EAT Unfair Dismissal: Reasonableness of Dismissal – Unfair dismissal – fairness of dismissal
The Appellant (the Claimant below) had been a Teaching Assistant for over 20 years, some 19.5 of which were at the First Respondent School – a state school for pupils with special needs – where he had an unblemished disciplinary record. On 12 March 2015, there had been an incident at the School involving a pupil, VB; initially the Appellant had intervened to pull VB away from a door into the School – conduct which the Respondents criticised but saw as warranting no more than a verbal warning – but as he walked away, VB attacked the Appellant from behind, causing the Appellant to suffer various injuries. As the Appellant responded to the attack, VB ended on the ground with what was described by others as ‘a thud’. After a disciplinary hearing, the Respondents determined this amounted to gross misconduct and the Appellant should be summarily dismissed. The ET rejected the Appellant’s complaint of unfair dismissal, holding he had been dismissed because of his ill-judged intervention with VB, contrary to the Respondents’ training (which encouraged de-escalation), which had caused VB to land on the ground; the Respondents had a reasonable belief in the misconduct and had carried out a reasonable investigation and process. Although the Appellant had asked to see various documents, he failed to respond to the Respondents’ request for better explanation as to what he was seeking, failed to ask to see the documentation made available at the disciplinary hearing and made no complaint about not seeing this in his subsequent appeal. The dismissal was for a reason relating to the Appellant’s conduct and was fair in all the circumstances.
Held: allowing the appeal in part
The ET’s reasoning had wrongly characterised the Appellant’s conduct as a physical ‘intervention’ both in the first part of the incident – his admitted intervention in pulling VB down the ramp – and at the end – when in fact the Appellant was responding to an attack from behind. That was not how the disciplinary panel had described the situation, allowing that the latter part of the incident had involved ‘physical action’ on the Appellant’s part, not a proactive intervention as such. Recognising the different nature of the Appellant’s conduct at the start of the incident and at the later stage was a relevant factor given that the Respondents had said he would not have been dismissed simply for the initial intervention – that was not the reason for his dismissal. In the circumstances, the ET had needed to assess whether it was fair to dismiss the Appellant for his physical action in responding to VB’s attack on him from behind. In assessing that question, an employer might reasonably consider that the context – including the Appellant’s earlier ill-judged intervention – was a relevant factor (although here the Respondents had taken the view that the earlier intervention itself would not have led to the dismissal) but the ET would also need to ask whether it was within the range of reasonable responses to consider this physical response an act of gross misconduct given that the employee was himself being attacked from behind at the time, which raised the issues of self-defence relied on by the Appellant. The appeal would be allowed on this basis.
As for the second basis of challenge, however, the ET had not lost sight of the issues raised in respect of the PHP but had expressly dismissed the point being made, both as a matter of substance and procedure. It had, moreover, noted that the Appellant had the opportunity to raise this as a matter on appeal but chose not to do so: if the Respondents had been at fault at the disciplinary hearing stage, the appeal allowed for this to be rectified but the Appellant did not pursue it as a point and the Respondents were reasonably entitled to take the view that it was not something that needed to be revisited. The second ground of appeal was dismissed.
Judges:
Ready QC J
Citations:
[2017] UKEAT 0160 – 16 – 1303
Links:
Jurisdiction:
England and Wales
Employment
Updated: 24 March 2022; Ref: scu.582069