Clarence High School and Nugent Care Society v Boardman

In a conduct dismissal case, the employment tribunal’s task remains supervisory rather than a fresh merits decision. Under section 98(4) of the Employment Rights Act 1996 and the Burchell approach, it asks whether the employer genuinely believed the employee guilty, had reasonable grounds for that belief and conducted a reasonable investigation. It must assess the decision within the range of reasonable responses. The Employment Appeal Tribunal may intervene only for an error of law and should read the tribunal’s reasons as a whole. A material perverse finding on a central credibility issue can justify intervention. Wrongful dismissal is distinct: the tribunal makes its own factual findings on whether the conduct breached the contract so as to justify summary dismissal. A fresh tribunal may be ordered on remission where pragmatic factors, including delay and the history of the proceedings, support that course.

Mrs Boardman, a mathematics teacher employed by Nugent Care Society, was summarily dismissed for gross misconduct after an incident involving a pupil. An initial Employment Tribunal upheld her unfair dismissal claim, but the Employment Appeal Tribunal quashed that decision and ordered a rehearing. On the second hearing, a majority Employment Tribunal rejected both unfair and wrongful dismissal claims.

The Employment Appeal Tribunal allowed Mrs Boardman’s appeal, finding critical factual errors and remitting the case to a differently constituted tribunal: UKEAT/0071/12/CEA (10 July 2012). The employers appealed, challenging the EAT’s conclusions on both claims and its decision to order a fresh constitution. The central issues were whether the EAT had identified errors of law and whether the remittal was lawful.

1. Unfair dismissal. Section 98(4) of the Employment Rights Act 1996 requires the tribunal to determine whether the employer acted reasonably in treating the employee’s conduct as sufficient for dismissal. The [1978] IRLR 379 Burchell approach requires a genuine belief in guilt, reasonable grounds for that belief and a reasonable investigation. The tribunal must review the employer’s decision within the band of reasonable responses and must not substitute its own view. The Article 8 submission that this approach should be abandoned was rejected. The ET had permissibly found that the employer’s decision-makers had a genuine belief, reasonable grounds and conducted a careful and conscientious investigation. The EAT’s criticisms concerned the ET’s factual reasoning, not any failure by the employer to satisfy the statutory test. The appeal on unfair dismissal was therefore allowed.
2. Wrongful dismissal. Unlike an unfair dismissal claim, wrongful dismissal required the ET to make its own findings of fact and decide whether the conduct amounted to a contractual breach justifying summary dismissal. The EAT had taken an over-particular approach to the ET’s use of the word manhandling. Read as a whole, the ET’s judgment showed that all members understood the central factual dispute. The concern about the circumstances in which Mrs Dunn left the room was justified, although it was uncertain whether that point alone would have vitiated the decision. The ET’s finding that Mrs Boardman had effectively confessed was different. Applying the high threshold for perversity identified in [2002] EWCA Civ 794, that finding could not reasonably be sustained. It was material because the wrongful dismissal decision turned principally on credibility. The EAT was therefore right to allow the wrongful dismissal appeal.
3. Remittal. The EAT did not err in remitting the matter to a freshly constituted tribunal. The factors identified in [2004] 1RLR 763, including proportionality, delay, bias and whether the original decision was totally flawed, were relevant. The fact that the remitted hearing would be a third trial of the facts and the two-year delay provided pragmatic support for the order.
4. Disposition. The employers’ appeal was allowed on unfair dismissal, but dismissed in relation to wrongful dismissal and the constitution of the remitted tribunal.

1. Court of Appeal (Civil Division). The employers’ appeal was allowed on unfair dismissal but dismissed on wrongful dismissal and the order for remission to a freshly constituted tribunal.
2. Employment Appeal Tribunal. On the second appeal, the EAT allowed Mrs Boardman’s appeal against the second ET decision and remitted the claims to a differently constituted tribunal: UKEAT/0071/12/CEA.
3. Employment Tribunal. On the second hearing, a majority rejected the unfair and wrongful dismissal claims.
4. Earlier proceedings. An initial ET upheld the unfair dismissal claim. The first EAT quashed that decision and ordered a rehearing.