Appeal No. UKEAT/0043/04

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 27 August 2004

 
Before
THE HONOURABLE LORD JOHNSTON
DR A H BRIDGE
MR M G SMITH

 

GREAT OAKS KIDS CLUB LTD	APPELLANTS

 

 
Ms CLARE MARY HARVEY	RESPONDENT

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 
 
For the Appellants	Mrs L Timmins, Solicitor
Of-
Messrs Burness
Solicitors
50 Lothian Road
Festival Square
EDINBURGH   EH3 9WJ

 

For the Respondents

 

 

 

Mr D J Maguire, Solicitor
Of-
Messrs Allcourt
Solicitors
1 Carmondean Centre
Carmondean
LIVINGSTON   EH54 8PT

 

 

 

 

 

 

 

 
 
SUMMARY

UNFAIR DISMISSAL

Unfair dismissal – reasons.
Compensation

 

 

 

 

 

 

 

 

LORD JOHNSTON:
 
1.	This is an appeal at the instance of the employer against a finding of the Employment Tribunal sitting in Glasgow, to the effect that the respondent employee had been unfairly dismissed, making a monetary award as a consequence.  The appellant appealed both against the substantive finding, and, certain aspects of the compensatory award, which we will deal with separately.
 
2.	The respondent was engaged as a project manager of a three-site after-school children’s club which was run by the appellant.  The facts were not substantially in dispute.
 
3.	The respondent was required to keep a register in respect of the children that were to attend the school, and, particularly, in respect of those who had to be picked up by fellow employees from the various schools that they attended.  The background to the dismissal was that the respondent had apparently embarked upon a system, it appears, of her own, whereby any temporary or ad hoc requirement for a child to be picked up on a particular day, was entered in the register by means of a post-it note and not by any formal entry in the document itself.  On the particular occasion in question, the post-it note apparently became detached, inasmuch, that the person who went to the particular place to pick up the children, did not pick up the child in question, although she (the child) indicated that she was supposed to go to the club.  A complaint from the parent led to a disciplinary hearing and her subsequent dismissal.
 
4.	The parties were agreed that the Tribunal had correctly considered the law and simply disagreed on their application to the facts, which meant that Mrs Timmins, who was appearing for the appellant, had to satisfy us that the decision of the majority in favour of the respondent was perverse, and, that furthermore, the decision of the minority, the Chairman, was not only to be preferred but was in fact the only one available to a Tribunal properly considering the issue.
 
5.	The reasoning of the majority was as follows:-
 
“The majority view was that before imposing the sanction of dismissal, a reasonable employer would give consideration to the applicant’s duties and responsibilities, and the extent to which she failed in performing these.  They would also have taken into account the very wide range of duties which fell to the applicant and how much was expected of her, particularly given her background and the lack of training provided to her.  In reaching the decision to dismiss the applicant the respondents relied upon the fact that the applicant had been given a final written warning on 22 November 2002, which among things, raised the importance of maintaining a robust system of child registration.  No guidance was given to the applicant as to how she should implement but this was not a factor which the respondents took into account in reaching their decision.  The applicant told the respondents at the disciplinary hearing that this was her normal system, however in reaching their decision to dismiss the respondents failed to take account of the fact that this was the system which was in place and the applicant had been told by the respondents not to implement any changes in policies or procedures without the committee’s say so.  They also failed to take into account the fact that a very short period of time had elapsed between the issue of a final warning (22 November 2002) and the second incident (19 December 2002).  They failed to take into account was the fact that that no help or support had been given to the applicant during that period in order to review procedures and to implement a robust system of child registration.  The majority felt that the change in the composition of the committee, (Mrs Glen’s evidence was that the committee was somewhat depleted at the point when she became chair) added to the lack of support which the applicant experienced.  A reasonable employer would have taken into consideration what steps had been put in place to assist the applicant, and whether or not her conduct was such that it entitled them to conclude that her use of a post it note to record an addition to the collection register and her failure to complete a form for invoicing purposes, constituted gross misconduct on her part in these circumstances.  The majority concluded that the committee in deciding to impose the sanction of dismissal had relied upon the final written warning, and a reasonable employer would not have done so in this case.  The reason for that is that firstly the final written warning given to the applicant was in effect a final written warning given to her for matters over which she had already been disciplined.  Secondly the majority of matters for which she had been disciplined on that occasion, amounted to capability, as opposed to conduct issues, and a reasonable employer, would have taken into consideration how little training and support was available to the applicant given the breadth of tasks which she was expected to undertake.  In the circumstances a reasonable employer would have concluded that the imposition of a final written warning was an unreasonable sanction to impose and it should not have been relied upon in subsequent disciplinary action.  The majority felt that the decision of Louise Martin not to award the applicant a full pay rise was unfair and in breach of her contract.  They also felt that the fact that the applicant had seen a copy of a disciplinary letter (in connection with the first disciplinary action taken against her) which had been left on a computer in the office where she worked and then received one in different terms rendered the disciplinary first disciplinary action against the applicant action unfair.  The majority felt that Louise Martin influenced the committee and that not all of the relevant circumstances about the applicant’s employment were placed before them. For example Mrs Martin told the committee that the applicant had been disciplined in connection with the summer play scheme, when in fact she had not told the applicant this.  The majority felt that although Mrs Malinder and Mrs Glen where in the main sympathetic and credible witnesses their involvement came too late and they were not fully aware of all the applicant’s circumstances.  The combination of all of these factors meant that the sanction of dismissal was simply too harsh, and fell out with the band of reasonable responses open to a reasonable employer.”
 
6.	The submissions of Mrs Timmins substantially mirrored the conclusions of the minority Chairman.  In particular, she submitted that the Tribunal had misdirected themselves on the question of training, that they had failed properly to have taken into account the paramount considerations relating to the safety of children, which went to the heart of this matter.  They should not have taken into account the existence of the previous written warning, since it dealt with some entirely different matter, and they failed properly to give consideration to what an employer could regard as the gravity of a system which was defective when it came to an essential issue of child safety.
 
7.	We regard these as part of submissions but they must be viewed in the context of the role of this Tribunal, which is not to rehear the evidence or review factual decisions, save, when the one under attack, is such as no reasonable Tribunal, properly instructed, could have achieved.  Where there are two sides to the question, as here, it is usually extremely difficult for an appellant before this Tribunal to persuade it that the Tribunal should have come to the opposite conclusion from the one it actually reached, notwithstanding how persuasive the argument in respect of the minority view might be.
 
8.	It precisely that position that this Tribunal finds itself to be in.  The issue is balanced but it cannot, in our view, be said that the only possible view available to the Tribunal was that the employer acted reasonably in dismissing.  There is a question about their own procedures; there is a question about the extent to which they instructed the respondent on the whole issue of the register and the protection of children’s safety, and, there is also a question, only hinted at in the hearing, as to the extent to which they should have checked to what was happening.  There may even be a question, also hinted at, that the post-it system was in use at another site, and, accordingly, it was incumbent upon the employer to check that it was not being used at this site and instruct a different method.
 
9.	Be that as it may, it is not for us to substitute our own view for that of the Tribunal, and we do not consider the majority of the Tribunal substituted their own view in reaching the conclusion they did, to that of the employer.  The role of the Tribunal was not to place itself in the position of the employer but rather to express a view as to whether or not what the employer actually did could be regarded as falling within the band of reasonable responses.  We consider that the Tribunal in this case has directed itself to that issue and had reached a decision it was entitled to make, however powerful the opposite view might be seen to be.
 
10.	In these circumstances we do not consider it is appropriate for this Tribunal to interfere with the decision and the appeal on the merits will be dismissed.
 
11.	Turning to the question of remedy, we recognise the award made by way of compensation was high, but it was based upon the fact that the employer, apparently, gave an unfavourable reference to a subsequent employer, which caused the respondent to lose the job that she had acquired, and, furthermore, appears to have blighted her in the area of childcare generally.  She has not obtained another job as yet and we do not consider that therefore one year’s future loss was excessive.
 
12.	Equally, the percentage of 20% attributed to the contributory fault of the respondent, cannot be said to be disproportionate, which is the test to be applied by this Tribunal.
 
13.	In these circumstances the appeal, both on the merits and the remedy, will be dismissed and the decision of the Employment Tribunal affirmed.