Witts v Wyre Forest School

In a conduct-dismissal case, the tribunal must assess fairness under Employment Rights Act 1996, section 98(4), by reference to the conduct which the employer actually found and treated as the reason for dismissal. It must not characterise a reactive response to an assault as a proactive physical intervention.

Where an employee is attacked, the tribunal must consider whether dismissal for the employee’s physical response, viewed in its context, fell within the range of reasonable responses. That inquiry includes any issue of self-defence. An earlier ill-judged intervention may be relevant context, but cannot replace assessment of the later response where it was not itself the reason for dismissal.

The Claimant, a long-serving teaching assistant at a special school, was summarily dismissed for gross misconduct after an incident involving a pupil. He had initially pulled the pupil away from a school entrance. Later, after the Claimant had walked away, the pupil attacked him from behind and ended on the ground during the Claimant’s physical response.

The Birmingham Employment Tribunal dismissed his unfair-dismissal claim. It held that the Respondents reasonably believed he had committed misconduct, had conducted a reasonable investigation, and had acted within the range of reasonable responses.

The Claimant appealed on two grounds: that the Tribunal had failed properly to consider self-defence in the later part of the incident, and that the investigation was unfair because the pupil’s personal handling plan had not been provided.

1. Appeal allowed in part. The Employment Tribunal erred in its approach to the first ground and the unfair-dismissal decision was remitted to a differently constituted Employment Tribunal.

2. The Tribunal had conflated two materially distinct parts of the incident. The first was the Claimant’s admitted, proactive intervention in pulling the pupil down a ramp. The Respondents had said that conduct alone would have attracted only a verbal warning. The later event occurred when the pupil attacked the Claimant from behind. The disciplinary panel had described that as physical action by the Claimant, rather than a further intervention.

3. Under section 98(4) of the Employment Rights Act 1996, the Tribunal had to assess the fairness of dismissing the Claimant for his physical response to that attack. The earlier intervention could reasonably be relevant context. It could not, however, displace the required inquiry whether treating the reactive conduct as gross misconduct fell within the range of reasonable responses. That inquiry raised the possible justification of self-defence. The EAT could not be confident that the Tribunal had addressed it on the correct factual basis.

4. The second ground was dismissed. The Tribunal had expressly addressed both the substance and procedure concerning the personal handling plan. Although the document might have supported an argument about staffing levels, the Claimant did not pursue the point in his internal appeal. The appeal process provided an opportunity to correct any disciplinary-stage defect, and the Tribunal was entitled to find that the Respondents reasonably did not revisit it.

5. Applying [2004] IRLR 763, remittal to a different Employment Tribunal was appropriate. The original hearing was short and its factual findings could largely stand, but a fresh tribunal was needed to determine the identified issue without concern that the original Employment Judge had already reached a view.

• Employment Appeal Tribunal: allowed the appeal on the self-defence and characterisation issue, dismissed the challenge concerning the personal handling plan, and remitted the unfair-dismissal claim to a different Employment Tribunal.
• Birmingham Employment Tribunal: dismissed the Claimant’s unfair-dismissal claim following a hearing on 3 and 4 February 2016; its judgment was sent to the parties on 29 February 2016.