X County Council & Anor v Miss D & Anor

In a misconduct dismissal case, the Employment Tribunal must assess the employer’s conduct by the objective standard of the reasonable employer. It must not ask whether further investigatory steps were possible, require cogent proof of risk, or substitute its own assessment of the gravity of misconduct for that of the employer.

An employer may reasonably rely on relevant expert safeguarding advice, even if that advice might later prove erroneous. A procedural defect does not itself establish unfair dismissal; the question is whether the procedure overall was fair. A legally correct self-direction does not save a decision where the Tribunal’s reasoning shows that it applied the wrong test.

Two drama teachers were summarily dismissed for gross misconduct after GCSE students performed highly sexualised scenes, including depictions of sexual abuse, at a school showcase. The school had obtained safeguarding advice that participation might carry a risk of psychological harm. The teachers’ appeals against dismissal were unsuccessful.

The Employment Tribunal found the dismissals substantively and procedurally unfair. It considered that the employer should have interviewed students and audience members, rejected the safeguarding advice as unreasonable, and identified alleged defects in the appeal processes.

The local authority and governing body appealed. The central issue was whether the Tribunal had permissibly applied the reasonable-employer standard when assessing the investigation, reliance on expert advice, sanction and procedure.

1. Appeal allowed. The Tribunal’s finding of unfair dismissal was perverse and was set aside. The claims were remitted for rehearing by a freshly constituted Employment Tribunal.

2. Under section 98 of the Employment Rights Act 1996, the Tribunal had to determine whether the employer genuinely believed the teachers were guilty of misconduct, whether that belief followed a reasonable investigation, and whether dismissal was within the range of reasonable responses. The Tribunal’s correct statement of those principles did not prevent the Appeal Tribunal from examining whether it had actually applied them.

3. The Tribunal wrongly discounted the safeguarding manager’s advice on the basis that he lacked relevant experience. It failed to consider his extensive child-protection experience and his experience of the possible effects of role-play involving sexual abuse. The relevant question was not whether the Tribunal would have accepted the advice, but whether no reasonable employer could have relied on it. The employer could reasonably rely on expert advice even if it was later shown to be wrong.

4. The Tribunal also applied the wrong approach to investigation. It treated the absence of interviews with students and audience members as decisive, although the proposed interviews concerned immediate reactions and could not materially assess the possibility of long-term harm. Supportive statements gathered by the teachers were in any event before the appeal panel. The Tribunal was not entitled to require cogent evidence or to ask simply whether more investigation could have been undertaken.

5. Its statements that the teachers’ shortcomings were not serious enough to justify dismissal, and its independent assessment of the performance, showed a substitution mindset. It had substituted its own view for the question whether the employer had acted fairly and reasonably.

6. The findings of procedural unfairness were also unsustainable. Neither the refusal of an independent note-taker nor the participation of the challenged panel member was found to have caused actual unfairness. A procedural flaw must be assessed in the context of the fairness of the procedure as a whole.

• Employment Appeal Tribunal: Allowed the employers’ appeal, set aside the unfair-dismissal judgment and remitted the claims for rehearing by a freshly constituted Employment Tribunal.
• Employment Tribunal, Leicester: Found the teachers’ dismissals for gross misconduct unfair.