Mitchell v St Joseph’s School

Where an employee’s contract imposes a direct duty to report financial matters to a governing board, disclosure to individual chairmen does not, without more, amount to disclosure to the board. Corporate attribution depends first on the organisation’s governing documents and the purpose for which knowledge is said to be attributed.

In a misconduct dismissal case, the tribunal must review the employer’s decision on the material available, applying the Burchell requirements and the range of reasonable responses. A judge sitting alone applies the same law as a full tribunal and must not substitute personal views for the employer’s assessment.

The claimant, a school bursar, was dismissed for gross misconduct after the school’s finances became seriously adverse. The dismissal allegations included failures to keep proper accounts, produce accurate financial reports and report material matters to the governors.

He contended that he had informed the chairman of governors and the chairman of the finance committee, so that the board should be treated as having knowledge of the financial position. He also challenged aspects of the Employment Judge’s findings about the figures and loss.

The Employment Judge, sitting alone, dismissed claims for unfair and wrongful dismissal. The claimant appealed to the Employment Appeal Tribunal. The central issue was whether the Employment Judge had erred in rejecting the attribution argument and in upholding dismissal as within the range of reasonable responses.

1. Appeal dismissed. The Employment Judge made no error of law in holding that dismissal for gross misconduct fell within the range of reasonable responses.

2. The claimant’s contractual responsibility was to report financial matters to the governors as a whole. Nothing in the contractual arrangements displaced that direct obligation or permitted him to treat reports to the two chairmen as reports to the board.

3. Applying Meridian and Orr, the attribution question was answered first by the organisation’s governing arrangements. Those arrangements did not attribute to the board knowledge acquired by the two chairmen. A special attribution rule was neither necessary nor appropriate. The factual findings also showed that the claimant knew that his concerns were not being reported to the board.

4. The Employment Judge had correctly directed himself under British Home Stores Ltd v Burchell. The respondent genuinely believed, after a reasonable investigation, that the claimant was guilty of the alleged misconduct. On the material available to it, dismissal was open to a reasonable employer. The disputed financial figures did not establish perversity.

5. The Tribunal’s task in an unfair dismissal case is one of review, followed by assessment of whether dismissal fell within the range of reasonable responses. Although the Employment Judge’s first-person comments created a risk of a substitution mindset, he ultimately applied the correct test. The same approach applies whether an Employment Judge sits alone or with lay members.

• Employment Appeal Tribunal: Appeal dismissed; the Employment Judge’s dismissal of the unfair and wrongful dismissal claims was upheld.
• Employment Tribunal: Employment Judge Major, sitting alone at Truro, dismissed the claims in reasons sent to the parties on 9 July 2012.