Old v Palace Fields Primary Academy

In assessing fairness under section 98(4), a tribunal must address material procedural irregularities in the disciplinary process. It is insufficient to conclude that a panel had enough information, or could have reached the same conclusion without the irregular material.

Material generated by an investigation which may assist the employee must be considered for disclosure. A tribunal must also consider whether it was procedurally unfair for a disciplinary panel to rely on material on which the employee was not allowed to comment. Non-disclosure does not automatically make a dismissal unfair, but it forms part of the overall fairness assessment.

The claimant, a teacher with 21 years’ service, was dismissed for gross misconduct after a disciplinary process concerning her response to an apparent bullying incident involving a pupil. The Employment Tribunal dismissed her unfair-dismissal claim and found the dismissal within the range of reasonable responses.

On appeal, the claimant challenged the handling of witness statements obtained during the investigation and the disciplinary panel’s reliance on minutes of meetings which she had been told would not form part of its deliberations. She also challenged reliance on allegations outside the disciplinary charges.

The central issue was whether the Tribunal had correctly assessed those matters as questions of procedural fairness under section 98(4).

1. Appeal allowed. The Employment Tribunal had not correctly addressed two potentially material procedural irregularities when upholding the fairness of the dismissal.

2. First, two witness statements from pupils were potentially capable of assisting the claimant. The fact that they were not shown to the disciplinary or appeal panels did not answer the separate fairness question whether investigatory material which might support the claimant’s case should have been disclosed to her. Non-disclosure was not necessarily determinative, but had to be considered in the overall statutory assessment under section 98(4).

3. Secondly, the panel considered minutes of two interviews with the head teacher although the claimant had not been shown them and had been told they would not form part of the panel’s deliberations. The Tribunal’s conclusion that the panel could have preferred the teaching assistant’s account without the minutes did not resolve whether it was a material procedural irregularity to rely on material upon which the claimant could not comment.

4. The point concerning allegations outside the charges failed. The Tribunal had accepted evidence that the panel took no account of those allegations. The panel had put them out of its mind, so no procedural unfairness arose from that report.

5. The two unresolved procedural questions were remitted, if practicable, to Employment Judge Reed. The Tribunal was to reconsider overall fairness in all the circumstances, including the potentially career-destroying effect of dismissal after lengthy service. The respondent was ordered to pay £600, being half the hearing fee; no order was made for the lodgement fee.

• Employment Appeal Tribunal: appeal allowed and the procedural-fairness issues remitted to the Employment Tribunal.
• Employment Tribunal, Liverpool: Employment Judge Reed dismissed the claimant’s unfair-dismissal claim in a judgment and reasons dated 17 September 2013.