Dietmann v Brent London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE,LORD JUSTICE STOCKER,LORD JUSTICE MAY |
| Judgment Date | 03 February 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0203-2 |
| Docket Number | 88/0084 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 February 1988 |
[1988] EWCA Civ J0203-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL. (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION.
MR JUSTICE HODGSON
Royal Courts of Justice
Lord Justice May,
Lord Justice Balcombe
and
Lord Justice Stocker.
88/0084
MR J. BELOFF, Q.C. and MR J.A McMANUS (instructed by Mr Stepher R. Foster) appeared on behalf of the appellant (defendant).
MR J. HENDY, Q.C. and MR JEREMY McMULLEN (instructed by Messrs Wilford McBain) appeared on behalf of the respondent (plaintiff).
This appeal is from a judgment of Hodgson J. given on 19th December 1986 and reported in [1987] I.C.R 737. The facts which give rise to this appeal have attained some notoriety and I can state them briefly.
Jasmine Beckford was born on 21st December 1979. She was the daughter of Beverley Lorrington, who at the time was living with Morris Beckford; he was not Jasmine's father but Jasmine was given his name. (In the report to which I refer later they are called "the parents" and I adopt that nomenclature). On 27th May 1981 Louise Beckford was born. On 1st August 1981 Louise Beckford was admitted to hospital with serious non-accidental injuries. On 4th August 1981 Jasmine was admitted to hospital with a broken femur. On 9th September 1981 Willesden Juvenile Court made care orders in respect of both children committing them to the care of the appellant, the London Borough of Brent ("the Council"). After discharge from hospital the two children were placed with foster parents, but on 19th April 1982 they were returned home to the parents. On 5th July 1984 Morris Beckford killed Jasmine. On 28th March 1985 Morris Beckford was convicted of the manslaughter of Jasmine and sentenced to 10 years' imprisonment. Beverley Lorrington was convicted of wilful neglect and sentenced to 18 months' imprisonment.
The respondent, Mrs Diane Dietmann, the plaintiff in the action, is a qualified social worker. She entered the employment of the Council as a senior social worker on 18th December 1978. She attended the case conference on 6th August 1981 at which the decision was taken to place the names of both children on the Council's Social Services child abuse register, to apply for a care order and to appoint Ms. Gun Wahlstrom the key worker in the case. From that date until Jasmine's death the plaintiff was the supervisor of Ms. Wahlstrom on the Beckford case, attended all but one of the case conferences and case reviews, and supervised every stage of Jasmine's placement from August 1981 until July 1984, with the exception of the time when she was on leave, in particular from 27th April—19th November 1983 when she was on maternity leave.
On 28th March 1985 (the same day that the parents were sentenced) the Council appointed a panel of inquiry, under the chairmanship of Mr Louis Blom-Cooper, Q.C., to inquire into the circumstances surrounding Jasmine's death. As the learned judge said ( [1987] ICR at p. 740E):
"Its terms of reference were wide and the panel interpreted them widely. The panel consisted of five members, all highly qualified. It reported in December 1985. Its inquiry was conducted with scrupulous fairness and its report ranges widely over the whole field of child abuse."
The plaintiff gave evidence to the panel and was represented before it by counsel. The panel's report, entitled "A Child in Trust", was published in December 1985. The report criticised many of those concerned in the Beckford case, and in particular the plaintiff and Ms. Wahlstrom. Of the plaintiff it said (at p. 293):
"By her non-intervention in flawed social work she was grossly negligent."
Later in this judgment I shall have to give more detailed consideration to the criticisms of the plaintiff contained in the report.
Between the death of Jasmine and the publication of the report the plaintiff continued to work for the Council and, as part of her case load as a social worker, she was entrusted with abused children placed in the Council's care. The report was received by the Council at 8 a.m on 2nd December 1985. It was read by the Chief Executive, Mr Bichard, who then prepared a report to the urgency sub-committee of the Social Services Committee of the Council, recommending the summary dismissal of the plaintiff on the grounds of "gross misconduct". That subcommittee met at 5.45 p.m on 4th December 1985. It endorsed the proposal of the Chief Executive summarily to dismiss the plaintiff and on the same day the plaintiff was handed a letter giving effect to that decision.
The plaintiff, in exercise of the right given to her by the Council's disciplinary procedure, lodged an appeal against her dismissal on 18th December 1985. On 28th February 1986 she made an application to the Industrial Tribunal claiming unfair dismissal: that application is yet to be heard, awaiting the outcome of these proceedings. Her appeal was heard on 23rd June 1986 but, on the advice of her lawyers, the plaintiff decided not to argue the merits of the case, and confined herself to the alleged procedural irregularities of her dismissal, a decision which the learned judge categorised as "ill-judged". The appeal was dismissed on 24th June 1986.
In early July 1986 the plaintiff accepted an offer of employment by the Wolverhampton City Council, although she withdrew her acceptance of that offer a month or two later.
On 14th July 1986 the plaintiff issued her writ in this action. By it she claimed a declaration that the Council's decision purporting to dismiss her was "invalid, void, and of no effect", an injunction to restrain the Council from acting on that decision, and damages. After various interlocutory applications, the case came on for trial before Hodgson J. on 3rd December 1986 and the hearing lasted over several days. At an early stage of the trial certain important concessions were made which the judge recorded in the following terms:
"Admissions:
1. In these proceedings the issue arises as to whether the plaintiff was guilty of gross misconduct within the meaning of the contract. For the purpose of the determination of this issue, and no other, the plaintiff is prepared to accept the content of the report 'A Child in Trust', including the opinions and facts therein stated, including the finding of gross negligence.
2. The plaintiff makes clear that for the purpose of all other issues, including the question of what she would have wished and wishes to put before the disciplinary hearing to which she contends she is entitled and for all other proceedings, she does not admit and indeed contests many of the findings of fact and, in particular, the findings of gross negligence contained in the report. 3. The council make no admission as to the efficacy of paragraph 2 above and will contend at any subsequent hearing that the question whether the plaintiff was grossly negligent is res judicata and/or that the plaintiff is estopped from contending other-wise in any other forum."
By his reserved judgment, delivered on 19th December 1986, the learned judge made the following findings:
(i) That the plaintiff's conceded failure to achieve, in respect of Jasmine, the standard required by her grade and experience did not amount to gross misconduct within the terms of her contract of employment—[1985] ICR at p.750B.
(ii) That, as a matter of the construction of that contract, the Council was not entitled summarily to dismiss the plaintiff without first according her a hearing under the disciplinary procedure— [1987] ICR at p.751.
(iii) That, accordingly, the plaintiff was wrongfully dismissed in breach of her contract of employment— [1987] ICR at p.752E.
(iv) That her contract remained in force until the Council's repudiatory breach was accepted by the plaintiff— [1987] ICR at p.755A.
(v) That the plaintiff's conduct—in particular her acceptance of employment with Wolverhampton—amounted to acceptance of the Council's repudiation— [1987] ICR at p.755 G-H.
(vi) That the plaintiff's remedy was confined to damages for breach of contract, to be calculated as 16 weeks' wages less any unemployment benefit earned during that period. This amounted (with interest) to £2,708.22.
From this judgment the Council has appealed. The two grounds of appeal which were argued before us were:
(i) On the proper construction of the plaintiff's contract of employment, was the Council entitled summarily to dismiss the plaintiff without according her a disciplinary hearing? I will call this the "Instant Dismissal" point.
(ii) On the proper construction of the contract did the plaintiff's admitted "gross negligence" constitute "gross misconduct" as defined by the contract? I will call this the "Gross Misconduct" point.
By a respondent's cross-notice the plaintiff sought to raise a point concerning the quantum of damages. Before us Mr Hendy, Q.C., for the plaintiff, did not seek to argue this point, whilst formally keeping it open for argument elsewhere.
The other points raised by the notice of appeal and the respondent's cross-notice were not argued before us. So I turn to consider the two live issues. By way of general introduction I should say that this appeal turns solely on the question of the parties' contractual rights. Whether the plaintiff might be entitled to claim before an industrial tribunal that she was unfairly dismissed is irrelevant for our consideration.
1. Instant Dismissal.
It was common ground before us that at common law an employee who is guilty of sufficient misconduct in his capacity as an employee may be dismissed summarily without notice and without any hearing. See Chitty...
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