Henderson v London Borough of Hackney

The Court of Appeal refused permission to appeal against the Employment Appeal Tribunal's dismissal of an appeal from an employment tribunal which had rejected Ms Henderson's complaints of unfair and wrongful dismissal. The key legal principles endorsed were that dismissal for gross misconduct may be justified where an employee in a position of trust working with vulnerable children accessed and forwarded sexually explicit material on a school computer during school hours, and that the Employment Rights Act 1996 section 98(4) assessment requires consideration of whether the employer acted within the range of reasonable responses. The court held that the tribunal and disciplinary panel carried out a fair investigation, properly considered Article 10 of the European Convention on Human Rights and proportionality under the Human Rights Act, and that the sanction of dismissal was a proportionate response in all the circumstances.

The appellant, Ms C. Henderson, was employed as an inclusion manager at Haggerston School and worked with vulnerable pupils. Investigations found that during school hours and on school computers she had forwarded and viewed sexually explicit images and video clips and had forwarded explicit material to a colleague. She was suspended, disciplined for gross misconduct and summarily dismissed. Her internal appeal was withdrawn. She brought proceedings alleging unfair and wrongful dismissal to an employment tribunal which dismissed her claims (hearing at Stratford on 6 December 2008). The Employment Appeal Tribunal (HHJ McMullen QC) dismissed her subsequent appeal on 13 July 2009.

The appellant sought permission to appeal to the Court of Appeal. The central issues before the Court of Appeal were whether the conduct amounted to gross misconduct within the employer's disciplinary rules, whether the respondents had carried out a reasonable investigation, whether dismissal was within the range of reasonable responses required by section 98(4) of the Employment Rights Act 1996, and whether the dismissal was a proportionate interference with the appellant's Article 10 rights under the European Convention on Human Rights (as applied through the Human Rights Act).

The court recited the factual findings: multiple sexually explicit images and two explicit video clips were opened and/or forwarded on the school computer during school hours; the appellant worked with vulnerable 11–16 year old girls and had statutory duties under the Children Act 2004 and Every Child Matters agenda to safeguard children; the disciplinary panel found lack of remorse and an attitude that she had a right to do it. The tribunal found the employer had carried out a reasonable investigation and that dismissal was a proportionate response.

The Court of Appeal considered authority on remittal and the proper test where an employment tribunal may have applied the wrong legal test (including Dobie v Burns International Security Services and Tilson v Alstom Transport) and concluded that even if the tribunal had erred in formulation, the decision was plainly and unarguably right. The court rejected the argument that absence of a detailed written internet policy deprived the employer of the ability to treat the conduct as gross misconduct. It concluded that the context, the appellant's role of trust, her attitude and the risk that children might be exposed to the material meant dismissal was within the reasonable range of responses and proportionate under Article 10(2). Permission to appeal was refused.

Permission to appeal was refused. The Court of Appeal held that the employment tribunal and the disciplinary panel had properly investigated the matter, that the employee's conduct in accessing and forwarding sexually explicit material on school computers during school hours while working with vulnerable children could amount to gross misconduct, and that dismissal was within the reasonable range of responses and a proportionate interference with any Article 10 right.

Employment Tribunal (Stratford) – hearing 6 December 2008: claims of unfair and wrongful dismissal dismissed. Employment Appeal Tribunal (HHJ McMullen QC) – appeal dismissed 13 July 2009. Court of Appeal (Civil Division) – refusal of permission to appeal 11 July 2011 [2011] EWCA Civ 1518.