West v. Percy Community Centre

In an unfair-dismissal claim, contractual gross misconduct and statutory fairness are distinct questions. A tribunal need not first decide whether conduct was gross misconduct before applying section 98(4) of the Employment Rights Act 1996.

The tribunal must, however, identify the misconduct which the employer reasonably believed had occurred. It must consider the employee’s material case that the conduct fell within a safeguarding policy, including any flexibility in that policy. Where dismissal for safeguarding misconduct may seriously damage future employability, the employer’s investigation of mitigation and consistency must be appropriately thorough. A tribunal errs if it treats the physical occurrence alone as conclusively establishing a reasonable belief in the alleged policy breach, or fails to address material evidence relevant to sanction.

The claimant, a qualified teacher employed to run an after-school club, was summarily dismissed after three incidents of physical contact with children aged seven and eight. The employer considered that allowing children to sit on his lap, and holding one child, were blatant breaches of its safeguarding policy on physical contact.

The claimant accepted the physical events but contended that the policy permitted context-sensitive contact, that two incidents were justified by the children’s circumstances, that one was fleeting, and that other staff also allowed children to sit on their laps. Employment Judge Livesey at Bristol dismissed his unfair-dismissal complaint on 1 December 2014.

On appeal, the central questions were whether the tribunal had properly applied the fairness inquiry under section 98 of the Employment Rights Act 1996, and whether its treatment of the policy, mitigation and consistency evidence was legally adequate.

1. Appeal allowed. The Employment Tribunal’s reasoning was inadequate and disclosed errors of law. The unfair-dismissal claim was remitted to a freshly constituted tribunal for a complete rehearing.

2. The tribunal was correct that conduct was a potentially fair reason under section 98(2) of the Employment Rights Act 1996. It was not, however, necessary to decide whether the claimant’s actual conduct was contractual gross misconduct before deciding statutory unfair dismissal. Gross misconduct principally concerns the contractual entitlement to dismiss without notice. The statutory inquiry under section 98(4) asks whether the employer reasonably treated the conduct which it believed had occurred as sufficient reason for dismissal, in accordance with equity and the substantial merits.

3. The tribunal erred by treating the claimant’s acceptance of the physical events as effectively resolving whether the employer had reasonable grounds to believe the allegation of a blatant policy breach. Policy 32 did not impose an absolute prohibition on physical contact. It permitted a context-sensitive assessment of whether contact was necessary, unnecessary or excessive. The tribunal failed to address adequately the claimant’s case that, at least in relation to one child, his conduct was within the policy, and that another incident was very brief.

4. The tribunal also failed properly to engage with mitigation and consistency. The dismissal letter appeared to state that no lesser sanction was available, although the disciplinary procedure did not prohibit one. There was material suggesting that another staff member may also have permitted a child to sit on their lap. Given the potentially grave effect of a safeguarding dismissal on the claimant’s future career, the employer’s investigation of those matters required particular care.

5. A fresh tribunal was appropriate. The original hearing had been short, the first tribunal’s view appeared settled, and rehearing before it risked a second consideration of matters on which it had already erred.

• Employment Appeal Tribunal: allowed the appeal and remitted the unfair-dismissal claim for a complete rehearing before a fresh tribunal.
• Employment Tribunal, Bristol: Employment Judge Livesey dismissed the claimant’s unfair-dismissal complaint on 1 December 2014.