MISS S LEWIS v THE GOVERNING BODY OF TAI'RGWAITH PRIMARY SCHOOL

The Employment Appeal Tribunal dismissed the appellant's challenge to an Employment Tribunal's finding that, although the claimant had been unfairly dismissed under s98 of the Employment Rights Act 1996 because the employer had failed to make reasonable efforts to secure important witness attendance at the disciplinary and appeal hearings, the claimant's own conduct in using unnecessary force on a pupil was blameworthy and causative of dismissal. The Employment Tribunal reduced both the basic and compensatory awards by 100% under sections 122(2) and 123(6) ERA 1996. The EAT held that the tribunal had properly applied the legal tests for contributory fault (as derived from Steen and related authorities), was entitled to make its own factual findings about the short incident, that paragraph 25.5 was not perverse, and that a 100% reduction is lawful where the tribunal finds no causal link between procedural failings and the dismissal.

Background and parties: The claimant was a foundation years teacher employed since 2001. Following an incident on 15 March 2016 in which the claimant took the arm of a pupil (referred to as Child B) and pulled him to the floor, the pupil's mother complained. After a police enquiry and an independent investigation report, the school held disciplinary and appeal hearings. The Employment Tribunal (Swansea, December 2019; written reasons 4 February 2020) found the dismissal unfair because the employer did not make reasonable attempts to secure the attendance of two teaching assistant witnesses. The tribunal nonetheless found that the claimant had used unnecessary force and reduced both the basic and compensatory awards to nil. The claimant appealed to the EAT.

Nature of the claims and relief sought: At first instance claims included disability discrimination, victimisation and unfair dismissal; those other claims were dismissed. The present appeal concerns the ET’s finding of ordinary unfair dismissal under s98 ERA 1996 and, specifically, the tribunal's decision to reduce both basic and compensatory awards by 100% due to contributory conduct.

Issues before the EAT:

• Whether the ET erred in law by failing to distinguish properly between basic and compensatory awards when considering contributory fault;
• Whether the ET failed to consider whether procedural failings contributed causally to the dismissal;
• Whether the ET failed to consider the degree of the claimant’s blameworthiness and to give adequate reasons for a 100% reduction;
• Whether the ET’s finding (paragraph 25.5) that the claimant had lost her temper, acted inappropriately and used unnecessary force was perverse.

Reasoning and outcome: The EAT analysed the steering authorities on contributory fault and causation and emphasised the separate inquiries under sections 122(2) and 123(6) ERA 1996. It held that when addressing contributory fault the ET must make its own findings of fact about the employee's conduct (Steen) and was not bound by the employer's assessment. The tribunal had found the teaching assistants' evidence compelling and had permissibly rejected the claimant's inconsistent accounts; paragraph 25.5 was a lawful characterisation of those findings and not perverse. The EAT also accepted that the procedural failings identified by the tribunal did not have a causal link to the dismissal; accordingly a 100% reduction from both awards was open to the tribunal. The appeal was dismissed.

Appeal dismissed. The EAT held that the Employment Tribunal properly found unfair dismissal because the employer failed to make reasonable attempts to secure witness attendance, but was also entitled to make its own factual findings that the claimant used unnecessary force. Applying the tests in Steen and related authority, the ET lawfully concluded that the claimant's blameworthy conduct caused the dismissal and justified a 100% reduction of both basic and compensatory awards; paragraph 25.5 was not perverse and the tribunal's reasons, read as a whole, were adequate.

Employment Tribunal (Swansea) hearing over 11 days in December 2019; written reasons issued 4 February 2020. Permission to appeal to the Employment Appeal Tribunal granted by Mr Matthew Gullick QC (sitting as Deputy High Court Judge). Appeal determined by the EAT, judgment [2022] EAT 16.