The EAT has held that a teacher received a fair disciplinary hearing, despite the fact the employer had failed to disclose certain evidence to the disciplinary panel. The EAT found that the employer had conducted an adequate investigation, even in light of the career-changing impact of the allegations on the teacher and the higher standard of investigation that was therefore required (Hargreaves v Governing Body of Manchester Grammar School, UKEAT/0048/18/DA).

Background

Under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must decide whether a dismissal was fair or unfair, having regard to the reason shown by the employer and whether, in the circumstances (including the size and administrative resources of the employer's undertaking), the employer acted reasonably or unreasonably in treating the reason for dismissal as a sufficient reason for dismissing the employee; which question shall be determined in accordance with equity and the substantial merits of the case. 

In Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, the EAT summarised the correct approach for the Employment Tribunal to adopt in answering the question posed by s98(4) of the ERA, including that the question for an Employment Tribunal to decide is whether the respondent's decision to dismiss the employee fell within the 'band of reasonable responses' of a reasonable employer.

Facts

The Claimant was a teacher at Manchester Grammar School (School) with an unblemished career until he was alleged to have grabbed a pupil, pushed the pupil against a wall and put his fingers to his throat. (The Claimant's version of events was that he had seen a pupil rugby rackling another boy, at which point he purported to have taken hold of him by his rucksack in order to break up the pupils.)

The School conducted an investigation into the allegations, including interviewing many different pupils and members of staff who had witnessed the incident.  A small number of witnesses interviewed stated that they had seen nothing untoward, but the member of staff conducting the investigation decided not to disclose those interviews to the disciplinary panel, in the belief that it would not help progress the matter. 

The Claimant was given the opportunity to call witnesses to the disciplinary hearing. The School also followed up the Claimant's requests to interview further pupils, but the further interviews did not corroborate the Claimant's version of events. On the balance of probabilities, the School concluded that the allegations were proven and the Claimant was summarily dismissed. The Claimant appealed the decision but the appeal was not upheld. 

Employment Tribunal 

The Employment Tribunal (Tribunal) held that the investigation had not been biased against the Claimant and that it was within the band of reasonable responses not to inform the Claimant or the disciplinary panel about interviews with those who had seen nothing.  It did not follow that, just because those individuals had seen anything untoward, that nothing had happened. 

The Tribunal was also satisfied that proper questions had been put to the witnesses, that the Claimant had understood the allegation against him, that he was able to provide his version of events and that he had been given the opportunity to ask for further questions to be put to the witnesses. Overall, the Tribunal held that the School had approached the process with an open mind and had properly taken account of the relevant evidence. 

Employment Appeal Tribunal 

The Claimant appealed the decision to the Employment Appeal Tribunal (EAT) based on the following arguments: 

1. The Tribunal had made a mistake regarding the significance of the evidence of the member of staff and pupils whose interviews were not disclosed to the Claimant.  The Claimant argued that the fact those individuals saw nothing untoward corroborated his version of events. 

2. The Tribunal's misunderstanding of the evidence of the interviews which were not put forward to the Claimant or the disciplinary panel fed through into their decision that it was within the band of reasonable responses not to inform the Claimant and the disciplinary panel about the interviews with these witnesses.  The Claimant argued that this part of the Tribunal's decision was therefore flawed.

3. The Tribunal failed to apply the relevant case law, in particular the guidance in the case of A v B [2003] IRLR 405 EAT and had failed to heed the EAT’s previous warning that it should not assume that the evidence of witnesses would add nothing, or that the statements would not be of assistance to the Claimant.

The EAT dismissed the Claimant's appeal.

The EAT did not consider that the Tribunal was unaware of the significance or that they misunderstood the evidence of the interviews which were not put forward to the Claimant or the disciplinary panel.  In fact, the EAT noted that the Tribunal was satisfied that no one else saw the incident in the way described by the Claimant and that a number of witnesses did see an interaction that corroborated the account given by the pupil.

The EAT confirmed that the decision whether to take the investigation further in respect of the particular witnesses had been judgment call for the investigator. That decision had to be tested against the particularly stringent standards which would apply in a case such as this.  In the circumstances, the EAT upheld the Tribunal's decision that there was nothing to suggest that it would have been relevant to provide statements to the disciplinary panel from the individuals interviewed who saw nothing untoward. The EAT explained that they took this decision not only because the Tribunal took the view that it would have made no difference, but because the Tribunal was satisfied that the School had reasonably formed the view that the evidence in question was immaterial and that it could not assist either the Claimant or the disciplinary panel.

The Tribunal had found that the School was entitled to consider that the evidence of these witnesses went nowhere. The EAT confirmed that this was a permissible conclusion for the Tribunal to reach and that the School's decision in this respect fell within the 'band of reasonable responses'.

The EAT noted that the Tribunal had expressly reminded itself of the relevant guidance and the case law for investigations where the allegations would have a devastating effect on the accused. The EAT did not think that the Tribunal lost sight of this point when determining the question of fairness in the Claimant’s case.  Accordingly, the EAT dismissed the Claimant's appeal. 

Comment  

This case provides some reassurance to employers conducting investigations into serious allegations that the requirement to act reasonably entails taking a proportionate approach to disclosing relevant evidence in a disciplinary matter. However, although the EAT upheld the decision that the dismissal was fair despite the employer failing to disclose evidence to the disciplinary panel, this is not an approach to be replicated without due care.  The EAT reiterated previous case law from A v B on the importance of a higher standard of investigation where serious allegations are presented.  For example, allegations of criminal misbehaviour must always be the subject of careful investigation and the investigator should focus no less on any potential evidence that may exonerate or point towards the innocence of the employee then on the evidence directed towards proving the charges against him.  

Here, the EAT noted that the Tribunal was satisfied that no one else saw the incident in the way described by the Claimant and that a number of witnesses did see an interaction that corroborated the account given by the pupil.  The EAT also commented that this was not a case where the Claimant was unaware of the evidence in question; he could have asked for the evidence to be pursued but chose not to do so; therefore it was not an error of law for the Tribunal to take that into account.  

Hargreaves v Governing Body of Manchester Grammar School 

This article was drafted by Florence Millar, Trainee Solicitor