Gordon v Governors of St Mary's Church of England Primary School

On an appeal from an employment tribunal, complaints about factual findings, the evaluation of misconduct, or the reasonableness of dismissal do not ordinarily raise issues of law. Whether misconduct justifies dismissal is primarily a question of fact. Its characterisation as gross misconduct is a question of degree. An appellate court should not substitute its own assessment where the tribunal correctly directed itself and reached findings open to it. A breach caused by using the wrong contractual disciplinary procedure gives rise to damages only where loss is proved. Where alternative procedures are fair and would have produced the same result, no loss is established.

The appellant, a deputy head teacher, brought claims for unfair and wrongful dismissal after being summarily dismissed for alleged gross misconduct. The South London Employment Tribunal rejected the unfair dismissal claim, finding that the dismissal was reasonable, and later found that although the wrong disciplinary code had been used in breach of contract, no loss resulted. It also held that summary dismissal was contractually justified.

The Employment Appeal Tribunal dismissed the appellant's appeals. She sought permission to appeal to the Court of Appeal, alleging errors concerning the disciplinary procedure, the reasonableness of dismissal, the characterisation of her conduct, and the treatment of factual matters. The central issue was whether those complaints disclosed arguable errors of law.

The application for permission to appeal was refused.

1. The Court of Appeal could intervene only on an issue of law. Complaints directed to the Employment Tribunal's factual findings or its assessment of the evidence were not errors of law. Such findings could not properly be appealed to the Employment Appeal Tribunal, still less to the Court of Appeal.
2. Whether misconduct justified dismissal was pre-eminently a question of fact for the Employment Tribunal, which had heard the evidence during a lengthy hearing. The Tribunal had correctly directed itself on the applicable test. Its conclusion that dismissal was a reasonable response was therefore not open to appellate interference.
3. The characterisation of the misconduct as gross misconduct involved a question of degree. The Tribunal had properly addressed that question and was entitled to conclude that summary dismissal was justified.
4. The employer had breached contract by using the Council disciplinary code instead of the diocesan code incorporated into the contract. However, both codes provided fair procedures and would have produced the same result. The Tribunal was therefore entitled to find that the breach caused no loss.
5. The appellant's remaining complaints concerned factual matters, including alleged attempts to procure her departure and the absence of a union representative at an earlier meeting. They did not disclose arguable points of law. The Employment Appeal Tribunal was plainly right to dismiss the appeals, and there was no real prospect of a successful appeal.

• Court of Appeal (Civil Division) refused permission to appeal from the Employment Appeal Tribunal.
• Employment Appeal Tribunal dismissed two appeals from the South London Employment Tribunal.
• South London Employment Tribunal dismissed the claims for unfair and wrongful dismissal.