The Governing Body Of Beechview School & Anor v Griffin

In an unfair dismissal claim, a genuine belief in misconduct, supported by reasonable grounds and a reasonable investigation, may make dismissal substantively reasonable under section 98(4) of the Employment Rights Act 1996. Whether conduct amounts to gross misconduct is not relevant to that statutory reasonableness assessment. A defect at the disciplinary hearing may be cured by a fair appeal rehearing at which the employee and witnesses have a proper opportunity to be heard. Delay in completing the process requires separate consideration: the tribunal must ask whether the delay fell outside the range of reasonable procedural responses and whether it caused disadvantage. If procedural unfairness is established, the Polkey issue must be determined before compensation is assessed.

Mr Griffin, a music teacher, was summarily dismissed after disciplinary proceedings concerning alleged inappropriate treatment of pupils and conduct towards the acting head teacher. The disciplinary panel upheld all charges. On appeal, a rehearing was conducted and the appeal panel again upheld the charges.

The Reading Employment Tribunal found the dismissal procedurally unfair but substantively reasonable, assessed 65 per cent contribution, and did not determine the Polkey issue. The Respondents appealed against unfair dismissal, contribution and the omission of the Polkey assessment. Mr Griffin appealed against the contribution finding. The central issues were whether the appeal cured the disciplinary defects, whether delay made the dismissal unfair, and what consequences followed.

1. Outcome. The Respondents’ appeal was allowed in part. Mr Griffin’s appeal was dismissed. The case was remitted to the same Employment Tribunal.
2. The Employment Tribunal correctly found that the reason for dismissal related to conduct and that the Respondents had a genuine belief, based on reasonable grounds following a reasonable investigation, that Mr Griffin was guilty. Applying the three-fold Burchell test, dismissal for that reason fell within the range of reasonable responses under section 98(4) of the Employment Rights Act 1996.
3. The question whether the conduct amounted to gross misconduct was irrelevant to the statutory reasonableness issue. That concept concerns repudiatory conduct justifying summary dismissal at common law, whereas no wrongful dismissal claim was brought.
4. The finding that unfairness at the disciplinary hearing was not cured by the appeal could not stand. Although the original hearing was procedurally defective, the appeal was conducted as a rehearing. The appeal chair reformulated questions and put them to witnesses, giving the Claimant the opportunity to have the evidence addressed. On the Tribunal’s findings, that defect was cured.
5. The delay issue required reconsideration. The Tribunal had to decide whether the delay fell outside the procedural range of reasonable responses open to the employer, applying the approach in Sainsbury’s Supermarket v Hitt, and whether the Claimant suffered disadvantage because of the delay. Not every procedural failing makes a dismissal unfair.
6. If delay alone rendered the dismissal procedurally unfair, the Tribunal had to determine the Polkey question before applying the 65 per cent contribution finding to the compensatory award. The contribution deduction also applied to the basic award. The Tribunal’s assessment of 65 per cent disclosed no error of law.
7. The Claimant’s DVD evidence was inadmissible because it was irrelevant to the issues on appeal.

• Reading Employment Tribunal: upheld the unfair dismissal complaint, found procedural unfairness, assessed 65 per cent contribution, and did not determine the Polkey issue.
• Employment Appeal Tribunal: set aside the finding of procedural unfairness concerning the disciplinary hearing, remitted the delay issue and any consequential Polkey and remedy questions, and dismissed the appeal against the contribution assessment.