Appeal No. EAT/0764/01/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 October 2002

Before
HIS HONOUR JUDGE PETER CLARK
MRS C BAELZ

MR D NORMAN

THE GOVERNING BODY OF OLD LEAKE PRIMARY	APPELLANT
AND NURSERY SCHOOL

MR J R KIRK	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M I DINEEN
(Of Counsel)
and 
MR R MOORE
(Of Counsel)
Instructed by:
First Assist Group Ltd
Marshall’s Road
Sutton, Surrey
SM1 4DU

For the Respondent	MR J JUPP
(Of Counsel)
Instructed by:
Messrs Thimbleby Fisher
Solicitors
45 Silver Street
Coningsby
Lincolnshire
LN4 4SG	

JUDGE PETER CLARK

1.	This is an employer’s appeal against the decision of an Employment Tribunal sitting at Boston over six days, chaired by Mr J K Macmillan, promulgated with extended reasons on 10 May 2001, upholding the Applicant, Mr Kirk’s complaints of unfair dismissal and unlawful sex discrimination.  The Employment Tribunal went on to award him compensation and interest totalling £242,620.09

Background
2.	Following a long career in teaching the Applicant was appointed Headteacher of the Respondent’s primary school on 1 January 1994.  His tenure was a success.  He was respected by staff and parents.  OFSTED produced a glowing report on the school.  Then, on 6 June 1999, a telephone call was received by Childline, accusing him of indecent assault on pupils.  He was arrested by police and on 12 July he was suspended from his post.

3.	The Lincolnshire Police interviewed a number of children who had attended the school.  Fourteen of those interviews were recorded on video.  In the event, on 4 November 1999, a decision was taken by the Crown Prosecution Service not to prosecute the Applicant.

4.	Meanwhile the Respondent had appointed an investigation panel.  That panel interviewed a number of members of staff.  All supported the Applicant.

5.	Following the Crown Prosecution Service decision not to prosecute the Respondents had a choice.  Lift the suspension or proceed with the disciplinary investigation.  They chose the latter course.  The Police and Social Services expressed concern about the Applicant continuing in post.  A charge letter was sent to him, requiring him to attend a disciplinary hearing.  The specific charges were these:

•	Children (girls) sitting on your lap.

•	The placing of your hands on girl pupils’ necks and down the back of their blouse.

•	Visiting the home of a former female pupil, SS on a number of occasions, sending her birthday cards, birthday money and holiday postcards.

•	Giving money on a daily basis to at least one pupil, SS.

6.	The disciplinary hearing took place on 21 January 2000.  Mr Gresham, Chairman of Governors, who had been involved in the investigation, presented the case against the Applicant.  He was represented by solicitor and Counsel.  The case was heard by a panel of 3 governors, chaired by Mr MacDonald.

7.	The panel viewed some of the video interviews conducted by police.  They heard evidence from a police officer, PC Brennan and 2 representatives from the local Social Services Department, Mrs Horner and Mrs Crewe.  They also heard from the Applicant, who denied any wrongdoing.

8.	Following a full day of evidence the panel retired to consider their decision.  Their conclusions on the charges laid against the Applicant were read out at the end of the disciplinary hearing, from a hand written note.  They were as follows:

“The major difficulty in reaching a decision has been what we see as a failure of the Social Services and Police to complete a fully satisfactory investigation.  It is our intention to raise this matter with them.  We refer to the allegations point by point.

1.	Girls sitting on Mr Kirk’s lap.  We are unable to say on balance of probabilities that this occurred.

2.	Arms around the waist of girls and touching their bottoms.  We are unable to say on a balance of probabilities that this occurred.

3.	Hands on girl pupils’ necks and down the back of their blouses.  Mr Kirk admits that has happened (in relation to the touching of children’s necks).  Hands down the back of blouses.  We are unable to say on balance of probabilities that this occurred.

4.	Visiting the home of S, sending and giving money and writing cards with words “Love from Mr Kxxx” was “unwise””

9.	Based on those findings the panel’s decision is recorded in that written note in these terms:

“It is apparent that Mr Kirk’s assessment of risks that existed within the school in relation to behaviour between teachers and pupils did not reflect the risks that are now perceived in modern society.  This also is reflected in the touching of shoulders which, in the panel’s view, can be avoided by simple verbal instruction.

In considering what further action to take, we have been mindful of the advice given by the Social Services.  We find Mr Kirk is guilty of gross misconduct in failing to ensure the School’s policies and procedures with regard to behaviour and relationships between teachers and pupils has not been maintained at a satisfactory level.  We clearly see the duty to maintain such procedures as a key facet of the role of head teacher and do not have the trust and confidence in his ability to remedy this situation and therefore have no alternative than to dismiss Mr Kirk from his post as headmaster.”

10.	The Employment Tribunal gained some insight into the panel’s decision making process from the evidence which Mr MacDonald gave to them.  Based on that evidence they made the following findings of fact:

Mr MacDonald agreed that the first allegation amounted to no more than the gentle and routine placing of hands on children’s shoulders which, if he had witnessed it, he would have regarded as entirely innocent.  It seems that Social Services had pointed out to the panel that such behaviour, if unwanted by the child, amounted to abuse if persisted in.  He accepted that there was no evidence that any child had complained about this so, the Employment Tribunal found, the Applicant could not be said to have been abusing the children on the Social Services definition.

11.	A feature of Mr MacDonald’s evidence, the Employment Tribunal noted, was that the panel relied entirely on advice from Social Services.

12.	The Applicant accepted that he had sent 2 postcards, a birthday card and a card which might have been a gift token to SS.  That was perceived by the professionals, particularly PC Brennan, as evidence of ‘grooming’ the child, an expression commonly used to describe preparatory acts of a paedophile.  The panel concluded that to do so was ‘unwise’.  The allegation that the Applicant gave money to SS was specifically abandoned by Mr Gresham during the disciplinary hearing.

13.	As to visiting SS at her home, Mr MacDonald accepted that the purpose was to resolve her computer problems, and done at her mother’s request.  The Applicant was being helpful.  Additionally, it was accepted by Mr MacDonald that the Applicant, in giving SS a lift to school in his car (not forming part of the specific charges against him) in the remote area of Lincolnshire from which the school drew its children, was doing no more than other teachers did.

14.	It seems that a majority of the panel were for giving the Applicant a warning and directing him to change his ways.  However no suitable form of words could be found and so, having, as the Employment Tribunal found, abdicated their responsibility in the light of the advice received from Social Services, the panel decided to dismiss him, on 21 January, that dismissal taking effect on 3 February 2000.

15.	The Applicant had a right of appeal to a differently constituted panel of Governors.  Acting on his solicitor’s advice he did not appeal.  That was a reasonable course to take, so the Employment Tribunal found, for the reasons set out at paragraph 20 of their Extended Reasons.

16.	The Applicant’s solicitor sought written reasons for the dismissal.  These were supplied by Mr MacDonald under cover of a letter dated 1 February.  We have read them.

17.	Those reasons differed materially in certain respects from those recorded in the hand written note and read out on 21 January.

The Employment Tribunal Decision
18.	The Employment Tribunal stopped the case at the conclusion of the Respondent’s evidence.  They invited Mr Dineen, Counsel for the Respondent, to address them.  Having heard his submissions they did not call on Mr Metcalf, Counsel for the Applicant.  They upheld both complaints for the following reasons:

Unfair Dismissal
Even if the 3 stage Burchell test was satisfied no reasonable employer could conceivably have felt that any disciplinary sanction, let alone dismissal, was warranted for the matters which, according to Mr MacDonald formed the reasons for dismissal.  In the well-know phrase, dismissal fell outside the range of reasonable responses open to the employer.  See Post Office v Foley [2000] IRLR 827.  The dismissal was unfair.

19.	Further, on their findings of fact, the Employment Tribunal concluded that the Applicant had not contributed to his dismissal by his own conduct.

Sex Discrimination
The Employment Tribunal deal with the Applicant’s complaint of unlawful sex discrimination principally at paragraph 12 of their reasons.  We should set out that paragraph in full:

“12.	It was inevitable, once Mr MacDonald had given his evidence, that the complaint of unfair dismissal must succeed.  The complaint of sex discrimination also succeeds.  There has been comparatively little evidence on this point.  Some witnesses conceded that had this been the case of a female head teacher less concern would have been felt.  Some have not made that concession but we reject their denials as incredible.  Mr Metcalf’s case is quite simply that it is self-evidently the case, a matter of common sense, that a headmistress either would not have been disciplined or would have received little more than a cautionary word.  Mr Dineen submits that it is not for us to use our experience of the ways of the world, he delicately avoided the use of the word wisdom, to act as the industrial jury in the absence of some evidence enabling us to do so.  In the absence of such evidence we would not be able to do so.  But there is such evidence.  We are invited by Mr Metcalf to draw the appropriate inference from it.  We do so.  Mr Kirk has been treated less favourably on the grounds of his sex than a comparable woman head teacher would have been treated, whether the true comparator be a head mistress and male pupils or a head mistress and female pupils.”

Remedy
Since only one point is taken on the actual computation of the award in this appeal it is unnecessary to set out the Employment Tribunal’s approach leading to the making of that award.  We deal with that point when considering the grounds advanced in support of this appeal and further on the issue of causation.

The Appeal

It is convenient to take Mr Dineen’s submissions under the following headings and in the following order:

(1)	Unfair Dismissal
Underpinning Mr Dineen’s attack on the Employment Tribunal’s finding that dismissal in this case fell outside the range of reasonable responses open to a reasonable employer is the proposition that s.98(4) of the Employment Rights Act 1996 requires the Employment Tribunal to look at all the circumstances in which the dismissing employer was operating; those circumstances in this case include the fact that the employer had received advice from professionals, the Police and Social Services, that the sending of cards by the Applicant to SS showed ‘grooming’ in the sense we have understood the expression; a joint statement of concerns from Police and Social Services and a letter from Social Services dated 10 December 1999 expressing their concerns over the Applicant’s conduct and his continuing as headteacher of the school and that in these circumstances the Employment Tribunal was bound to find that the decision to dismiss was within the range of reasonable responses.  To find otherwise was a perverse conclusion, applying the dicta of Mummery P in Stewart v Cleveland Guest Engineering Ltd [1994] IRLR 440 and the approach of the Court of Appeal recently in Yeboah v Crofton [2002] IRLR 634.

In our judgment that submission is fundamentally misconceived.  Of course the Employment Tribunal was bound to take into account, as part of the relevant circumstances, the views expressed to the Respondent by those agencies.  Having done so, based on Mr MacDonald’s evidence, the Employment Tribunal concluded that the disciplinary panel of the Respondent did not adopt those agencies’ view of the underlying facts on which those opinions were based.  They accepted the Applicant’s factual account of his conduct.  They rejected, as not proven, allegations of actual abuse of children (particularly the first 2 disciplinary charges) and as to the suggestion of grooming SS they found, instead, merely that the Applicant had been unwise in sending communications to SS.  It was that set of facts or beliefs which formed the Respondent’s reason for dismissal, and it was the reasonableness of dismissal for that reason which the Employment Tribunal was required to judge.  Looked at in these terms, in accordance with s98(4), their finding that dismissal fell outside the range of reasonable responses was, in our judgment, a permissible finding.

(2)	Admissibility of evidence
The Employment Tribunal declined to admit into evidence selected video recordings of interviews conducted with children who made allegations of indecent assault against the Applicant.  They were, in our view, right to do so.  First, because Mr MacDonald made it clear, as the Employment Tribunal found, that the contents of those videos were not relied upon at all by the disciplinary panel (reasons paragraph 21).  Thus they were irrelevant, both to the Respondent’s reason for dismissal and its reasonableness.  Secondly, because the contents could not be relevant to the issue of contribution in circumstances where, Mr Dineen told us, the purpose of putting in the videos was not to prove the truth of the allegations there being made.  No point arises on the application to admit the video evidence in relation to remedy.

(3)	Bias
Mr Dineen submits that, at paragraph 17 of their reasons, the Employment Tribunal made intemperate comments on the evidence given by Mrs Horner of Secial Services, who was called on behalf of the Respondent.  First, that does not demonstrate the appearance of bias, in the sense of a pre-judgment.  On the contrary it demonstrates the Employment Tribunal’s trenchant view of that witness after she had given her evidence.  Secondly, it seems to us, it does not go to any of the issues in the case.  The point is a bad one.

(4)	Sex Discrimination
It is said that the Employment Tribunal selected the wrong comparator.  A true hypothetical comparator, comparing like with like, would be a female headteacher against whom the same findings had been made by the Respondent’s disciplinary panel and in respect of whom concern had been expressed by the professional agencies as in the case of the Applicant.

It is not entirely clear whether the case was put that way below but if it was, the distinction is illusory for the reasons given earlier when considering the principal proposition advanced in the unfair dismissal part of this appeal.  The Respondent did not adopt the factual basis for those professional’s opinion in the Applicant’s case; the same must apply equally to the hypothetical female comparator.

It is further said that there was no evidence or primary findings of fact from which the inference of unlawful discrimination could be drawn.  We disagree.  Mr Jupp has taken us to passages in the evidence, particularly of Mr Gresham, which support the inference of less favourable treatment on the grounds of sex.  Mr Gresham was the chairman of governors; the investigating officer, the person who formulated the disciplinary charges and the prosecutor at the disciplinary hearing.  His view that, in certain relevant respects, he would see similar conduct by a Female teacher with less concern was relevant evidence from which the inference could properly be drawn by the Employment Tribunal.

(5)	Causation
It is submitted that the Applicant’s loss of earnings were due to an intervening act, that is the prospective unlawful acts of Social Services and potential school employers in refusing to employ the Applicant.  We cannot accept that submission.  It would have been open to such 3rd parties to take the view that there is no smoke without fire, even where the Employment Tribunal had found in the Applicant’s favour in these particular proceedings.  We can see no error of law in the Employment Tribunal’s approach set out at paragraph 26 of their reasons.

(6)	Taxation
Mr Dineen has, since conducting this case below, come across a potential argument that the Employment Tribunal wrongly dealt with the incidence of taxation on the award made in this case.  He wishes to raise that argument as a new point in the appeal.  He has shown no exceptional circumstances which would make it just and equitable for us to entertain the point for the first time on appeal.  See Jones v Governing Body of Burdett Coutts School [1998] IRLR 521.  In these circumstances we have not permitted him to take the point.

Similarly, a new point which Mr Jupp sought to raise by way of cross appeal if we had permitted Mr Dineen to argue his new point, has not been entertained.

Conclusion
23.	It follows, having considered each of the grounds advanced in support of the appeal that we can discern no error of law in this Employment Tribunal’s decision.  Consequently the appeal fails and is dismissed.  The cross-appeal is also dismissed.  The Employment Tribunal’s decision stands.