Fuller v London Borough of Brent

JurisdictionEngland & Wales
JudgeLord Justice Mummery,Lord Justice Moore-Bick,Lord Justice Jackson
Judgment Date15 March 2010
Neutral Citation[2011] EWCA Civ 267
Docket NumberCase No: A2/2010/1138
CourtCourt of Appeal (Civil Division)
Date15 March 2010

[2011] EWCA Civ 267

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

HHJ Mcmullen QC

Before : Lord Justice Mummery

Lord Justice Moore-Bick

and

Lord Justice Jackson

Case No: A2/2010/1138

UKEAT/0453/09/JOJ

Between
Mrs Avril Fuller
Appellant
and
The London Borough of Brent
Respondent

OA OGUNBIYI (instructed by Owoyele Dada & Co) for the Appellant

LOUISE PRICE (instructed by Legal & Democratic Services, Brent Council) for the Respondent

Hearing date: 18 th January 2011

Lord Justice Mummery

Lord Justice Mummery :

Introduction

1

The Employment Tribunal (ET) decided that Mrs Avril Fuller, a school bursar formerly employed by the London Borough of Brent (the Council), was unfairly dismissed for a conduct reason. The issue in the appeal is whether, as the Council argued successfully before the Employment Appeal Tribunal (EAT), the ET misapplied s.98(4) of the Employment Rights Act 1996 (the 1996 Act) to the facts. The EAT made an order that the ET decision against the Council should be (a) set aside and (b) replaced by an order dismissing Mrs Fuller's unfair dismissal claim. I granted permission to appeal on 9 August 2010.

2

Section 98 provides that

"(4) …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 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."

3

There is plenty of authority on the operation of s.98(4) (and of the similar section in the Employment Protection (Consolidation) Act 1978 which it replaced) in cases of dismissal for misconduct. Some of the cases were cited in the ET and in the EAT. The skeleton arguments on this appeal referred to British Home Stores Ltd v. Burchell [1978] IRLR; British Leyland v. Smith [1981] IRLR 91; Iceland Frozen Foods Ltd v. Jones [1983] ICR 17; Post Office v. Foley [2001]1 All ER 550; J Sainsbury v. Hitt [2003] ICR 111; Airbus UK Ltd v. Webb [2008] ICR 561; and London Ambulance Service NHS Trust v. Small [2009] IRLR 563. There is no useful purpose in dissecting them case by case, or in analysing their similarities to, or differences from, either each other or this case, or in compiling an anthology of pertinent passages from them. The main ground of appeal in this case is based on the undisputed requirement of an objective assessment by the ET of the dismissal process.

4

The ET held that the Council had a genuine belief in serious misconduct by Mrs Fuller. The ET was less clear on the issue whether, before it decided to dismiss her, the Council conducted a reasonable investigation into Mrs Fuller's conduct. The ET was critical of some aspects of the investigation, though full of praise for other aspects. It did not specifically answer the question expressly posed by it in paragraph [33] "Was this belief founded on reasonable investigation in all [the] circumstances?" The Council says that, on a fair reading of its judgment, the ET found that the investigation was reasonable. As aspects of the ET's reasoning on the investigation point are relevant to the overall issue of the reasonableness of the dismissal, I shall postpone detailed discussion to later in this judgment.

5

The Council uses the way in which the ET criticised the investigation to support its principal ground of appeal: that the ET failed to apply to the dismissal process s. 98(4) as interpreted by the tribunals and courts. That objective test is neatly expressed in the question: was the dismissal was within "the range or band of reasonable responses" of a reasonable employer. The main point on the appeal is whether, having posed the correct question "Was it reasonable to dismiss for this misconduct?" At the beginning of paragraph [35], the ET did not apply that objective test in fact and gave the wrong answer to the right question. (Note that, as there are two paragraphs numbered 35 in the ET's decision I will refer in this judgment to the second of them as paragraph [35A])

6

The Council contends that the ET slipped up by approaching the investigation and the dismissal in subjective mode. It said what it felt that it would have done in the circumstances. It wrongly substituted itself for the employer. What the ET would have done about Mrs Fuller's conduct, in the light of its findings of fact about the circumstances of her dismissal, was irrelevant to whether the Council unfairly dismissed her. The ET should have been deciding the question it asked. That is a different kind of question, requiring the ET to consider the reaction of a reasonable employer to Mrs Fuller's conduct: could a hypothetical employer reasonably dismiss Mrs Fuller for that reason?

7

In brief, the Council's case on appeal is that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller's dismissal the objective standard encapsulated in the concept of the "range or band of reasonable responses". That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments on unfair dismissal is a re-assurance of objectivity. Its absence from this ET judgment is one of several objections taken by the Council to passages in the ET's judgment, which it challenges as subjective and substitutionary.

8

I will summarise the course of the proceedings and amplify the background facts before discussing the submissions on the appeal.

The proceedings

9

Mrs Fuller presented her unfair dismissal claim to the ET following the Council's decision on 28 February 2008 to dismiss her from her employment as Bursar of Vernon House School for gross misconduct.

10

In its decision registered on 19 August 2009 the ET decided the issue of liability in Mrs Fuller's favour. There has since been a remedies hearing, at which she was awarded compensation in the total sum of £49,199.11. There was a reduction of compensation by 20% to reflect her action in contributing to her dismissal. In the meantime the Council pursued its appeal against liability to the EAT. On 21 April 2010 the EAT allowed the appeal. The ET was criticised for not applying the test whether the dismissal was within the range of reasonable responses and for wrongly transposing itself into her employer and deciding that it would not have dismissed her for gross misconduct.

11

The EAT did not remit the matter to the ET for reconsideration on the correct legal basis. Instead, it proceeded to dismiss Mrs Fuller's claim. That could only have been on the basis that there was no point in re-hearing a claim which, in the EAT's view, was bound to finish up with a finding of fair dismissal.

12

A summary of the allocation of powers and responsibilities in unfair dismissal disputes bears repetition: it is for the employer to take the decision whether or not to dismiss an employee; for the ET to find the facts and decide whether, on an objective basis, the dismissal was fair or unfair; and for the EAT (and the ordinary courts hearing employment appeals) to decide whether a question of law arises from the proceedings in the ET. As appellate tribunals and courts are confined to questions of law they must not, in the absence of an error of law (including perversity), take over the ET's role as an "industrial jury" with a fund of relevant and diverse specialist expertise.

Background

13

Mrs Fuller began her employment as Bursar at Vernon School in September 2001. It is a maintained school specialising in teaching children with social and emotional difficulties. It has an average of 30 pupils not in main stream school. There were 20 staff. Due to the nature of the children's behaviour restraint techniques were carried out as a matter of practice throughout the period of Mrs Fuller's employment. As she was one of the administrative staff she had no direct contact with the children.

14

In January 2007 Ms Lucy Addington became the Head Teacher. Most of her attention was absorbed in the considerable disciplinary problems at a school in which the pupils were disruptive on a daily basis. On 22 May 2007 there was an incident. Mrs Fuller commented on the treatment of a child whom members of staff were trying to control. Ms Lucy Addington exchanged words with Mrs Fuller about her intervention. In June 2007 Ms Addington introduced a revised "restraint of behaviour" policy and staff training about it. As Mrs Fuller had no direct involvement with the children, she did not take up the option of attending the training.

15

The main incident leading to dismissal occurred on 19 October 2007 when Mrs Fuller saw an 8 year old pupil being vigorously restrained. He was kicking and screaming. She complained about the screaming. She told the staff, five of whom were present, including a Mrs Kazembe, that they needed to stop. She said that they were hurting the child and that they did not care. Ms Addington, who was present at the incident, asked Mrs Fuller to go back into the office. She refused. Mrs Fuller commented that Ms Kazmebe was restraining the pupil in "a sexual way." Ms Addington threatened to suspend Mrs Fuller and asked her to leave. The pupil reacted violently towards the staff present after Mrs Fuller's intervention and caused further trouble before being led away.

16

Ms Addington investigated the incident, taking statements from 6 staff present. Mrs Fuller was asked to provide a statement. She did not do so. She did...

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