Tubbenden Primary School v Sylvester

In a dismissal for some other substantial reason based on a breakdown of trust and confidence, an Employment Tribunal may consider the history which produced the breakdown where that history is relevant to fairness under section 98(4) of the Employment Rights Act 1996. It need not treat the bare fact of lost confidence as decisive.

Where the asserted substantial reason results from conduct, the fairness enquiry may properly include warnings, condonation, suspension, procedure and the employee’s opportunity to alter the conduct. This is fact-sensitive; such an enquiry is permitted, not mandatory, in every loss-of-confidence case.

A deputy head teacher was dismissed after an appeal panel found that the head teacher had lost trust and confidence in her because she maintained a discreet friendship with a former colleague who had been arrested for possessing indecent images of children. The panel rejected allegations of safeguarding risk and serious reputational harm.

The Employment Tribunal accepted that loss of confidence was a genuine potentially fair reason falling within section 98(1)(b) of the Employment Rights Act 1996, but held the dismissal unfair. It found that the School had condoned the friendship and had failed to warn the claimant that it might endanger her employment. The School appealed on fairness, substitution, procedural-irregularity and contributory-fault grounds.

1. Appeal allowed in part. The Employment Appeal Tribunal upheld the Employment Tribunal’s finding of unfair dismissal. It remitted only a distinct issue of contributory conduct to the same Tribunal.

2. Section 98(4) of the Employment Rights Act 1996 requires consideration of all the circumstances and the substantial merits. In an appropriate dismissal for some other substantial reason founded on loss of trust and confidence, the Tribunal may examine how the relationship reached that state. It was not confined to the fact that confidence had been lost when the appeal panel decided the dismissal.

3. The asserted reason here was the consequence of conduct. It was therefore closely analogous to a conduct dismissal. The Tribunal was entitled to consider the absence of warning, the School’s earlier condonation of the friendship, the suspension and the procedure. Those matters could make dismissal unfair even though a genuine loss of confidence was a potentially fair reason.

4. The Tribunal’s isolated reference to the appeal panel’s decision being within the band of reasonable responses did not render its reasoning inconsistent. Read as a whole, it had applied the statutory fairness test and had not substituted its own decision for that of the employer. Its finding that the claimant might have changed her conduct if warned was unnecessary to fairness, but did not disclose a material substitution error when the judgment was read as a whole.

5. The procedural complaint concerning the Tribunal’s questioning of a witness disclosed no material injustice because any prejudice was capable of remedy. However, the Tribunal had failed to address a separate, material submission that the claimant’s ill-founded aspersions against the head teacher during the internal proceedings had contributed to the dismissal. That issue was remitted without further evidence, with any consequential adjustment to compensation.

• Employment Appeal Tribunal: Allowed the School’s appeal only on the unaddressed contributory-conduct issue and remitted that issue to the same Employment Tribunal.
• Employment Tribunal at Ashford: On 7 June 2011, upheld the claimant’s unfair-dismissal complaint and awarded compensation of £50,700.20.