John Loughborough School & Anor v Alexis

In a mixed-motive dismissal, a prior wish to remove an employee does not automatically prevent subsequent misconduct from being the operative reason. The tribunal must determine, as a matter of fact and judgment, which consideration was the principal reason for dismissal. A potentially fair reason may be used as a pretext for an earlier decision to dismiss, even where the employee’s conduct would independently have justified dismissal.

Where the decision-makers approach disciplinary proceedings with a strong predisposition to dismiss, the process may be unfair because their conclusions are not reached with an open mind. A dismissal for capability is also unfair where the process was directed solely to a different issue, such as alleged misconduct.

The respondent was the head teacher of a voluntary aided school. Before a demonstration disrupted the school, an Interim Executive Board had resolved to seek her removal because it considered her incapable of leading the school. After the demonstration, disciplinary proceedings were brought concerning her failure to prevent or mitigate the disruption. She was summarily dismissed for gross misconduct.

The Employment Tribunal found that the demonstration was a pretext and that the principal reason for dismissal was the pre-existing view that she was not up to the job. It also found that the disciplinary panel had been predisposed to dismiss her. The school and the local authority appealed, challenging the tribunal’s findings on the reason for dismissal, fairness, and the possible curing effect of the appeal hearing.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the principal reason for dismissal was the panel’s pre-existing view that the respondent was not capable of performing the role, rather than the events relied upon as the ostensible misconduct.
2. Under section 98 of the Employment Rights Act 1996, the reason for dismissal consists of the considerations operating on the employer’s mind which caused the dismissal. Where several considerations operate, identifying the principal reason is a question of fact and judgment. A prior predisposition to dismiss does not, by itself, prevent later misconduct from being the reason for dismissal. The tribunal must decide which consideration was principal.
3. The approach in ASLEF v Brady [2006] IRLR 576 was correct. A potentially fair reason may be a pretext for dismissal for another reason, even though the conduct would have justified dismissal if it had been the principal reason.
4. The tribunal’s findings supported the conclusion that the panel used the disciplinary process to achieve an earlier decision to remove the respondent if dismissal for the alleged misconduct could be justified. The alleged misconduct was therefore a cause in the but-for sense, but not the principal reason.
5. There was also sufficient basis for unfairness in the panel’s lack of open-mindedness. Its strong predisposition to dismiss was particularly significant because the alleged dereliction of duty involved difficult evaluative questions and was accepted not to have been wilful. A dismissal for capability could not fairly be implemented through a process directed to different allegations.
6. The Employment Appeal Tribunal declined to interfere with the tribunal’s assessment of Mrs Brown’s evidence. It was unnecessary to determine whether the appeal hearing could have cured the unfairness, particularly as that argument had not been specifically advanced below.

• Employment Tribunal, East London Hearing Centre: upheld the respondent’s claim of unfair dismissal. Reasons were sent to the parties on 6 September 2010.
• Employment Appeal Tribunal: dismissed the appeal.