Clarence High School and Nugent Care Society v Boardman

The Court of Appeal considered an appeal from an Employment Appeal Tribunal decision which had set aside findings of an Employment Tribunal and remitted the matter for rehearing. The central legal principles concerned the Burchell test for unfair dismissal under section 98(4) of the Employment Rights Act 1996 and the standard of appellate intervention in relation to findings of fact and perversity. The court held that the EAT had no proper grounds to interfere with the ET's conclusion that the dismissal was fair under the Burchell approach, but that the EAT was right to find legal error in the ET's treatment of certain credibility findings (notably an unsupported finding of effective confession) which vitiated the ET's conclusion on wrongful dismissal. The EAT's remittal to a freshly constituted Employment Tribunal was not unlawful.

Background and parties:

• The respondent, Mrs Zainab Boardman, a long-serving mathematics teacher, was summarily dismissed following an incident in a detention room involving a pupil (DH) and a classroom assistant (Mrs Dunn).
• The appellants were the governing body of Clarence High School and Nugent Care Society, as employer.

Procedural history:

• The matter has had multiple hearings: an initial Employment Tribunal (ET) finding of unfair dismissal; an EAT decision quashing and remitting; a rehearing ET which dismissed unfair and wrongful dismissal claims; a second EAT (UKEAT/0071/12/CEA) which allowed Mrs Boardman's appeal and remitted the case to a differently constituted ET; and this appeal to the Court of Appeal.

Nature of the claim and relief sought:

• Mrs Boardman pursued claims for unfair dismissal and wrongful dismissal arising from her summary dismissal for alleged assaultive conduct toward a pupil.

Issues framed by the Court of Appeal:

(i) Whether the EAT erred in law in overturning the ET's finding that the dismissal was fair under section 98(4) of the Employment Rights Act 1996 and the Burchell test;

(ii) Whether the EAT was correct to find that the ET had made perverse or material errors of fact affecting the wrongful dismissal finding; and

(iii) Whether the EAT erred in remitting the matter to a freshly constituted ET rather than to the same tribunal members.

Court's reasoning:

• On unfair dismissal the Court of Appeal held that the ET had legitimately applied the Burchell test: the employer genuinely believed the employee was guilty, that belief had reasonable grounds founded on preferred witness evidence, and the investigation was reasonable in the circumstances. The EAT's criticisms were directed to how the ET had described the factual findings, not to any legal failure by the employer, and did not justify appellate interference on unfair dismissal grounds.
• On wrongful dismissal the Court agreed with the EAT that certain ET findings were legally unsustainable. In particular the ET had improperly treated disputed matters as undisputed and, critically, had drawn an unsupported inference that the claimant had effectively confessed to wrongdoing — a finding the Court concluded was perverse and could not stand. Because credibility between the two protagonists was central to the wrongful dismissal issue, that error vitiated the ET's conclusion on wrongful dismissal.
• On remittal the Court held there was no legal error in remitting to a freshly constituted ET. Considerations such as the passage of time, proportionality and the practical difficulty of reassembling the original tribunal supported the EAT's approach.

Outcome:

• The appeal was allowed in part: the Court allowed the employer's appeal on unfair dismissal but dismissed the appeal in relation to wrongful dismissal and upheld the remittal to a freshly constituted ET.

The appeal was allowed in part. The Court allowed the employer's appeal on the unfair dismissal issue because the ET had properly applied the Burchell test and there was no legal basis for the EAT to interfere. However, the Court agreed with the EAT that the ET had made legally unsustainable findings of fact (including an impermissible finding of effective confession) which vitiated the wrongful dismissal conclusion, and it upheld the EAT's remittal to a freshly constituted Employment Tribunal.

Initial Employment Tribunal found unfair dismissal; employer's appeal to the Employment Appeal Tribunal quashed that decision and remitted to a differently constituted ET; on rehearing the ET dismissed unfair and wrongful dismissal claims; the second EAT (UKEAT/0071/12/CEA, 10 July 2012) allowed the claimant's appeal and remitted to a differently constituted ET; this Court of Appeal decision [2013] EWCA Civ 198 allowed the employer's appeal on unfair dismissal but upheld the EAT's intervention on wrongful dismissal and its remittal order.