Griffin v The Governing Body Of Beechview School & Anor

In assessing unfair dismissal for conduct, the question under section 98(4) of the Employment Rights Act 1996 is whether dismissal fell within the range of reasonable responses. Whether the conduct amounted to gross misconduct at common law is irrelevant to that statutory question.

A procedurally defective disciplinary hearing may be cured by a fair appeal conducted by way of rehearing. Delay in completing disciplinary proceedings requires separate consideration: the tribunal must decide whether the delay fell outside the reasonable range open to the employer and whether it caused disadvantage. If procedural unfairness is established, the Polkey issue must be determined.

Mr Griffin, a music teacher, was summarily dismissed following disciplinary proceedings concerning his treatment of pupils and his conduct towards the acting head teacher. An appeal panel reheard the matter and upheld the dismissal.

The Employment Tribunal found the dismissal procedurally unfair because of the conduct of the original disciplinary hearing and delay, but substantively reasonable. It assessed 65 per cent contribution to the dismissal and did not determine the Polkey issue.

The Respondents appealed against unfairness, contribution and the failure to decide Polkey. Mr Griffin appealed against the contribution finding. The central issues were whether the appeal cured the original procedural defect and whether the delay independently rendered the dismissal unfair.

1. Fresh evidence. Mr Griffin’s proposed DVD evidence was inadmissible because it was irrelevant to the issues before the Employment Tribunal and the appeals.
2. Reason for dismissal and substantive reasonableness. The Employment Tribunal had found that the reason for dismissal related to conduct. Applying the three-fold Burchell test, the Respondents had a genuine belief, based on reasonable grounds following a reasonable investigation, that Mr Griffin was guilty of the conduct. Dismissal therefore fell within the range of reasonable responses under section 98(4) of the Employment Rights Act 1996.
3. Procedural defect at the disciplinary hearing. The Tribunal’s finding that the original hearing was incurably unfair could not stand. On its findings, the appeal was conducted by way of rehearing and the appeal chair reformulated questions so that witnesses could answer them. Any unfairness at the original hearing was therefore cured by the fair appeal.
4. Delay. The Tribunal had failed to ask whether the delay fell outside the procedural range of reasonable responses open to the employer and whether Mr Griffin suffered disadvantage as a result. Not every procedural failing makes a dismissal unfair. This issue was remitted for reconsideration, with regard to Sainsbury’s Supermarket v Hitt [2002] EWCA Civ 1588.
5. Compensation and contribution. If the delay alone rendered the dismissal unfair, the Tribunal had to determine the Polkey issue before applying the 65 per cent contribution finding to the compensatory award. The contribution finding also applied to the basic award. The assessment of 65 per cent disclosed no error of law.
6. The Respondents’ appeal succeeded in part. Mr Griffin’s appeal was dismissed. The case was remitted to the same Employment Tribunal to determine the delay issue, any resulting Polkey question, and compensation.

• Employment Appeal Tribunal: The Respondents’ appeal was allowed in part. The Claimant’s appeal was dismissed. The matter was remitted to the same Employment Tribunal.
• Employment Tribunal: The Tribunal upheld the unfair-dismissal complaint, found 65 per cent contribution, and did not determine the Polkey issue. Its Reserved Judgment with Reasons was promulgated on 9 November 2010.