Neale v Hereford and Worcester County Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE RALPH GIBSON,LORD JUSTICE STOCKER |
| Judgment Date | 18 February 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0218-9 |
| Docket Number | 86/0156 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 February 1986 |
[1986] EWCA Civ J0218-9
Lord Justice May
Lord Justice Ralph Gibson
and
Lord Justice Stocker
86/0156
EAT 14/85.
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR. JUSTICE WAITE & TWO OTHERS)
Royal Courts of Justice.
MR. BRIAN KEITH (instructed by Messrs. Sharpe Pritchard & Co., London WC2, Agents for J.W. Renney, County Secretary and Solicitor, County Council of Hereford and Worcester) appeared on behalf of the Appellants.
MR. WALTER AYLEN Q.C. and MR. JONATHAN CAPLAN (instructed by Messrs. Reynolds Porter Chamberlain, London WC1) appeared on behalf of the Respondent.
This is an appeal from a decision of the Employment Appeal Tribunal of 3rd May 1985. Between 1st September 1980 and 28th June 1983 the respondent was employed by the appellants as a music teacher. He was dismissed from that employment on the latter date. On 14th September 1983 he issued an originating application alleging that he had been unfairly dismissed, which was heard by an industrial tribunal sitting in Birmingham on 12th and 13th January 1984. By their decision, which was sent to the parties on 8th February 1984, the industrial tribunal held that the respondent's dismissal had been within the band of reasonable responses of a reasonable employer and therefore dismissed the application.
The respondent then appealed to the Employment Appeal Tribunal (EAT), which heard the appeal on 6th March 1985. In a reserved judgment on 3rd May 1985 the EAT allowed the respondent's appeal. The essence of their judgment was contained in the following passage at page 19A of the transcript:
"Would an educational employer possessing those essential qualities of reason be capable, in the eyes of any reasonable tribunal, of responding in the way that the council did in the present case to the problem presented by Mr. Neale's misconduct? We think not. When their total response is regarded in the round, there was too much haste about it, too much stubbornness and secrecy, and too little concern for the appearance of fairness as well as its substance, for their reaction generally to be seen in the eyes of any reasonable tribunal as conduct which would have commended itself to a reasonable employer in their position."
From this extract it will be apparent that the EAT'S decision was based substantially upon their view of the manner in which the appellants' decision to dismiss the respondent had been arrived at, having regard to the respondent's conduct. The employers now appeal to this court contending that the EAT erred in the decision to which they came, asking us to set aside the latter's decision and to reinstate that of the industrial tribunal.
The respondent was employed from 1st September 1980 as a music teacher at Wolverley High School for which the appellants were the local education authority. He was a popular and conscientious teacher, fully involved in extra-curricular activities. His dismissal arose out of an incident which occurred on 15th June 1983. He had been responsible for preparing a pupil, Sally Edwards, to take an 'A' Level examination in music set by the Joint Matriculation Board (JMB). Part of her syllabus had been to study a group of five Scarlatti sonatas, which had been chosen for her by the respondent. As is not uncommon, he had given her the five sonatas in photocopy form which did not disclose the particular edition of the composer's works from which those copies had been taken. Scarlatti's sonatas are published in a considerable number of editions. Sally Edwards was the only candidate sitting this particular examination at the school on 15th June 1983.
At the beginning of the examination, which started at 9.30 a.m., the respondent, quite properly, was one of the invigilators. Amongst the instructions issued by the JMB for the conduct of examinations and instructions to examination invigilators was this statement:
"No information may be given to candidates as to misprints etc., in the papers, even if they are obvious, unless an erratum notice has been received from the secretary."
The school had also prepared information for the staff about the examinations, drawing their attention to the official documents which were attached to the table in the examination room and stated that if anyone was in any doubt about the instructions they were to contact named members of the school staff immediately.
One of the questions in Sally Edwards' examination paper was:
"What variety of style, form and texture have you noticed in Scarlatti's keyboard sonatas? Illustrate your answer as fully as you can with specific references, naming the edition you have used in your studies".
Shortly after the start of that examination the respondent realised that his pupil would not know the particular edition of Scarlatti's works from which he had taken the examples which he had given her. He consequently went to her desk, picked up her examination question paper, turned to another desk and wrote on that question paper under the relevant question the words "Associated Board Arnold Goldborough", which was the name of the relevant edition. The industrial tribunal found that he did that openly and genuinely and thought, at the time, that he was not doing anything wrong. In his evidence before the tribunal the respondent readily accepted that, with hindsight, what he had done was strictly in breach of the Invigilators' rules and that he should have sought advice from the examination secretary of the school before he did anything. The industrial tribunal also found that at the time when the respondent wrote on the question paper he thought that the information which he was giving the candidate would not carry any marks, but was merely for the convenience of the examiner.
Another member of the school staff, who was invigilating at the same time, saw what had happened. She reported what she had seen to the member of staff in charge of the examinations and he in turn reported the matter to the head teacher, a Miss Longmuir. At about 2.15 p.m. that afternoon, in the presence of two senior teachers, the respondent was questioned by Miss Longmuir. She had both the question paper and Sally Edwards' answer paper in front of her and she asked the respondent if it was his handwriting on the former. He said that it was not. In his evidence before the tribunal the respondent readily agreed that he was wrong to have lied as he did and he said that he did so because of the tenor of the interview. He also said that he panicked and was confused because he thought that he was being accused of cheating.
Miss Longmuir then made further investigations. While she was doing so the respondent went to see a Mr. Goldthorpe, another master at the school who represented those who were members of the Assistant Masters' and Mistress' Association. The industrial tribunal found that the respondent did not tell Mr. Goldthorpe that he had not told the truth to Miss Longmuir. He put to him a vague and hypothetical situation which led Mr. Goldthorpe to give the respondent the good advice that he should go and give an explanation to Miss Longmuir. Unfortunately he did not do so but went to see Sally Edwards who was taking another examination in typing that afternoon. He asked for a music score which she had been using that morning, told her that a fuss had been made about what he had written on her examination paper that morning, but that she was not to worry because he would clear the whole matter up.
The respondent was then called to a second interview with Miss Longmuir at 3 p.m. that afternoon. She read to him the statement which had been made by the teacher who had seen the original incident and told him that she knew that it was his handwriting on the examination paper. She asked whether the respondent had seen Sally Edwards in the intervening period. He said that he had and that he had gone to collect a music score from her. Miss Longmuir told him that he was very foolish and the industrial tribunal found that she also said that she thought that he had gone to see Sally Edwards to encourage her to say that the writing on the examination paper was not his. In his evidence the respondent said that when he went in to see Miss Longmuir on this second occasion he had intended to make a clean breast of the incident. However he said that his good intentions were "blown out of the window" by the way in which the meeting was being conducted. In the course of this Interview Miss Longmuir referred to the possible attitude of the JMB when the matter was reported to them and there was some discussion of the significance of what the respondent had written. The industrial tribunal found that Miss Longmuir believed at the time of this second interview that the respondent was not telling the truth and that in view of her reasonable investigations, she had reasonable grounds upon which to come to that conclusion.
At about 4 p.m. Sally Edwards, after she had finished her typing examination, was called to see Miss Longmuir. There then followed what was, the industrial tribunal found, for Sally Edwards, a long and distressing interview of about an hour. To begin with the girl tried to protect the respondent by avoidance and prevarication, for which she was not to be blamed, but she eventually admitted that it had been unsolicited information which had been written on her examination paper by the respondent.
During the evening of that day, the respondent, having thought about what had happened, telephoned Miss Longmuir at home and said: "I must...
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