Jafri v Lincoln College

JurisdictionEngland & Wales
JudgeLord Justice Laws,Lord Justice Underhill,Sir Timothy Lloyd
Judgment Date16 April 2014
Neutral Citation[2014] EWCA Civ 449
Docket NumberCase No: A2/2013/0688
CourtCourt of Appeal (Civil Division)
Date16 April 2014

[2014] EWCA Civ 449

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

MR JUSTICE KEITH

3504219/10, 2650866/10 & 2600708/11

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Laws

Lord Justice Underhill

and

Sir Timothy Lloyd

Case No: A2/2013/0688

Between:
Jafri
Appellant
and
Lincoln College
Respondent

Mr J Tindal (instructed by Smith Parnership) for the Appellant

Mr Brochwicz-Lewinski (instructed by Langleys Solicitors) for the Respondent

Hearing dates: 13 February 2014

Lord Justice Laws

INTRODUCTION

1

This is an appeal, with permission granted by Underhill LJ on 10 June 2013, against the judgment of the Employment Appeal Tribunal (EAT) presided over by Keith J, which on 20 February 2013 dismissed the appellant's appeal against the decision of the Employment Tribunal (ET) on 3 January 2012. The ET had in its turn dismissed the appellant's claims of unfair dismissal and detriment suffered as a result of making protective disclosures. On this appeal we are only concerned with the unfair dismissal claim. The principal issue is whether the appellant should be allowed to rely on what the respondent employer says is a new point, not raised in the ET proceedings.

FACTS

2

The appellant was a teacher and learning specialist. In 1988 he started working at Sudbury Prison, an open prison in Derbyshire. He was successively employed by the Derbyshire Education Authority and then Manchester College, when the latter assumed responsibility for educational services at the prison. That function was at length taken over by Lincoln College, the present respondent, and the appellant's employment was transferred to Lincoln College on 1 August 2009. His job title was Deputy Learning and Skills Manager.

3

The Learning and Skills Manager at the prison was Dianna Corbett. On 20 November 2009 she raised a grievance in a letter to the college's Human Resources Officer. She complained about three members of staff, alleging "physical and verbal abuse" by two of them, one of whom was the appellant. On 26 November 2009 the Governor of the gaol, Mr Kan, decided to exclude all three men from the prison owing to the "serious allegations". He indicated that the exclusions would continue until the college's investigations of the complaints had been completed and their outcome discussed with him.

4

Mr Plummer, the Director of the Offenders Learning and Skills Service, investigated the matter on behalf of the college and wrote a report which was unfavourable to the appellant. There was to be a disciplinary hearing on 29 March 2010, but that was put off at the appellant's request. In May 2010 the appellant raised two grievances himself. One was that Ms Corbett's allegations had been false and the college had impeded his attempts to defend himself properly. The second concerned the recruitment by Ms Corbett of two other members of staff and other matters.

5

On 31 May 2010 Ms Corbett left the college's employment. She had taken sick leave from 21 January 2010. She never returned to work. In consequence a Vice-Principal of the college, Mr Gillespie, concluded that he had no alternative but to uphold the appellant's grievance that Ms Corbett's allegations had been false. The EAT was to indicate (paragraph 7) that they were "highly sceptical" as to whether that approach was correct.

6

The appellant applied for Ms Corbett's post. However in an email of 22 July 2010 Mr Kan indicated that the appellant would not be allowed into the prison "under any circumstances". He confirmed that position on 28 July 2010. He had not been told that the appellant's grievance (that Ms Corbett's allegations against him were false) had been upheld.

7

In the result no formal disciplinary process against the appellant was proceeded with. Mr Kan gave evidence to the ET and made it clear that his position had always been that he would not let the appellant back into the prison until the investigation into his conduct had been completed. The ET was to find that his reference in the 22 July 2010 email, "[not] under any circumstances", meant that he would not re-admit the appellant under any circumstances while the investigation into his behaviour was "pending".

8

What was called "an informal disciplinary mechanism" was proceeded with and ended with the appellant being given an "informal oral warning". However that was related to his actual or alleged overbearing behaviour towards other members of staff, rather than the Corbett allegation. The appellant's suspension from work was lifted on 16 September 2010 with immediate effect. But Governor Kan would not have him back at Sudbury prison, though he knew (following a further grievance raised by the appellant on 19 September 2010) that the appellant was saying that the Corbett allegations had been found by the college to be false and unfounded.

9

The college attempted to deploy the appellant at locations other than Sudbury Prison, as Mr Plummer stated in an email to Ms Hilton (Head of Learning Services at Sudbury) of 5 October 2010, in which he asked for an "over-arching statement of the concerns held by HMP Sudbury over his return". A reply on 7 October showed that Mr Kan's position was unchanged. It proved impossible to relocate the appellant. At length on 6 December 2010 Mr Deane, another Vice-Principal of the college, told the appellant that he was to be dismissed. That was followed by a letter to the appellant stating that Mr Kan's refusal to permit his return to the prison was "beyond [the college's] control", and the college had "made every effort to secure alternative employment for [him] but to no avail".

THE EMPLOYMENT TRIBUNAL'S CONCLUSION

10

The ET found that the appellant had been excluded from Sudbury because of Ms Corbett's allegations; that the college had made every effort to persuade Mr Kan to lift his exclusion from the prison; and that the college had sought to find him other employment, but he was only interested in being cleared of the allegations and returning to Sudbury. Those matters amounted to "some other substantial reason" for his dismissal and justified it.

11

Paragraph 5 contains the reasons leading to the ET's conclusion that the dismissal was fair. In light of one of the issues in the case I should set out paragraph 5.2.1:

"The complaint of Dianna Corbett was genuinely made. Having heard her evidence and that of Rachel Newman we are satisfied that there had been difficulties about the claimant's attitude, particularly to women in authority. That Dianna Corbett had indeed spoken to him at length about this without success although, as she described, there had been some small improvement for a short period of time before things worsened again. She did raise her complaint against 3 male colleagues with her employer and it was not at her behest that Mr Jafri was excluded."

12

Finally at paragraph 5.2.6 the ET stated:

"Of course the result of this is that to a certain extent there is some injustice to Mr Jafri and that is acknowledged by the Tribunal and I think it is acknowledged by everyone that there is a certain element of injustice to Mr Jafri in this respect. In our view that injustice has to be balanced against the practicalities of what his employers could do. In our view his employers did everything they could to prevent any injustice to him and indeed in this case their dismissal of him fell well within the band of reasonable responses."

THE EMPLOYMENT APPEAL TRIBUNAL'S CONCLUSION

13

There were two grounds of appeal before the EAT. The first was that the ET had failed to consider whether the college had taken into account, in deciding to dismiss the appellant, the injustice which his dismissal would inflict upon him and the effect of that injustice. The second consists in a series of criticisms of the ET's findings on the way to its conclusion at paragraph 5.2.6 that the college "did everything [it] could to prevent any injustice to [the appellant]".

14

The EAT rejected the first ground. They held that the ET had indeed taken account of the injustice to the appellant occasioned by his dismissal and its effects, and were justified in doing so (EAT paragraphs 22 – 24). As regards the second ground, the EAT accepted that the ET had made three errors of fact. The first (EAT paragraph 26) was that at paragraph 5.2.4 the ET had proceeded (while dealing with the college's discussion with Mr Kan of the appellant's exclusion from the prison) on the footing that the "informal disciplinary mechanism" which was undertaken related to the Corbett allegations, whereas as I have indicated it was in fact concerned with his actual or alleged overbearing behaviour towards other members of staff. The second error (EAT paragraph 31) related to a finding by the ET at paragraph 3.38 of its reasons to the effect that Mr Plummer had been unable to uphold any of the contentions put forward by the appellant in his second grievance of May 2010, whereas certain elements, concerning the recruitment by Ms Corbett of two other members of staff and a timetable revision, had been upheld. The third (EAT paragraph 33) was that the ET at paragraph 3.35 had misreported Mr Plummer's email of 5 October 2010, by stating that Mr Plummer had asked how the fact that "the investigation [into the Corbett allegations] was not going to be continued… would affect [the appellant's exclusion". But Mr Plummer had asked nothing of the sort. He had asked for an "over-arching statement of [the prison's] concerns" (about his return).

15

The EAT considered, however, that none of these errors vitiated the ET's conclusion that the college had...

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