to have, contact.  How that is done will vary from case to case.  But when an application for an adoption order is made the position as to future contact with the birth family should have been addressed by the parties and should be addressed by the court.

34	There is a difference between an “open adoption” in the sense that the adopted child continues to see members of his or her birth family on a regular, or irregular, basis during childhood and an adoption on the basis that an adopted child is brought up in the knowledge that he or she is adopted and with knowledge from a life story book, and otherwise, of his or her birth family and adoption.  There is also room for a divergence of view as to:
(a)	which type of adoption would best safeguard and promote the welfare of the child, and
(b)	the nature and extent of contact in the first type of “open adoption”.

35	When children have been placed for adoption issues in respect of their contact with their birth family need to be considered having regard to the intention that the children are to be adopted and the manner in which contact issues are dealt with by the court on, and after, adoption.  It follows that the approach and learning in respect of:
(i)	private law applications for contact orders (for example the statements in the cases relating thereto as to the child’s right to contact and the advantages of a child getting to know his or her parent and therefore not growing up with an incorrect picture of that parent), and 
(ii)	applications for contact under s. 34 Children Act 1989 in respect of children in care, 
are only relevant by analogy.

36	When an adoption order is envisaged as being the best solution for a child contact during the period leading up to the proposed adoption (and contact thereafter) need to be assessed in the light of the effect of an adoption order (as opposed to say long term fostering or placement in a children’s home or a residence order) and the changes, benefits and potential disadvantages that an adoption order will bring about.  In this context the views and abilities of the proposed adopters and the birth parents are relevant and important, as are the age of the child, the life he or she has led and his or her attachment to a birth parent.  Also, of course, the views and feelings of the child, if he or she is of a sufficient age and understanding to express them, are relevant and important.  But none of these matters are by themselves decisive. 	  

37	Relevant parts of rules 2, 15, 17, 18, 21, 22 and 23 of the Adoption Rules 1984 are set out in Part B of the schedule hereto.

38	These rules enable the court (whether the High Court, where the child is automatically a party, or the County Court) to be fully and properly informed of the relevant issues concerning the making of an adoption order and thus why an adoption order would best promote and safeguard the welfare of the child throughout his or her childhood on the basis of the contact proposed and envisaged after the making of an adoption order.

The position in this case having regard to that Family Law background

39	It is clear from the Form E (see the chronology in Part A of the schedule hereto) that Child B was experiencing confusion and distress and was having difficulties coming to terms with being without her mother.  This is unsurprising having regard to  her age and the fact that she had lived for some time with her mother. There were undoubtedly problems relating to the questions (i) whether adoption was the best option, and (ii) contact, including and having regard to:
	(a)	what contact the mother could sustain,
	(b)	what contact the proposed adoptive parents could sustain,
	(c)	the extent of contact with other members of the birth family,
(d)	the wishes and position of the mother (and the father whose consent to adoption was necessary) on contact and how it affected their willingness to consent to an adoption order being made, and
(e)	the wishes of the children in respect of contact with their birth family,
(f)	the understanding that the children had of the issues,
	(g)	the general stance of the mother (and the father whose consent to adoption was necessary) on adoption order(s) being made,
	(h)	the stance of other members of the birth family on contact and adoption,
	(i)	how contact leading up to adoption would affect the medium to long term advantages of adoption or put at risk the making of an adoption order in respect of both children,
	(j) 	the effect contact, or the lack of contact, after an adoption order would have on the stability of the family comprising both the children and the adoptive parents and thus on the benefits that would flow from such stability, and
(k)	the effect contact between the mother and Child B would have on Child C, and
(l)	the other options open in respect of the upbringing of the children and the promotion of their medium to long term welfare.
	
These issues include and relate to the issue that was given prominence in this case, namely contact between the mother and Child B, and the wishes and understanding of Child B as to such contact.  The papers do not reveal the extent of any discussions with the mother as to this issue and for example what she was told of Child B’s position and what her general attitude to contact was.

40	There is no finding to this effect but as we understand it (and this was the Board’s case and the contrary was not suggested) it was the local authority who placed the children for adoption and thus it would be the local authority as the adoption agency who would be responsible for writing the report under Rule 22 of the Adoption Rules.

41	The Board’s case was that the children were not accommodated by it, or on its behalf.  This accords with the common ground before us and the Employment Tribunal that the children were being “looked after” by the local authority and therefore that s. 22 Children Act 1989 applied.  However during the course of her submissions to us Mrs Hedden asserted that the children were accommodated by the Board.  She repeated this assertion in her final written submissions in the following terms:
“the Respondent (the Board) accommodates its children in premises known as placements, houses belonging to prospective adoptive couples, providing such accommodation for Local Authorities all over the country. ------- “

This written assertion (like her oral assertions) by its reference to the provision of such accommodation for local authorities indicates that (or it is at least consistent with the Board’s contention that) it was the local authority who provided accommodation for the children. Further Mrs Hedden did not support her assertion that the children were accommodated by, or on behalf of, the Board by reference to any third party evidence or point to any evidence that was before the Employment Tribunal that would support that assertion.  We are not a fact finding Tribunal and we do not accept this assertion.  We have proceeded on the basis that the children were provided with accommodation by the local authority and were not accommodated by, or on behalf of, the Board for the following reasons:
(a)	this accords with paragraphs 2 and 4 of the Extended Reasons (although they do not include express findings to this effect), 
(b)	this accords with what we would expect and, for example, the Board’s mission statement,
(c)	this accords with the papers we have seen and in particular the assertions made by, and on behalf of, Mrs Hedden and her stance in 1995 and 1996 to the effect that sections 20, 22 and 26 Children Act applied (see for example her letter of 2 October 1995 to the local authority, her complaint of 2 November 1995 (enclosed with her letter of 3 November 1995) and Mr James’ paper of 1 April 1996 which was put before the disciplinary hearing held on 10 April 1996),
(d)	the basis of the common ground that the children were being looked after by the local authority was that they were being provided with accommodation by the local authority because (notwithstanding the reference in paragraph 4 of the Extended Reasons to the children being in the care of the local authority) this was not the case (see the definition of a child who is looked after by a local authority in s. 22), 
(e)	the common ground that the children were being looked after by the local authority therefore has the consequence that Mrs Hedden  is accepting and asserting that the children were provided with accommodation by the local authority but is asserting that at the same time they were being accommodated by, or on behalf of, the Board, and
(f)	the lack of any independent evidence to support Mrs Hedden’s assertion to us that the children were being accommodated by, or on behalf of, the Board.
We comment further that although this approach accords with the Board’s case as to who was providing the children with accommodation it does not prejudice Mrs Hedden in respect of her appeal against the dismissal of her claim for unfair dismissal.  This is because we have decided on this approach that the issue whether the dismissal on the basis of the second reason (i.e. the Boards’ belief that in the future Mrs Hedden would act outside the control of the Board) was fair or unfair should be remitted to, and reconsidered by, the Employment Tribunal in the light of the respective positions of the parties and the local authority having regard to the Family law background, and it therefore follows that:
 (i) 	Mrs Hedden does not need to establish, or rely on, her assertion that the children were accommodated by, or on behalf of, the Board on her appeal against the finding that her dismissal was not unfair, and
 (ii)	on such remission Mrs Hedden could seek to establish that fact and rely on it as part of her arguments relating to the position of the parties and the local authority in Family law.
		
42	It follows that we proceed on the basis (and this does not disadvantage Mrs Hedden in respect of the appeal against the finding that she was not unfairly dismissed) that the primary responsibility in respect of the issues as to contact lay with the local authority, and the primary responsibility of the Board was to assist and support the proposed adoptive parents (see paragraph 4 of the Extended Reasons).

43	However we repeat that the basis upon which the Board conducted its disciplinary hearings and the Employment Tribunal conducted the case was that no criticism was being made of Mrs Hedden’s involvement prior to 10 August 1995 in respect of issues relating to contact and as recorded in paragraph 13 of the Extended Reasons the local authority and the Board were taking a joint stance on the issue of contact.  It follows from that (at the least) it is arguable that if:
(i) 	the Board had been of Mrs Hedden’s view on the issue of contact, or 
(ii) 	the Board had been of a different view to the local authority on the issue of contact, or 
(iii) 	the Board had been of the view that the court was not being fully and properly informed of the problems and difficulties relating to contact and the reasons for the conclusion reached thereon by those applying for, or supporting, an adoption order
the Board would, and should, have taken steps to ensure that its views were known by the court.

44	In our judgment, and having regard to:
(i) 	its primary role of assisting and supporting the proposed adoptive parents which, in our view, would include supporting and assisting them in respect of the stance they should take relating to contact, and
 (ii) 	its participation in respect of the issues that arose concerning contact, 
if the Board had disagreed with the local authority on the approach to be taken to contact, or on the actual contact that should take place between the children and their mother, or on the overall question whether adoption with the proposed level of contact best promoted and safeguarded the welfare of the children, it could (and albeit that it may not have been subject to an enforceable duty to do so, probably should) have taken steps to ensure that its views were taken into account in the decision making process of the relevant decision makers namely:
	(a) 	the local authority, and
	(b)   	the court.

45	As appears from paragraph 44(i) in our judgment the basis upon which the Board and thus the Employment Tribunal proceeded namely that part of Mrs Hedden’s (and thus the Board’s) role was to take part in the discussions and approach relating to contact, correctly reflects the role of the Board.  In our judgment paragraph 44(ii) and thus the participation of Mrs Hedden in such issues confirms that this was part of the Board’s role.

46	The aim of the Board would have been to have its views taken into account and to seek to have them adopted, but not to dictate what should happen. If its views were not adopted by the local authority, or the court, the aim and wish of the Board would have been to ensure (i) that the factual matters upon which its views were based were known to the local authority and the court, and (ii) that reasons were given for the course recommended and adopted.

47	So far as the local authority is concerned the Board (i) could have made its views known in general day to day discussion and at reviews pursuant to s. 26 Children Act 1989 and the regulations made thereunder (the Review of Children’s Cases Regulations 1981 (SI 1991/895)) which were attended by representatives of the Board, or (ii) it could have sought to have made a complaint under the Representations Procedure (Children) Regulations 1991 (SI 1991/894) and in reliance on s. 26(3)(e) Children Act 1989 and regulation 2 (the definition of complainant) of those Regulations.  In our judgment, the local authority should have accepted, and it is likely that it would have accepted, that the Board had a sufficient interest to make such a complaint particularly because of its participation in the reviews (see also s. 22(4)(d) and regulation 7 of SI 1991/895).

48	So far as the court is concerned it could have been fully informed by one or all of the local authority, the reporting officer or the guardian (if one was appointed).  The possibility also existed of the Board seeking to be added as a respondent.

49	The issue that arose here was that it was an employee of the Board (Mrs Hedden) who did not agree with the approach and decisions being taken by the local authority (with whom the Board agreed following its removal of Mrs Hedden’s from the placement) on issues relating to contact (which we shall hereinafter refer to as the “Contact Issues”). The question therefore arose as to what, if any, of the routes open to the Board (if it had  been of the same view as Mrs Hedden) could she, as an employee of the Board who had been involved in the placement, take to have her views as to the Contact Issues taken into account by the relevant decision makers (i.e. the local authority and the court).  

50	Put another way, the question arose having regard to the inter-relationship of the Family law background and Employment law as to what steps, if any, the Board could properly take to prevent Mrs Hedden from seeking to have her views on the Contact Issues made known to the relevant decision makers (i.e. the local authority and the court) after the Board as Mrs Hedden’s employer had removed her from further day to day participation in the placement.

51	In our judgment having regard to:
	(i)	the Family law background,
	(ii)	the difficult questions that arose in respect of the Contact Issues,  
	(iii)	the underlying need of all involved with the placement to consider and seek to safeguard and promote the welfare of children placed for adoption, 
	(iv)	Mrs Hedden’s involvement during the period that she was allocated to the placement with the Contact Issues, and
	(v)	the stance of the Board that in removing Mrs Hedden from day to day involvement with the placement it was not criticising her
Mrs Hedden was reasonably entitled to seek to take, and could not properly or reasonably be prevented by the Board from taking, all steps reasonably open to her to seek to ensure that her views on the Contact Issues, and more importantly the facts and reasoning that had caused her to reach those views, were properly put before and taken into account by the relevant decision makers.

52	In our judgment until the point was reached that Mrs Hedden should have been reasonably satisfied that her views on the Contact Issues, and more importantly the facts and reasoning that had caused her to reach those views, would be properly put before, and taken into account by, the relevant decision makers:
	(i)	Mrs Hedden was reasonably entitled to pursue the steps open to her to seek to ensure that those matters were properly put before and taken into account by the relevant decision makers, and
	(ii)	Mrs Hedden could not properly or reasonably be prevented by the Board from doing so.

53	This conclusion is based on:
	(a) 	the strong public and private interests that decisions as to the future of children are made on a properly informed basis, and 
	(b)	the underlying need (in the public interest and the private interests of those involved) for all involved in the placement of children with a view to adoption whether as employers (and thus as corporate bodies, unincorporated associations or trusts) or employees to have regard to, and to seek to safeguard and promote, the welfare of  the children placed for adoption.

54	In our judgment those strong public and private interests found the conclusion that the individuals involved in such placements cannot be properly and reasonably prevented by their employers from taking steps to ensure that they as individuals are reasonably satisfied that their views, and more importantly their reasons for such views relating to the welfare of children placed for adoption, are made known to and taken into account by the relevant decision makers.  This conclusion is reflected in, and supported by, the provisions made for review of cases in s. 26 Children Act 1989.

55	This does not mean that Mrs Hedden (or another social worker in her position) could have reasonably demanded:
	(a) 	that they represent their views and reasoning personally to the relevant decision makers, so long as they were properly put to them, or
	(b)	that they remain allocated to the placement by their employer (here the Board).

56	The steps open to Mrs Hedden included:
	(a)	discussion with and information being given to her by the Board and its officers and employees who were still involved in the placement,
	(b)	participation in reviews pursuant to s. 26 Children Act 1989 (e.g. the review that took place on 14 September 1995 which Mrs Hedden was invited to attend),
	(c)	seeking to make a complaint under the Representations Procedure (Children) Regulations 1991 in reliance on s 26(3)(e) Children Act 1989 and regulation 2 (the definition of complainant) of those Regulations, and
	(d)	in our judgment as a very last resort seeking to have herself added as a respondent to the adoption proceedings.

57	A pragmatic course open to the Board and Mrs Hedden was for the Board to take steps to:
	(a)	properly inform Mrs Hedden of the steps and decisions taken by the local authority (with the agreement of the Board) as to the Contact Issues together importantly with the factors taken into account in respect of, and the reasons for, such steps and decisions, and
	(b)	provide assurances to Mrs Hedden that the guardian ad litem (if one was appointed) the reporting officer and the court would be made aware of the history of the placement, the facts and reasons for her view on the Contact Issues and the facts and reasons for the view of the local authority (and the Board) on the Contact Issues.
The information referred to in (a) could be quite wide range and for example could include the fact that there had been discussions with the mother (who retained parental responsibility) and further investigation into the child’s wishes and feelings.   Issues of confidentiality might arise in respect of some of the information that was relevant to the decision making process of the local authority but in our judgment it is likely that these could have been overcome.

Miscellaneous Family Law Points

58	During the course of her submissions Mrs Hedden raised other family law points.  We comment on some of them in Part C of the schedule to this judgment.

The Decision of the Employment Tribunal and our jurisdiction

59	As appears from paragraph 11 of the Extended Reasons the Employment Tribunal apply s. 98 Employment Rights Act 1996. There is no dispute as to the two reasons advanced by the Board for the dismissal.  The appeal relates to the conclusion in paragraph 13 of the Extended Reasons that the dismissal for the reason set out therein was fair.  The Employment Tribunal clearly (and correctly) had s. 98(4) Employment Rights Act 1996 in mind when they reached that decision.  Thus they had in mind the correct statutory test.

60	As this Tribunal pointed out at the preliminary hearing paragraph 13 of the Extended Reasons has to be read with paragraph 12 thereof.  It also has to be read in the context of the Extended Reasons as a whole and the findings of fact therein.  In particular the finding in paragraph 10 that:
She was asked, as she had been by the Chairman of the Board at the disciplinary hearings, whether she would cease the stand which she was taking on the issue of B’s contact with her birth mother.  She indicated that she was willing to do so only on conditions which the respondent reasonably concluded would require it to accept that the applicant’s primary duty as a social worker required her to have a continuing concern for child B and that in pursuing that concern she could act independently of her management.

is important to the reasoning and conclusion reached in paragraph 13.

61	It has been held on many occasions that a finding of an Employment Tribunal on the issue whether an employer acted reasonably or unreasonably in treating the reason in a particular case as a sufficient reason for dismissing an employee is a finding of fact.  Also the finding in paragraph 10 of the Extended Reasons cited above is a finding of fact. However in our judgment such findings go to judgmental issues at the heart of this case and therefore it is wrong to treat them as ones of primary fact (see, for example, Nottingham City Council v Amin Times 2 December 1999) and they can be challenged on the basis that:
	(a)	in reaching them the Employment Tribunal erred in law by applying the wrong approach by, for example, failing to take or to take properly into account a relevant factor, and further or alternatively
	(b)	the Employment Tribunal have failed to provide adequate reasons for their conclusion.

62	As to point (a).  An analogy can be drawn with the approach of this Tribunal to findings by an Employment Tribunal on the question whether an applicant is an employee because this has on a number of occasions also been described as a question of fact.  The approach of the Tribunal (and the Court of Appeal) on an appeal from such a finding is set out, for example, in Nevermere (St Neots) Ltd v Gardiner [1984] ICR 612 at 621G to 622A where Stephenson LJ says:
This court therefore has to do what the appeal tribunal should have done: apply Edwards v Bairstow ---------- and to decide whether the industrial tribunal misdirected itself in law or reached a decision which was unreasonable to the point of perversity.  We must not ourselves decide what is the right inference to draw from the facts as found so as to determine the true nature of the arrangement because we may be in that “grey area” ------------------ where it may be a contract or service or a contract for services and either the majority opinion of the minority opinion of it may come “within the band of possible reasonable decisions” which precludes a court from judging whether they are right or mistaken ------------ 

This is a recognition of an approach to an appeal from a decision as to which there is room for two reasonable decision makers to reach different results both of which are reasonable (see for example the point made in the Haddon case at [1999] IRLR page 676 paragraph 24).

63	As to point (b), in our judgment in considering whether the Extended Reasons contain a sufficient account of the facts and of the reasoning of the Employment Tribunal we should read them benevolently, as a whole, not use a toothcomb, and not isolate particular phrases or passages.  Further, our starting point should be that unless the Extended Reasons show the contrary an Appeal Tribunal should conclude that an Employment Tribunal did not err in law in the sense that it incorrectly applied the relevant law by, for example, asking itself the wrong question or failing to take into account a relevant factor.  In so stating we have borne in mind  the following cases:

(i)	 Hollister v National Farmers’ Union [1979] ICR 542 in particular at 552H to 553D, which is in the following terms:

“There is only one other matter to which I would refer.  In these cases Parliament has expressly left the determination of all questions of fact to the industrial tribunals themselves.  An appeal to the appeal tribunal lies only on a point of law:  and from that tribunal to this court only on a point of law.  It is not right that points of fact should be dressed up as points of law so as to encourage appeals.  It is not right to go through the reasoning of these tribunals with a toothcomb to see if some error can be found here or there – to see if one can find some little cryptic sentence.  I would only repeat what Lord Russell of Killowen said in Retarded Children’s Aid Society Ltd v Day [1978] ICR 437, 444:
‘I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point or breach has overlooked it, and care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and the oral evidence have taken a different view from that of the industrial tribunal, searching around with a fine toothcomb for some point of law.’
It does seem to me that in this particular case, if one does not use a toothcomb, if one looks at the findings of this tribunal broadly in accordance with what they have said, it is found that there was a substantial reason for this dismissal.  Not only was there a substantial reason, but in the circumstances of the case the employers acted reasonably in treating it as a substantial reason having regard to equity and the substantial merits of the case.  Therefore the dismissal was fair.  
I would reverse the appeal tribunal and restore the decision of the industrial tribunal.”

This citation therefore adopts the citation from the Day case of the Judgment of Lord Russell, and

(ii)  	Jones v Mid Glamorgan County Council [1997] ICR 815 in particular at 826D where Lord Justice Waite says this:

“The guiding principle, when it comes to construing the reasons of an industrial tribunal at an appellate level, must be that, if the tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence, the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate the conclusion unless the relevant words admit of no explanation save error of law.”

	(iii)	Hampson v Department of Education and Science [1989] ICR 179 in particular the first paragraph in the headnote at page 180 which is in the following terms:

“When considering whether the imposition of a condition was ‘;justifiable’ within the meaning of section 1(1)(b)(ii) of the Race Relations Act 1976 industrial tribunals, applying an objective test, had to balance the discriminatory effect of the condition against the reasonable needs of the person who applied the condition; that only if the discriminatory effect could be objectively justified by those needs would the condition be ‘justifiable’; that in reaching their decision on that issue, the tribunal had to give full reasons sufficient to explain to the parties why they had either lost or won; that as the tribunal had failed to identify the standards by which they are testing the Secretary of State’s justification of the condition or to make any findings comparing the applicant’s courses with the domestic one, their reasons were deficient; and that, accordingly, their decision on the conditions applied by the Secretary of State could not be upheld.”

and at  pages 192 G to 193 D:
“The finding of justifiability
Procedure in the industrial tribunal is governed by the Industrial Tribunals (Rules of Procedure) Regulations 1985 (S.I.1985 No.16) which came into force on March 1985.  The rules of procedure are set out in Schedule 1 to the Regulations and rule 9 is concerned with the decision of the tribunal.  Rule 9(3) provides that the tribunal shall give reasons, which may be in full or in summary form, for its decision.  Rule 9(5)(a) provides that where the proceedings before the tribunal involved the determination of an issue arising under, inter alia, the Race Relations Act 1976, the reasons shall be recorded in full in a document signed by the chairman.  Rule 17(9) requires that, in proceedings under the Race Relations Act, a copy of the decision shall be sent to the Commission for Racial Equality.  This is because the decision in such proceedings may well have an effect not limited to the parties alone.  Thus there are sound policy reasons for the requirement that in such cases the decision shall record the reasons in full.
In its differentiation between full and summary reasons the 1985 Rules of Procedure amended the previous Industrial Tribunals (Rules of Procedure) Regulations 1980 (S.I.1980 No.884) which only required that the decision of a tribunal should be recorded in a document which should contain the reasons for the decision.  There is no reported decision on the meaning of ‘full reasons’ under rule 9 of the Rules of 1985, but I derive considerable assistance from the decision of this court in Meek v City of Birmingham District Council [1987] IRLR 250, and in particular from the following passage, at p.251, from the leading judgment of Bingham LJ with which Sir John Donaldson MR and Ralph Gibson LJ agreed, in relation to the rule in its original form:
‘It has on a number of occasions been made plain that the decision of an industrial tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts.  The parties are entitled to be told why they have won or lost.  There should be sufficient account of the facts and of the reasoning to enable the Employment Appeal Tribunal or, on further appeal, this court to see whether any question of law arises; …’.”

(iv)	High Table v Horst [1998] ICR 409 in particular at page 420 E to F, where after citing from the Meek case, Peter Gibson LJ says this:

“However, in considering whether the reasons given by an industrial tribunal comply with its statutory obligation, it is very important to keep in mind the issues which the industrial tribunal was dealing with.  It has, of course, to reach conclusions on the issues which the statute raises, viz. in the present case, have the employers established that the reason for the dismissals was redundancy and, if so, did they act reasonably in treating the redundancy as a sufficient reason for dismissing the employees?  But, whilst it must consider all that is relevant, it need only deal with the points which were seen to be in controversy relating to those issues, and then only with the principal important controversial points … .”

In the Hampson case Balcombe LJ cites the well known case of Meek v City of Birmingham District Council [1987] IRLR 250 and (should authority be needed for it) the Hampson case establishes that the cases referred to in subparagraphs (i) and (ii) above should be read and applied in the light of the Meek decision and the Horst decision.  

Errors of Law

64	In our judgment one of the circumstances of this case which the Employment Tribunal were bound as a matter of law to take into account pursuant to s. 98(4)(a) and (b) was the Family law background in assessing:
(i)	the reasonableness of the conduct of the Board and Mrs Hedden in the circumstances including the stance taken by the Board to the disciplinary process and the dismissal (see paragraphs 22 and 23 hereof), 
(ii)	the reasonableness of the Board’s decision to dismiss Mrs Hedden, and
	(iii)	the equity and the substantial merits of the case.
Point (i) leads up to, and provides background to points  (ii) and (iii) which reflect s. 98(4)(a) and (b).  These points, and thus the need to take into account the Family law background when considering them, relate to the overall conclusion of the Employment Tribunal and the finding in paragraph 10 of the Extended Reasons set out above.

65	At this stage we repeat our comments in paragraph 24 hereof.

66	As appears from paragraph 21 hereof in our judgment a fair reading of the Extended Reasons shows that the Employment Tribunal failed to have regard to, or proper regard to, the Family law background.  In our judgment this failure is an error of law and has the consequence that the conclusion reached by the Employment Tribunal that Mrs Hedden was not unfairly dismissed is flawed.

67	In our judgment the Family law background is an important and relevant factor (i) in the overall assessment of the matters mentioned in s. 98(4)(a) and (b) Employment Rights Act 1996 both as to substantive and procedural fairness, and (ii) in respect of the internal inconsistency identified by this Tribunal (chaired by HH Judge Hull QC) on the preliminary hearing.   

68	Further or alternatively, in our judgment the Employment Tribunal have erred in law in failing to provide adequate reasons for their conclusion in paragraph 13 of the Extended Reasons having regard to their conclusion in paragraph 12 thereof.  The internal inconsistency identified by this Tribunal on the preliminary hearing is relevant to this error.  Further, in our judgment, a part of this error of law, and a factor that is relevant to this inconsistency, is the failure of the Employment Tribunal to include reference to the Family law background  in their reasoning.

Further comments on the errors of law

69	There were two elements to the conduct relied on by the Board to establish the reasons for their dismissal of Mrs Hedden, namely:
	(a)	her communications with, her conduct towards and in the presence of the proposed adoptive parents and the children and her intentions as to continuing contact with the proposed adoptive family, and
	(b)	her communications with the Board, her complaints to and her intentions as to further contact with third parties such as the local authority, the SSI and the court,
after she had  been removed from day to day involvement with the placement. These two elements give rise to different issues but should be looked at cumulatively and having regard to each other.  

70	As we have explained in our view the Family law background does not warrant (i) behaviour relating to either of the elements of such conduct that was, or would be (or would be likely to be) distressing to the proposed adopters (save to the extent that reasoned and calm discussion as to the Contact Issues with those still involved on a day to day basis with the placement, or Mrs Hedden saying goodbye in an appropriate manner, would have this effect), or (ii) continuing personal contact between Mrs Hedden and the proposed adopters.  Rather the Family law background demonstrates the need for such reasoned and calm discussion and supports the view that Mrs Hedden could reasonably have taken steps to seek to ensure that she was satisfied that her views on the Contact Issues, and more importantly the reasons for them, were properly taken into account by the relevant decision makers (i.e. the local authority and the court).

71	In our judgment it follows that in determining the reasonableness of the respective conduct of the Board and Mrs Hedden (and for example the finding in paragraph 10 of the Extended Reasons) set out above:
(a)	the Family law background needs to be taken into account, and
(b)	the extent and relevance of the two elements of Mrs Hedden’s conduct referred to in paragraph 69 above to the reasons advanced by the Board for dismissing Mrs Hedden also need to be taken into account.

72	The reason dealt with in paragraph 12 of the Extended Reasons relates exclusively to the second element because it relates only to her complaints to the local authority and SSI.

73	The reason dealt with in paragraph 13 of the Extended Reasons relates, or potentially relates, to both elements.  It is however not clear to us from the Extended Reasons the extent to which the Employment Tribunal considered that the first element namely Mrs Hedden’s contact with the proposed adopters since August 1995 and her intended future (and independent) contact with them was a factor in the reasoning and conclusion reached by the Board.  However it is clear from the following extract from paragraph 13, namely:
Statements made by the applicant to her managers and others in correspondence put before us makes it entirely clear that she fully intended to pursue with the external agencies on behalf of Child B that child’s rights as enshrined in the relevant sections of the Children Act 1989 as she construed them with the benefit of professional advice.  She made her position in that respect equally clear in the course of disciplinary proceedings namely that she had a responsibility to pursue with the Social Services Directorate the issue of Child B’s contact with her birth mother given that the line that she was advocating on that issue was contrary to that being jointly taken by the Devon Social Services Department and the agency.  She made equally clear before the standing committee that she believed that she must act independently of the agency in pursuing that issue which she perceived to be a matter of duty and conscience.   It was that attitude that led the respondent to the view that it could not in future have confidence that the applicant would not seek to act independently of the agency in any other case assigned to her and that it was reasonable to dismiss her for that reason.   We agree.

that complaints to external agencies (and thus the second element of her conduct) was a factor therein.  This passage focuses on complaints to external agencies rather than any approach to, or personal contact with, the proposed adopters.

74	In paragraph 12 the Employment Tribunal conclude that the complaints made by Mrs Hedden on the Board’s notepaper to do not warrant her dismissal.  It might be said that this conclusion had implicit regard to the Family law background but in our judgment that would not be a fair reading of the Extended Reasons.  Indeed in our judgment the emphasis in paragraph 12 on warnings and the fact that the Board was negotiating a fresh contract with the local authority are a further indication that the Employment Tribunal did not have regard to the Family law background but assessed the case by reference to the general relationship between an employer and an employee.   In our judgment if the Family law background had been taken into account it would have been another factor in favour of the conclusion reached by the Employment Tribunal in paragraph 12 and would have been relevant to their expressed view that this aspect of Mrs Hedden’s conduct  should have been treated as serious misconduct. 

75	It follows that in our judgment the failure of the Employment Tribunal to have regard to the Family law background is an error of law that is relevant to paragraph 12 as well as to paragraph 13 and the finding set out above in paragraph 10 of the Extended Reasons.

76	In our judgment this error of law is compounded by the fact that in his report Mr Stanton asserted that it seemed that Mrs Hedden could have been acting outside the law in relation to the Adoption Act and the Children Act. 

77	Turning to paragraph 13 of the Extended Reasons, as the extract therefrom set out in paragraph 73 above shows that Mrs Heddens’ intention to pursue her points with external agencies was a part of the reasoning of (i) the Board, and (ii) the Employment Tribunal in reaching their findings in paragraphs 10 and 13 as to Mrs Hedden acting independently of the Board.  We repeat that in our judgment an important factor in the consideration of the respective positions of the Board and Mrs Hedden in respect of such communications is the Family law background.  We add that in this context:
(a)	the fact that Mrs Hedden’s complaint to the local authority was not being dealt, and 
(b)	the lack of any findings and any clear indication in the papers before the Employment Tribunal that Mrs Hedden was being provided with any, or any detailed information, as to the steps taken and intended to be taken in respect of the Contact Issues and the reasons for those steps,
are relevant.

78	Also, in our judgment, the reference in paragraph 13 to the fundamental importance of trust and confidence in the area of social work and the very sensitive issues that arise in connection therewith is another indication that the Employment Tribunal did not have regard to the Family law background, the  public and private interests that arise in respect thereof and the relevant review and complaint procedures.  That is of course not to say that trust and confidence between employers and employees is not of great importance in the field of social work but the Family law background introduces the issues we have referred to earlier concerning what instructions an employer may reasonably and properly give to an employee not to advance a point of view in good faith as to what would best promote the welfare of a child. 

79	We now turn to the correlation between paragraphs 12 and 13 and the adequacy of the reasoning in paragraph 13.

80	As we have explained a substantial element of the express reasoning in paragraph 13 relates to the complaints made by Mrs Hedden to external agencies and her intention to continue to  pursue the Contact Issues with external agencies.  In our judgment given (i) that the Employment Tribunal decide in paragraph 12 of the Extended Reasons that the making of such complaints did not warrant dismissal, and (ii) that the Employment Tribunal recognise that Mrs Hedden made such complaints and was taking her stance as to her future actions in pursuance of what she believed to be her responsibilities, the conclusions reached in paragraphs 12 and 13 are inconsistent and inadequately explained.  For example:
(1)	It is not explained why a continuation  of the existing complaint or the institution of a new complaint to the same external agencies destroys trust and confidence, and	
(2)	it is not explained why the problems that had arisen relating to this placement and the Contact Issues had the effect that in other cases the Board could reasonably have concluded that it did not have any confidence that she would not act outside the control of the Board.  
As to these points we accept that the answer might be that by the time of, and during, the disciplinary hearings there was a clear indication or instruction from the Board that Mrs Hedden should not act independently and she was asserting a right to do so, but this is not stated and in any event if that was the reasoning the Family law background would have to be taken into account.  

81	Further as to the point in paragraph 80 (2) we accept that part of the reasoning may have been based on Mrs Hedden’s communications with and conduct towards the proposed adopters, but again this is not stated.  This element of Mrs Hedden’s conduct may also have prompted the references towards the end of paragraph 13 of the Extended Reasons to the importance for trust and confidence but  again this is not stated and in our judgment paragraph 13 of the Extended Reasons read in the context of the Extended Reasons as a whole does not adequately explain the extent to which this element of Mrs Hedden’s conduct was taken into account.

82	Finally under this heading we mention that in their written submissions the Board relied on Bouchaala v Trust House Forte [1980] ICR 721 to support a submission that even if the Board was wrong in its view of the law the issue would remain whether its view was reasonable.  In that case the employer had been incorrectly advised that it would be illegal to continue to employ the Appellant and it was held that this genuine belief  could be “some other --- reason” for a dismissal.  The facts are therefore very different to those in this case.  Here the Board was not relying on, or advancing, any particular view of Family law (or other law) either  as one of the reasons for dismissing Mrs Hedden, or in support of an argument that in dismissing Mrs Hedden the Board acted reasonably.  We therefore do not understand what view of the law is being referred to in this submission of the Board.  As appears above we agree that a key issue is whether the Board acted reasonably and that in assessing that the Family law background should be taken into account.  As to this the advice received by the Board and its views on the position at Family law was not put before the Employment Tribunal (or if it was it was not dealt with by them) nor, as we understand it was it put to Mrs Hedden during the disciplinary process conducted by the Board.

Brief Overview

83	Although a number of points were raised and argued on this appeal, and this judgment is lengthy, a central point is that, in our judgment, the absence of a proper consideration by the Employment Tribunal of the Family law background and its effect has the consequence that the conclusions of the Employment Tribunal on the issues whether:
	(a)	the stance taken, and the conclusions reached by the Board, relating to the Contact Issues and Mrs Hedden’s stand or position in respect of them was reasonable or unreasonable, 
	(b)	action taken by Mrs Hedden in respect of the Contact Issues, and the stance adopted by Mrs Hedden to questions put by the Board relating to the Contact Issues, were reasonable or unreasonable, and
	(c)	the decision of the Board to dismiss was fair or unfair having regard to conclusions (a) and (b) and the other relevant circumstances.
 are flawed in law. 

Conclusion on the appeal against the finding that Mrs Hedden was not unfairly dismissed

84	This appeal is allowed and we remit this issue to the Employment Tribunal.

85	The reasons for allowing this part of the appeal appear above and in our judgment they do not give rise to the need for the Employment Tribunal to start afresh and rehear all the evidence.  In our judgment what is needed is for the existing findings to be reconsidered, or expanded, having regard to the Family law background.  This is only relevant to some of the findings.  

86	The remission is therefore a limited one and the Employment Tribunal should only hear oral evidence to the extent that they conclude it is appropriate for them to do so to have proper regard to the Family law background.  This will be a matter for their judgment and discretion but we would suggest that it would probably be of assistance if the parties were directed to draw up a list of the findings in the existing Extended Reasons which should form the basis for the further consideration of this case.  In our judgment this should include all (or substantially all) of the findings in paragraphs 4 to 9 inclusive of the Extended Reasons.  When these paragraphs are read together with the bundle of documents a clear picture of the background is provided and in this respect we hope that the chronology we have prepared will also be of assistance.

87	Naturally it is difficult to be precise as of the extent of further oral evidence that should be heard to ensure that the issue is dealt with fairly.  But in our judgment the decisions made by the Employment Tribunal as to this should be made having regard to the limited nature of our remission to the Employment Tribunal.  As to this:
(a)	we refer the Employment Tribunal to the decision of the  Court of Appeal in Aparau v Iceland Frozen Foods in an appeal heard on  29 October 1999. The leading judgment in that case was given by Moore-Bick J and in it he says (amongst other things):

“The effect of an order remitting a case to a tribunal which had otherwise exhausted its jurisdiction was considered by this court in the context of arbitral proceedings in Interbulk Ltd v Aiden Shipping Co Ltd (The ‘Vimeira’ (No.1)) [1985] 2 Lloyd’s Rep. 410.  Ackner L.J. pointed out that the extent to which the tribunal’s jurisdiction is revived in consequence of an order remitting the matter to it depends entirely on the scope of the remission.  If, as occurred in the present case, the matter is remitted for the tribunal to consider certain specific issues, it will have no jurisdiction to hear or determine matters outside the scope of those issues and it must follow that it has no power to allow one party to amend its case to raise issues which were not previously before it.  In the present case it is clear from the passages in the judgment of the Employment Appeal Tribunal to which I have already referred that remission was ordered in very limited terms simply to enable the industrial tribunal to reconsider whether Iceland’s new terms of employment had been accepted by Mrs Aparau.  That being so, the tribunal did not by virtue of the remission have jurisdiction to reopen the case generally, nor did it have jurisdiction to hear or determine any argument on the part of Iceland relating to the fairness of any dismissal.  Although Mr Glennie sought to persuade us to the contrary, I for my part am quite satisfied that that was not an issue which had previously been raised in the proceedings and it was certainly not within the scope of the remission.”
and
	(b)	Section 35 of the Employment Tribunals Act 1996 which provides as follows:

“35  Powers of Appeal Tribunal
(1)  For the purpose of disposing of an appeal, the Appeal Tribunal may –
(a)	exercise any of the powers of the body or officer from whom the appeal was brought, or 
(b)  remit the case to that body or officer
(2)  Any decision or award of the Appeal Tribunal on an appeal has the same effect, and may be enforced in the same manner, as a decision or award of the body or officer from whom the appeal was brought.”

In our judgment on the proper construction of section 35 the Employment Appeal Tribunal may remit part of a case, and thus specific issues within a case, to an Employment Tribunal, and this is confirmed by the decision in the Aparau case. 

88	Having regard to the reasons for allowing this appeal, and the limited nature of the remission, we have concluded that if it is practical to do so within a reasonable period of time the issue of unfair dismissal should be remitted to an Employment Tribunal made up of the same (or as many as is practical of the same) people as heard the claim originally.

The Breach of Contract Claim

89	In our judgment on a fair reading of the judgment of this Tribunal on the preliminary hearing and the judgment of the Court of Appeal on the appeal therefrom their effect was to dismiss Mrs Hedden’s appeal against the dismissal by the Employment Tribunal of her breach of contract claim albeit that this claim is not expressly mentioned in those judgments.  We reject Mrs Hedden’s submission that when the judgment of this Tribunal is read alone, or with the judgment of the Court of Appeal, the last sentence of the judgment of HH Judge Hull QC, namely:
“Of course you can refer to any other matters which you want to but you would be well advised to have a lawyer”

means that she was given permission to pursue her appeal against the dismissal of her breach of contract claim.  Indeed such a construction of this sentence flies in the face of the point made on the previous page that:
“The only point on which we give leave to appeal is the one I have indicated.” 

90	However because the appeal against the dismissal of her breach of contract claim was not expressly struck out we allowed Mrs Hedden to address us on it.

91	We shall deal with this appeal far more shortly.  

92	In our judgment the Employment Tribunal did not err in law in dealing with it.  Mrs Hedden’s  breach of contract claim was that at the point of her dismissal by the Board it was in breach of the express and implied terms of Mrs Hedden’s contract of employment (see the originating application at page 13 of the particulars of her complaint).  Therefore the claim was not based on her dismissal (which was on notice with payment in lieu) and related primarily to the period after her removal from the placement (and thus from 10 August 1995 onwards).  Further in support of the claim it was alleged that (a) the manner in which the investigation by Mr Stanton and the disciplinary process was carried out, (b) the lack of supervision of Mrs Hedden by the Board and, in particular, as we understood it the failure of the Board to advise her on Family law or to give her access to advice from a specialist in family law, and  (c) the Board’s opposition to her making complaints to the local authority and the SSI constituted breaches of her contract of employment or attempts to vary it unilaterally. 

93	We accept that the Board was opposed to Mrs Hedden making complaints to outside agencies but the Employment Tribunal find that the Board did not give her an explicit instruction or warning not to do so (see paragraph 12 of the Extended Reasons).  Given (i) that finding of fact, (ii) the point that the question referred to in paragraph 10 of the Extended Reasons was put at the disciplinary hearing on 10 April 1996 (and thus very near the end of the disciplinary process), and (iii) the finding of fact made by the Employment Tribunal in paragraph 16 of the Extended Reasons which covers:
(a)	the manner in which the grievance, investigation and disciplinary process was carried out generally, and therefore
(b)	Mrs Hedden’s points as to the identity and expertise of the Board’s legal advisers and the fact that a legal adviser was not made available to her by the Board (as to which we note (i) that it does not appear that Mrs Hedden asked for advice from such a legal adviser, (ii) that she attended the disciplinary meetings with a friend Mr Griffin, who is a solicitor and (iii) that she sought, and put to the Board, the views of Mr James on Family law points, which are contained in his paper dated 1 April 1996)
we reject Mrs Hedden’s arguments that the Board acted in breach of contract, or sought to unilaterally vary her contract.

94	Mrs Hedden’s arguments on this part of the appeal included her assertions that the Representation Procedure (Children) Regulations 1991 (SI 1991/894) applied to the Board and (as we understood her) that sections 61 and 62 Children Act applied.  As appears from Part C of the schedule hereto in our judgment they do not if the children were not being accommodated by or on behalf of the board.

95	In paragraph 41 hereof we record that we do not accept the assertion made to us by Mrs Hedden that the children were being accommodated by, or on behalf of, the Board.  It was not part of Mrs Hedden’s case that she had sought to establish this before the Employment Tribunal in support of her claim for breach of contract (or unfair dismissal) and they failed to make a finding on the point.  In our judgment:
(a)	if she had wanted to establish this as a fact underlying her breach of contract claim (or her claim for unfair dismissal) she should have done so at the hearing before the Employment Tribunal,
(b)	 the lack of any such finding does not amount to an error in law by the Employment Tribunal, and
(c)	the possibility (referred to in paragraph 41) that she can advance this point on the remission of the claim for unfair dismissal does not mean that we should also remit the breach of contract claim for further consideration in the light of this assertion (or otherwise).
The breach of contract clam was a separate (albeit connected) claim and in our judgment to succeed on it Mrs Hedden has to establish that the Employment Tribunal made an error of law in respect of it.

96	In any event in our judgment the questions whether the Representation Procedure (Children) Regulations 1991 (SI 1991/894) and sections 61 and 62 Children Act applied the Board make no effective difference to Mrs Hedden’s claims for breach of contract because:
(a)	the Board’s procedure to deal with complaints which was used in this case is very similar to that contained in those Regulations, and
(b)	Mrs Hedden’s general stance was that the local authority and the Board had acted and were acting in breach of duty particularly in respect of the Contact Issues and the inclusion of sections 61 and 62 (and thus the duties contained in them) as an additional basis for such assertions would not have altered their general effect.

97	We add that in our judgment our conclusion in respect of the claim for unfair dismissal that the Employment Tribunal failed to properly consider the Family law background does not constitute an error of law in respect of  Mrs Hedden’s claim for breach of contract because:
(a)	as we have explained the Family law background, and the position in this case having regard to it, does not support an argument that the Board acted in breach of Mrs Hedden’s contract by removing her from day to day participation in the placement and giving that responsibility to Mr Goodwin, and in any event the breach of contract claim is not based on that action but on the events that followed it,
(b)	different issues arise in respect of the two claims and in our judgment the failure of the Employment Tribunal to have proper regard to the Family law background is relevant to the issues raised by s. 98 Employment Rights Act 1996 (and in particular s. 98(4) thereof), and thus to reasonableness, equity and the substantial merits which are not issues that arise, or arise in the same context, on the breach of contract claim,
(c)	leaving aside Mrs Hedden’s argument as to the application of  the  Representation Procedure (Children) Regulations 1991 (SI 1991/894) which we have already dealt with, the Family law background as such does not affect Mrs Hedden’s contractual entitlement to have the investigation conducted in a particular manner, or pursuant to a particular procedure.  The issues relating to reasonableness and fairness in the conduct of the investigation are relevant to the claim for unfair dismissal rather than the claim for breach of contract, 
(d)	the Family law background is relevant to the Board’s views on, and opposition to, Mrs Hedden’s complaints to the local authority and SSI but in respect of the breach of contract claim the relevant point is whether the Board gave Mrs Hedden an instruction not to make complaints and it was found that it did not,
(e)	the general Family law background is not relevant to Mrs Hedden’s claim based on an alleged lack of supervision save in the sense that she may have sought advice or received supervision having regard thereto, and thus as to the underlying difference of opinion relating to the Contact Issues, and
(f)	more generally the underlying difference of opinion and approach of Mrs Hedden and the Board to the Contact Issues, and therefore their respective stances on Mrs Hedden’s complaints to outside agencies are relevant to and focused on the dismissal, the reason for it and whether it was fair rather than the claim for breach of contract existing at and before the point of dismissal.

98	Accordingly if we are wrong and Mrs Hedden’s appeal against the dismissal of her breach of contract claim has not already been dismissed we hereby dismiss it.