Appeal No. UKEAT/0072/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 July 2009

Before
HIS HONOUR JUDGE McMULLEN QC
MRS C BAELZ
MR D WELCH

MISS C HENDERSON	APPELLANT

(1) THE LONDON BOROUGH OF HACKNEY
(2) THE GOVERNING BODY OF HAGGERSTON SCHOOL
(3) THE LEARNING TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR GODWIN OWUGAH
(Representative)	
For the Respondent	MS REBECCA TUCK
(of Counsel)
Instructed by:
The Learning Trust (Legal Services)
Technology & Learning Centre (TLC)
1 Reading Lane
Hackney
London, E8 1GQ

SUMMARY
HUMAN RIGHTS
UNFAIR DISMISSAL:  Reasonableness of dismissal
The Claimant was employed as a mentor and leader for girls who had barriers to learning in an inner city school. From her school computer she accessed pornography and distributed it to colleagues. She was summarily dismissed. Art 10 ECHR (freedom of expression) was engaged but the School justified the dismissal as proportionate and as pursuing its legitimate aim in protecting children. The Claimant did not have insight into her actions and the School did not share her view that it was enriching for girls to see pornography, and there was no Internet policy in place. The Employment Tribunal was correct to uphold the School’s decision, rejecting the claims for unfair and wrongful dismissal. 

HIS HONOUR JUDGE McMULLEN QC
1.	This case is about the dismissal of a school mentor who distributed Internet pornography at work, said to be unfair as having breached her Convention right to freedom of expression.  This is the judgment of the court, to which all members appointed by statute for their diverse specialist experience have contributed.  We will refer to the parties as follows.  The Claimant is Miss Henderson.  The London Borough of Hackney is a local education authority which gives the Learning Trust powers to act on its behalf in running schools in Hackney, E. London, one of which is Haggerston School for girls aged 11 – 16, the Second Respondent, and effectively is a decision‑maker in this case, so we will refer to the Respondent here as ‘the School’.

Introduction
2.	It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal chaired by Employment Judge Gilbert sitting over three days at Stratford East, registered with Reasons on 5 December 2008.  The Claimant was represented there and here by her friend Mr Owugah.  The Respondent is represented today by Ms Rebecca Tuck of counsel and by different counsel below.  The Claimant claimed unfair dismissal and wrongful dismissal, the former violating her Convention rights.  The Respondent contended it dismissed her fairly for gross misconduct and did not breach the contract of employment.

3.	The Tribunal rejected the claims under both heads.  She appeals.  Directions sending this appeal to a full hearing were given in Chambers by Wilkie J, who thought the appeal was arguable in relation to Article 10 of the European Convention of Human Rights (ECHR).
The legislation
4.	The relevant provisions of the legislation are not in dispute.  Section 98 of the Employment Rights Act 1996 deals with unfair dismissal and gives conduct as potentially fair. The reason is not disputed.  Fairness is determined by Section 98(4) which provides as follows:

“(4) ….the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonable or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.”

5.	The Human Rights Act 1998 incorporates the Convention rights.  Article 10 of the Convention provides:
“1.  	Everyone has the right to freedom of expression.  This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.  This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2.  	The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

6.	The Act constitutes the Respondent, the London Borough of Hackney, in these proceedings as a public authority.  In the light of that, Miss Tuck, who appears for all three Respondents, takes no point as to any different argument which might have been available to the Trust or to the School.

The facts
7.	The Claimant was employed by the School first in April 2002 as a Learning Mentor.  She had previous experience as an alcohol counsellor when appointed to the post for the purposes of the Government initiative “Every Child Matters”.  The post involved a significant leadership of the Inclusion Team and management of support structures to ensure that the needs of pupils with potential barriers to learning are met.  Thus a clear understanding of child development and other skills was covered including work connected with the emotional well‑being of pupils.  The Tribunal said this:

“9. 	…The Claimant was fully aware of the background to the post and the responsibility attached to it.  Schools have specific obligations under the Every Child Matters agenda and The Children Act 2004.  The agenda aims to ensure that children at risk of harm and neglect are protected from negative outcomes and are instead supported to develop their full potential.  The Claimant’s role required her to take leadership of teaching assistants and mentors in the Inclusion Team.  She was also required to coordinate appropriate intervention for students who have barriers to learning due to emotional, social and behavioural needs.  This includes the most vulnerable students in the second Respondent’s school.  Students may have been on the Child Protection Register, the Special Education Needs Register or have been ‘looked after children’ (foster children).  The Claimant also mentored students on a one to one basis in her office and at times students could be left unsupervised in her office when she had other duties to attend to.  The Claimant also liaised with external organisations to provide additional support to students such as Counsellors, Youth services and Social Services.  She worked closely with students and their families and she had to engender a large amount of trust in her role.  She had a statutory responsibility to safeguard and promote the welfare of children in accordance with the Children Act 2004 and the Every Child Matters agenda.
 10.	The Claimant was also a School Governor for approximately 18 months between July 2005 and March 2007 representing the voice of staff at Governing Body Meetings and working with the Head Teacher to raise standards of the school.

8.	The Claimant viewed and distributed pornography.  In 2006 she forwarded to a colleague from her own mailbox on a computer at the School six pornographic images of women.  Between 4 and 25 May 2007 a number of emails were received by the Claimant which she opened and the Tribunal described the contents thus:

“16.	The 8 emails opened by the Claimant contained 25 different sexually explicit and/or inappropriate images, and two sexually explicit and inappropriate video clips.  One video was from a website called ‘Security Cams Fuck dot.com.’  It was 37 seconds long and was of a naked man and woman having sex in a car park in a number of different positions.  The other video was taken from an NBC program, was 22 seconds long and showed a kangaroo masturbating.”

9.	This material was discovered by one of the School’s employees. An investigation was set up.  By letters of 29 June and 2 July the Claimant was informed that the investigation into these allegations of gross misconduct was complete namely:
•	‘Sending and/or receiving extremely sexually graphic and explicit, inappropriate video material in the workplace.
•	Using school computer(s) in carrying out these activities and thus failing to adhere to policies and expectations with use of school computers and the internet.
•	Having complete disregard in a school context, for the welfare of young people who could have had access to the inappropriate materials that were being circulated:’

10.	She did not attend any of the investigations.  A disciplinary panel was convened.  The Head Teacher, Ms Kalnins, made clear before this that she had no concern about the Claimant’s work ability but that an issue of trust arose which gave her concern as to the future.  The Chair of the School Governors, Mr Hill, acknowledged that there were no explicit rules in relation to Internet use but that the matter, as he put it, boiled down to exercising professional judgment.  It was noted that now that matters had come into the open the Claimant would abide by any Internet policy which the School might adopt.

11.	Mr Hill was concerned that the Claimant had not accepted that there was an error of judgment and had to be assured that she would not do it again.  However, the Tribunal came to this conclusion:

“24.		…The Claimant was then asked if she could assure the Head Teacher that she could trust her.  The Claimant said she could.  She said she didn’t have a blemish on her records.  Mr Hill then asked her if in future she would exercise her discretion differently if she were in these circumstances.  The Claimant wished to ask Mr Owugah and was told she couldn’t do that.  Mr Owugah said the Claimant had already made it clear she wouldn’t do it again and asked if they wanted her to fall on her knees.  It was made clear that the Chairman of the panel was giving the Claimant a chance to put her point across.  Mr [sic] Kalnins then summed up for the Respondent and said that she had doubts over trust and that her confidence had gone.  She stated an error of judgment happens once.  She said she couldn’t trust Claire to make good professional judgment as the Claimant wasn’t admitting anything.  Mr Owugah then summed up on behalf of the Claimant and said she had an unblemished record and that given what had happened she wouldn’t do it again.  He said she had answered questions under difficult circumstances and would not put her pupils at risk.  She was not able to determine when and where other members of staff would open their messages.  Mr Hill asked the Claimant if this was her case and Mr Owugah replied for her and said she agreed with him.”

12.	Findings were made upholding the allegations against her in a letter sent by Mr Hill on 9 October 2007.  In short, the Claimant was found to have sent and received extremely sexually graphic and explicit, inappropriate video material at the workplace and sent them on to another teacher.  She used the school computers in carrying out these activities and failed to adhere to policies and expectations with respect to the use of school computers and the Internet.  She had a complete disregard in a school context for the welfare of young people who could have access to the inappropriate material circulated.  Mr Hill had regard to the Human Rights Act and said this:

“Outcome
We have carefully considered the defence put forward by your representative citing the Human Rights Act, and have taken additional legal advice on this issue.  We have concluded that the Human Rights Act does not provide a defence against proven gross misconduct in employment.  You do indeed have a right to freedom of expression which is protected by law.  It is not suggested by the school that anything you have done in relation to this allegation of gross misconduct is illegal.  We understand your argument to be that because the school has no explicit rule against teaching staff bringing pornography into school or viewing pornography at school then you cannot be disciplined for doing so.
The panel was not convinced by that argument.  It is the Panel’s view that the school justified its interference with your right to freedom of expression on the basis the Headteacher has a clear right and duty to protect the girls of Haggerston School from exposure to such material, and to investigate such allegations accordingly.  The panel’s view was that this was not a defence in this case.
Further, the panel has subsequently been advised that your claim that your rights under the Human Rights Act does not need to be treated as a separate grievance for the purpose of the statutory grievance procedures, as breach of the Human Rights Act is not a cause of action in itself before an Employment Tribunal.
In summing up I write to advise you that the panel has found the allegations of gross misconduct against you, proven.  This misconduct was of such a serious nature that the employer is no longer prepared to tolerate your continued presence.”

13.	The Claimant was summarily dismissed.  The Tribunal noted the challenge to the Respondent’s exercise of its power of dismissal in the human rights context, particularly whether matters might have been dealt with differently.

“26. 	In this Tribunal Hearing the Respondent through Mr Hill said things might have been different if the Claimant had recognised that she had made an error of judgment in forwarding an email with attachments of woman’s [sic] vaginas in school particularly because of her role in the school.  Mr Hill said that if she had recognised the error of judgment she would probably have received a final written warning.  He said the Claimant’s approach was that she had a right to do it.  He said she only thinks it is inappropriate now because she had been told that.  He said that he attached quite a lot of weight to this at the hearing.  He also said he attached quite a lot of weight to the Claimant’s previous unblemished record and it was for this reason that he had pushed her for an answer as to whether or not it was an error of judgment at the hearing.”

14.	No children in the School saw any of this material but the Claimant accepts that there was a risk that they might have seen it for they were left unattended in her room.  Certainly other members of staff did.  The Claimant did not accept that the material was inappropriate and she engaged in a dispute as to the nature of pornography and as to what is appropriate in the 21st century for young girls to see.  She argued that it might be an enriching experience from which the children would suffer no harm.  That was not a view shared by the School.

15.	In light of the finding of gross misconduct, all three Respondents terminated the relationship.  The Tribunal upheld the Respondents’ case on unfair dismissal, finding this:

“Unfair Dismissal
From the facts the Tribunal has found it is clear the Claimant was dismissed for a reason relating to conduct.  It was the Claimant’s view at the time and it remained her contention in the Tribunal that as the material was not illegal then she had done nothing wrong.  She accepted the right to freedom of expression was a qualified right but said in the absence of an Act of Parliament, Statutory Instrument prohibiting her conduct she had done nothing wrong.  The Employment Rights Act is an Act of Parliament which provides the right not to be unfairly dismissed and the reasons and circumstances in which a dismissal may be fair.  A reason relating to conduct is a potentially fair reason for dismissal.  The Tribunal has found there was a reasonable investigation into the alleged misconduct.  It has further found that at the end of that investigation the Respondent believed on reasonable grounds the Claimant was guilty of the misconduct alleged.  The Respondent had regard in reaching its conclusions on the investigation to the Claimant’s contention that her right to freedom of expression means that she had done nothing wrong in the absence of a specific ruling prohibiting staff bringing pornography into school or viewing pornography at school.  The Respondent reasonably recognised the right to freedom of expression was a qualified right and said “it is the panel’s view that the school justified its interference with your right to freedom of expression on the basis the Head Teacher has a clear right and duty to protect the girls at Haggerston School from exposure to such material, and to investigation such allegations accordingly.”  Having carried out a reasonable investigation and concluded the Claimant was guilty of the conduct alleged on reasonable grounds the Respondent decided to dismiss the Claimant.  The Tribunal has to consider whether that was a decision within the band of reasonable responses.  Mr Hill told the Tribunal he took into account the Claimant’s attitude and her unblemished record in the school and it was because of her unblemished record within the school that he persisted in seeking an assurance from her that she accepted there had been an error of judgment.  That assurance was never forthcoming.

16.	The Tribunal then turned to the application of the Convention. It did not expressly say that the it was engaged but for the purposes of the appeal Ms Tuck accepts that that must have been its conclusion for the Tribunal said this:

“The Tribunal finds the decision to dismiss was a decision within the band of reasonable responses.  In reaching our conclusions the Tribunal has had regard to the Human Rights Act and to the Tribunal’s duty to decide whether on the evidence presented to it and on the application of the objective statutory standards of reasonableness fairness equity and the substantial merits set by the Employment Rights Act 1996, to the facts found, the dismissal of the Claimant was unfair and in violation of her rights under the Employment Rights Act 1996 (the right not to be unfairly dismissed and the Human Rights Act).  The claim under the Human Rights Act is not a stand alone claim.  The Tribunal as a public authority within section 6 must apply Section 98(4) of the Employment Rights Act 1996 as far as it is possible in a way that is compatible with convention rights.  The Respondent says the Human Rights Act was not engaged as the Respondent was exercising a private function in regulating its employment arrangements when dismissing the Claimant.  It says if the Human Rights Act was engaged and there was an infringement of the Claimant’s Human Rights then the Respondent’s actions were proportionate.  The Tribunal finds that if the Human Rights Act was engaged then the decision taken by the Respondent was a proportionate one.  The Respondent made it perfectly clear there would have been no interference if the Claimant had opened the emails at home and had forwarded emails from home.  The Respondent never accessed the Claimant’s email account and in relation to other staff involved in the investigation where email accounts were accessed and emails sent to private email accounts outside school and not using school computers then no action was taken.”

17.	The Tribunal then went on to consider wrongful dismissal and came to the following conclusion:
“Wrongful dismissal
The Claimant says she was dismissed without the notice she should have had in breach of her contract.  She says the Respondent breached her contract by summarily dismissing her.  The Tribunal is satisfied that the Respondent’s conclusion that the conduct of the Claimant was gross misconduct was a reasonable conclusion within the Respondent’s disciplinary procedure where irresponsible behaviour of a type to endanger the health and safety of others is an example of gross misconduct, sexual misconduct at work is also an example of gross misconduct as are serious acts of sex discrimination and sexual harassment.  The list is not conclusive it is only examples.
While there is no indication that anyone was subjected to sexual harassment, the Respondent was entitled to conclude that the Claimant’s conduct in the environment she worked [in] and in the context of the role she undertook at the school was gross misconduct.  Her claim for wrongful dismissal fails and is dismissed.”

The Claimant’s case
18.	Mr Owugah, who has argued the case here and at the Employment Tribunal with considerable care, contends essentially that the Employment Tribunal erred in its approach to what was an appropriate and proportionate response bearing in mind Article 10(2).  Since the Claimant was pleading that she would observe any subsequently introduced Internet policy, it was disproportionate for her to have been dismissed rather than for some other measure taken.  It was essentially a punishment, which was wrong.  There was no evidence of any children seeing this material.  In respect of wrongful dismissal it is contended that the Tribunal applied the wrong test, allying itself to what might be described as a reasonable responses test rather than a contractual test for wrongful dismissal.  Mr Owugah contends that if he is right on either of these points then either this Tribunal could decide the matter or it could be sent back to a Tribunal.

The Respondents’ case
19.	On behalf of the Respondents, it is contended that the Employment Tribunal carried out the correct balancing exercise pursuant to Article 10(2).  The acts were of gross misconduct and these acts correspond to provisions in the Respondents’ Disciplinary Code.  Although the criticism of the Tribunal as to wrongful dismissal is accepted, the judgment was nevertheless unarguably right.

The legal principles
20.	The legal principles to be applied in a case where there is interaction between human rights and unfair dismissal are set out in the following authorities.  It is accepted that Hackney is a core public authority as described by Lord Neuberger of Abbotsbury in YL v Birmingham City Council [2008] 1 AC 95 at paragraphs 129 and 131.  Where there is such a relationship between a public authority and a private individual and the Convention is engaged the judgment of Dyson LJ in Samaroo v Secretary of State for the. Home Department [2001] UKHRR 1150 CA is relevant, for his Lordship said this:

“20. At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons? The case of Mr Samaroo engages this question. It is plain that in general terms the objective of preventing crime and disorder is sufficiently important to justify limiting a fundamental right, and that the deportation of those convicted of serious criminal offences (especially drug trafficking offences) is a measure that is rationally connected to that objective. The issue in such a case is not whether there is a less restrictive alternative to deportation as a means to achieve the objective. The sole question is whether deportation has a disproportionate effect on Mr Samaroo’s rights under Article 8(1).”

21.	A full exposition of the interaction between human rights and employment law was given in X v Y [2004] EWCA Civ 662, the Court of Appeal upholding a judgment of the EAT, Mummery LJ giving a judgment with which Dyson and Brooke LJJ agreed.  This is important for it charts the interface of the two measures.  It should be borne in mind that this was a case of a probation officer working closely with the Probation Service The guidance given to Employment Tribunals in dealing with such matters for he said this, and:

“56 The cause of action under section 94 of the ERA and the alleged interference with article 8 are based on the conduct reason for the applicant's dismissal.

(1) If the dismissal of the applicant was for his "private" conduct, that will be relevant to the determination by an employment tribunal under section 98 of an unfair dismissal claim against the employer, whether or not the employer was a public authority. In either case the tribunal has to decide whether the dismissal for that reason was a sufficient reason for the dismissal and was fair.

(2) If the dismissal of the applicant was in circumstances falling within article 8 and was an interference with the right to respect for private life, it might be necessary for the employment tribunal then to consider whether there was a justification under article 8(2) for the particular interference. As explained below, article 8 and article 14 may have to be considered by tribunals in the case of a private sector employer, as well as in the case of a public authority employer, by virtue of section 3 of the HRA. Justification involves considering whether the interference was necessary in a democratic society, the legitimate aim of the interference, and the proportionality of the interference to the legitimate aim being pursued.

(3) On questions of justification the tribunal should bear in mind the complexity of employment relationships. In addition to the right of the employee under article 8 and article 14, the employer, fellow employees and members of the public also have rights and freedoms under the Convention.

The relevance of section 3 of the Human Rights Act 1998 in private employer cases

57 In the case of private employers section 3 is more relevant than section 6 of the HRA, which expressly applies only to the case of a public authority.

(1) Under section 3 of the HRA the employment tribunal, so far as it is possible to do so, must read and give effect to section 98 and the other relevant provisions in Part X of the ERA in a way which is compatible with the Convention right in article 8 and article 14.

(2) Section 3 of the HRA applies to all primary legislation and subordinate legislation. That includes the ERA and the Rules of Procedure in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. Section 3 draws no distinction between legislation governing public authorities and legislation governing private individuals.

(3) The ERA applies to all claims for unfair dismissal. Section 98 of the ERA draws no distinction between an employer in the private sector and a public authority employer.

(4) In many cases it would be difficult to draw, let alone justify, a distinction between public authority and private employers. In the case of such a basic employment right there would normally be no sensible grounds for treating public and private employers differently in respect of unfair dismissal, especially in these times of widespread contracting-out by public authorities to private contractors.

(5) If, for example, the applicant in this case had been an employee of the probation service, he could have brought an unfair dismissal claim against it and, as it is a public authority, he would also have been entitled under section 6 of the HRA to rely directly on article 8, if the facts had fallen within its ambit. If the employment tribunal only had to consider article 8 and article 14 where the employer was a public authority within section 6 of the HRA, a surprising situation would have arisen in a case such as this: the applicant's unfair dismissal claim might be determined differently according to whether his employer was in the private sector, working closely with the probation service, or was a public authority, such as the probation service itself. It is unlikely that the HRA was intended to produce different results.

The employment tribunal as a public authority

58 There is a public authority aspect to the determination of every unfair dismissal case.

(1) The employment tribunal is itself a "public authority" within section 6(3) of the HRA.

(2) Section 6(1) makes it unlawful for the tribunal itself to act in a way which is incompatible with article 8 and article 14.

(3) Those features of section 6 do not, however, give the applicant any cause of action under the HRA against an employer which is not a public authority. In that sense the HRA does not have the same full horizontal effect as between private individuals as it has between individuals and public authorities.

(4) The effect of section 6 in the case of a claim against a private employer is to reinforce the extremely strong interpretative obligation imposed on the employment tribunal by section 3 of the HRA. That is especially so in a case such as this, where the Strasbourg court has held that article 8 imposes a positive obligation on the state to secure the enjoyment of that right between private individuals. Article 14 also imposes that positive obligation in cases falling within the ambit of article 8.”

22.	In succinct conclusions Mummery LJ enjoined Tribunals to deal with points in the following way:
“64.	As indicated earlier, it is advisable for employment tribunals to deal with points raised under the HRA in unfair dismissal cases between private litigants in a more structured way than was adopted in this case. The following framework of questions is suggested -. 
(1) Do the circumstances of the dismissal fall within the ambit of one or more of the articles of the Convention? If they do not, the Convention right is not engaged and need not be considered. 
(2) If they do, does the state have a positive obligation to secure enjoyment of the relevant Convention right between private persons? If it does not, the Convention right is unlikely to affect the outcome of an unfair dismissal claim against a private employer.
(3) If it does, is the interference with the employee's Convention right by dismissal justified? If it is, proceed to (5) below. 
(4) If it is not, was there a permissible reason for the dismissal under the ERA, which does not involve unjustified interference with a Convention right? If there was not, the dismissal will be unfair for the absence of a permissible reason to justify it. 
(5) If there was, is the dismissal fair, tested by the provisions of s98 of the ERA, reading and giving effect to them under s3 of the HRA so as to be compatible with the Convention right? 

23.	Application of those principles was considered by the European Court of Human Rights in Pay v The United Kingdom [2009] IRLR 139. This arose out of a judgment of an employment tribunal which I, with Members upheld (see [2003] All ER (D) 468) and which was upheld by the Court of Appeal.  The outcome of the Claimant’s case at Strasbourg was that admissibility was rejected under both Articles 8 and 10, the Court saying this:

“An interference with the rights protected by that Article can be considered justified only if the conditions of its second paragraph are satisfied. Accordingly, the interference must be “in accordance with the law”, have an aim which is legitimate under this paragraph and must be "necessary in a democratic society" for the aforesaid aim. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a pressing social need and, in particular, is proportionate to the legitimate aim pursued. It is for the national authorities to make the initial assessment of necessity, though the final evaluation as to whether the reasons cited for the interference are relevant and sufficient is one for this Court. A margin of appreciation is left to Contracting States in the context of this assessment, which varies according to the nature of the activities restricted and of the aims pursued by the restrictions (Smith and Grady, cited above, §§ 72 and 87-88). The nature of the activities in this context includes the extent to which they impinge on the public domain.”

24.	That sets out the general principle and it also involves, as a matter of fact, an issue relevant to our case which is the employee’s lack of insight into offending against the norms:
“The applicant does not dispute that his dismissal was lawful. In addition, he appears to concede that it pursued a legitimate aim, namely the protection of the reputation of the LPS.  However, he claims that the measure was disproportionate to that aim.
…
It might have been open to the LPS to take less severe measures, short of dismissal, to limit the risk of adverse publicity caused by the applicant's activities, particularly as there was no evidence that his involvement with Roissy was widely known at that point. However, the Court notes the facts as found by the domestic tribunals, and notably that the applicant did not accept as reasonable his employer's view that his activities with Roissy could be damaging and that, apart from offering to ensure that the electronic links between the Roissy and BB websites were severed, he had not been willing to alter his connection with Roissy. In these circumstances, and given in particular the nature of the applicant's work with sex offenders and the fact that the dismissal resulted from his failure to curb even those aspects of his private life most likely to enter into the public domain, the Court does not consider that the measure was disproportionate.”

25.	As to wrongful dismissal the correct approach is to decide as a matter of fact whether the employee was guilty of gross misconduct.

Conclusions
26.	We prefer the arguments of the Respondent and have decided that the appeal should be dismissed.  The central issue is what is accepted to be a breach of the Respondents’ approach to vulnerable children.  This was a major error of judgment by the Claimant.  She did it on more than one occasion.  As the leadership of the School explained, through the Head Teacher and the Chair of the Governors, it would be difficult in the light of the exchange of this material and the Claimant’s continued attitude to it for them not to have lost trust in her.  This was an act of gross misconduct committed over a period of time involving other members of the School, with the risk that the vulnerable children in the care of the Claimant might have come by it.  The judgment as to what was appropriate for girls of 11 to 16 to see while at school by way of sexually explicit material was one for the School.  It took the view that they should not see this on computers at school.

27.	The Employment Tribunal approached the Convention by assuming in the passage we have cited, that it was engaged.  Miss Tuck contends it was not but if it did then the result is the same: an examination of unfair dismissal in both the public and the private sector is affected, where Convention issues are engaged, by the guidance in, for example, Mummery LJ’s judgment in X v Y.  The Employment Tribunal, therefore, correctly approached its task of evaluating against the standards of a reasonable employer giving effect to human rights pursuant to section 98(4), what the Respondents had done here.  It considered whether the Convention was engaged and we will assume it was.  That means that Article 10(2), providing a limit to the right of freedom of expression came into play.

28.	The Tribunal upheld the approach of the Respondent as one which was proportionate.  It noted that it was the Respondent’s case that had this matter occurred at the Claimant’s home there would have been no action; but this was at school.  Protection under Art 10(2) includes the protection of the rights of others.  This vulnerable group of children, of whom 30 per cent have special needs, clearly fall within the legitimate aim.  Indeed, Mr Owugah helpfully accepts that in shorthand the protection of the interests of the girls was a legitimate aim.

29.	The real issue is whether or not it was proportionate to dismiss the Claimant.  The Employment Tribunal had fully in mind the attitude of the Claimant to what she had done.  In some respects her circumstances are similar within the school environment to the attitude of the Claimant in Pay.  In simple terms she did not have the insight to recognise the potential for harm caused by her action.  In our judgment the Employment Tribunal cannot be faulted in balancing the right of the Claimant to expression and the right and duty of the Respondent to protect children in its care from exposure to pornography.

30.	Absent the Convention aspect of this case, we accept Miss Tuck’s analogue. If the Claimant were engaged at work on a social networking website with no danger of the material affecting vulnerable children, the response of the Respondent would have been the same: this is not to be conducted by a person in its employ in a responsible position of leadership.  As it happens, this employer did consider the human rights aspect and balanced the circumstances.  Whether it was for the Employment Tribunal or the Respondent to conduct that exercise, we hold it has been done in this case and thus we reject the contention that the finding of unfair dismissal was incorrect because of the failure to properly apply Article 10(2).

Wrongful dismissal
31.	We turn then to wrongful dismissal.  Mr Owugah has a substantial point here.  The Employment Tribunal does seem to have confused reasonable responses with a contractual test.  However, we look at the whole of the judgment.  It is plain that the Tribunal was looking at the Respondent’s disciplinary procedure and indicating the kinds of conduct which would be categorised as gross misconduct.  When the Tribunal says that what the Claimant did fell within one of those categories it was making a finding not simply about what the Respondent thought but was backing up the Respondent’s position with its own.  In other words, the Tribunal was forming its own conclusion.  It did not express itself in those terms and did not direct itself expressly on the law of wrongful dismissal.  Nevertheless, we hold that the judgment was unarguably right; applying Dobie v Burns International Security Services (UK Ltd) [1984] ICR 812 CA.

32.	The application of a disciplinary procedure and what constitutes gross misconduct were clearly set out by the Court of Appeal in Dietman v The London Borough of Brent [1988] IRLR 299, and the central finding is that issues such as this are matters of fact.  In our judgment, although not expressing itself as carefully as it might, the Tribunal has plainly found that this conduct fell within gross misconduct as defined by the Employment Tribunal.  If we are wrong about both of those two findings, then the question arises as to what should happen.  The first proposition of Mr Owugah is that we could decide the matter ourselves.  Alternatively, it goes back to the Employment Tribunal.

33.	If it were necessary for this matter to be decided again, we hold that by looking at the policy and procedure of the Respondent and considering as a matter of fact the material which the Tribunal has made findings about, we would be in no difficulty ourselves in concluding that this was gross misconduct.  It thus justified summary dismissal and the claim for five weeks’ notice pay was correctly rejected by the Employment Tribunal.  

34.	The appeal on both grounds is dismissed.