Henderson v London Borough of Hackney

This is an appeal against a judgment of the Employment Appeal Tribunal (“EAT”), HHJ McMullen QC presiding, of 13 July 2009 by which the EAT dismissed an appeal against the judgment of an employment tribunal ("the tribunal") held at Stratford on 6 December 2008. The tribunal dismissed the complaints of Ms C Henderson, the applicant, that she was unfairly dismissed and that she was wrongfully dismissed. The tribunal held that her employers, the governing body of Haggerston School, the second respondents, were entitled to dismiss her summarily.

The London Borough of Hackney, the first respondents, had contracted out of the responsibility for staffing matters at Haggerston School to the second respondents. The management of the school had been entrusted to the Learning Trust, the third respondents.

In February 2006, the applicant, who had considerable experience as a counsellor, was appointed to a new role of inclusion manager created in response to a Government green paper entitled "Every Child Matters". At paragraph 9 the tribunal described the duties of the appellant:

The claimant's role required her to take leadership of teaching assistants and mentors in the inclusion team. She was also required to co-ordinate appropriate intervention for students who had barriers to learning due to emotional, social and behavioural needs. This includes the most vulnerable students in the second respondents’ school. Students may have been on the Child Protection Register, the Special Educational 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. For about 18 months the applicant had also been a school governor representing the staff at meetings of the governing body.

In May 2007 the second respondents’ Business and Finance Manager was informed by a member of staff that other members had been viewing inappropriate and pornographic videos on a school computer positioned in an office behind reception which was accessible to all staff members. The staff member had found the image pornographic and offensive and complained. An investigation was conducted by the head teacher, who discovered, as found by the tribunal, that "six members of staff, three of whom were agency workers, were involved in a chain of email correspondence attaching sexually explicit images and videos". The appellant was one of the staff members.

An investigation of computers revealed that the applicant had "emailed to another member of staff a sexually explicit email on 6 September 2006 and the email contained attachments of naked women exposing vaginas". The appellant was suspended by the head teacher on full pay pending further investigation. The hard drive on the school computer was opened and it was found that on 6 September 2006 the applicant had forwarded to a colleague six separate images of naked women exposing their vaginas. That was done on the school computer during school hours while students were on site. It was also found that on eight occasions on different days in May 2007 during school hours the applicant had opened and viewed inappropriate emails and video clips on her school computer. The eight emails contained 25 different sexually explicit and/or inappropriate images and two sexually explicit and inappropriate video clips. One was 37 seconds long and was of a naked man and woman having sex in a car park in a number of different positions. Another, 22 seconds long, showed a kangaroo masturbating. Restructuring of the computer had made investigation of its contents prior to May 2007 impossible. That is a summary of the findings of the tribunal at paragraphs 15 and 16.

The applicant was invited to an investigation meeting and a school disciplinary procedure by letter on 6 June 2007. She did not attend the meeting but was represented by two union representatives. The applicant was told that allegations of gross misconduct would be considered at a disciplinary hearing on 18 July 2007 following adjournments made at the request of the applicant's trade union representative. A hearing was arranged for 5 October 2007.

The applicant no longer wanted the union to represent her and was represented by Mr Owugah, a lay person who subsequently represented her before the tribunal and has represented her in this court, with the leave of the court, as a result of Sedley LJ's statement, when he referred the application to a court of three members, that:

The tribunal set out in considerable detail the proceedings at the disciplinary hearing. The second respondents’ case was that:

The charges against the applicant, as recorded by the tribunal at paragraph 25 of their determination:

The central point made by Mr Owugah at the disciplinary hearing was that the school had no case because the restriction on sending emails had not been put in writing. In answer to the Chairman he stated that the only reason he believed it was not a case of gross misconduct was there was no internal policy. The appellant said that if there was a policy she would have followed it.

When put to her that "it boiled down to exercising professional judgment” the applicant said that " now that everything had been laid out she would follow that ". She said that she would forward the video "to people that would appreciate that kind of humour " and once she had sent it she deleted it. She said that she could assure the head teacher that she could trust her. The representative of the second respondents, the school governors, stated that "she had doubts over trust and that her confidence had gone".

The panel concluded, following the hearing, "that you did in fact send and receive extremely sexual graphic and explicit inappropriate video material in the workplace.” It commented:

The appellant appealed against that decision but withdrew her appeal in January 2008. The present proceedings were commenced.

The tribunal found that the respondents had carried out a reasonable investigation. The evidence from the respondents was that, while quite a lot of weight had been attached to the applicant's previously unblemished record, importance was also attached to the failure of the applicant to accept that she had made an error of judgment, but instead claimed that she had a right to do what she had done and only now thinks it inappropriate because she has been told so. The applicant claimed that some of the images were available in retail outlets. She accepted that the colleague to whom she had forwarded the email worked in a room with two other colleagues where children may be present. The applicant accepted that it was possible an image might be viewed by a pupil.

The tribunal summarised the applicant's case made to the tribunal. The applicant relied on her rights under Article 10 of the European Convention on Human Rights. It was a matter of opinion, fiercely debated, what was damaging activity for young people. The applicant, it was submitted, could not be punished for her opinions without it having been made clear to her that she could not access the images. If it came up again she would contact her line manager. The applicant did nothing wrong and had nothing to apologise for, it was submitted to the tribunal. Sending the images to a colleague who was an adult did not make her guilty of anything. While a child seeing such images would not be enriched by the experience, the child would not suffer any harm, it was submitted.

In submissions for the respondents at the tribunal, counsel then appearing, Ms Banton, underlined that the applicant worked with the most vulnerable 11- to 16-year-olds in the school. I interpose that Ms Tuck has appeared for the proposed respondents today. We have not called upon her but we have considered her skeleton argument. The applicant's actions were incompatible with the duty of care owed to pupils by the school. The applicant had failed "to take on board the gravity of such sexually explicit material in the school environment". There was no acceptance of a serious error of judgment and this was vitally important where someone was in a position of trust. The applicant was still showing no remorse or contrition. It was unacceptable to forward pornography when at work in a school environment with vulnerable children, it was submitted.

In its clearly stated conclusions the tribunal found that the applicant's view at the time and before the tribunal was that "as the material was not illegal then she had done nothing wrong”.

It was also found that the applicant's view was that "...she had done nothing wrong in the absence of a specific rule prohibiting staff bringing pornography into school or viewing pornography at school.” The respondents had persistently sought an assurance from the applicant that she accepted there had been an error of judgment but the assurance was never forthcoming. That is a quotation from the paragraph in the tribunal's determination headed “Conclusions Unfair Dismissal” at the end of the first paragraph.

The tribunal did not repeat its reasoning in relation to wrongful dismissal but stated that the respondents' conclusion "...was a reasonable conclusion within the Respondents’ disciplinary procedure where irresponsible behaviour of a type to endanger the health and safety of others is an example of gross misconduct....".

In relation to unfair dismissal the EAT upheld the conclusion of the tribunal, stating that what the applicant had found “..is not to be conducted by a person in its employ in a responsible position of leadership". As to wrongful dismissal the EAT pointed out that the tribunal had "confused reasonable responses with a factual test”. They went on to find that the tribunal had formed its own conclusion and the judgment of the tribunal had been unarguably right, applying Dobie v Burns International Security Services UK Limited [1984] ICR 812.

I mention at this stage one point raised on behalf of the applicant, though it is not one which has been pursued orally. At one stage the EAT erred in its understanding of the evidence, stating at paragraph 14 that: "viewing the material might be an enriching experience for the children according to the applicant.” What the applicant had said, as recorded by the tribunal, was that :

It is clear that the tribunal considered the evidence with considerable care. They were well able to assess the gravity of the applicant's conduct and to form a judgment as to whether in context it amounted to gross misconduct justifying instant dismissal. The internal disciplinary procedures were conducted fairly and conscientiously and there is no complaint about that.

The submissions made on the appellant's behalf are first taken in the order which Mr Owugah made them, that the images which formed the basis for the disciplinary proceedings were not of an extreme kind. It is accepted that six of them were sexually graphic and explicit. It is accepted that it is for the panel and the tribunal to make findings of fact. In this respect the tribunal adopted those of the panel. The applicant relies on the nature of the images as material to the question of proportionality, to which I will turn.

The second submission is that what the applicant did was not gross misconduct within the meaning of the respondents’ own disciplinary procedures. At paragraph 15 of those procedures, page 139 of the core bundle, a series of examples of gross misconduct are set out. On behalf of the applicant Mr Owugah submits that these are all cases of conduct causing harm or likely to cause harm, or at least have a very real possibility of causing harm. That cannot be said, on the evidence, it is submitted, of the applicant's conduct. There is a common thread in the examples given and, applying the ejusdem generis principle, conduct can only be gross misconduct within the respondents’ definition if there is at least that real possibility of harm. The document is to be construed as a matter of law. Reference is made to the case of Dietmann v Brent LBC [1988] ICR 842, a decision of this court. The tribunal had not found as a fact that there was a likelihood of harm arising from the conduct of the applicant, though it had referred to the evidence that there was a risk of children at the school seeing these images.

The facts in Dietmann were very different. That was a case where it was found that the conduct of the applicant was not gross misconduct. What was alleged against her in a childcare situation was that her non-intervention in flawed social work by the social worker was grossly negligent. I do not accept that the conduct found to have been practised was incapable of being gross misconduct within the meaning of the disciplinary procedures. The general definition is:

The list to which I have referred is followed in heavy type by the words "this list is not exhaustive". The conduct found by the employers to be unacceptable was conduct of a different kind from those spelt out in the examples, although it does overlap with some of them. I am far from persuaded, however, that it was not capable of being gross misconduct having regard to the workplace and to the nature of the applicant's employment. A further point made is that only after the event did the respondents produce a detailed code as to the use of computers at work, and we have been referred to that. In my judgment the absence of a specific statement being advanced that the conduct complained of by the employers was "gross misconduct" does not prevent them from finding that it was gross misconduct in the circumstances of this case.

It was entirely appropriate for the panel and the tribunal to have regard to the vulnerability of the girls and to the importance of the employers having trust and confidence in a senior employee to whom they had entrusted the care and teaching of children. I have no difficulty with the concept that conduct of this kind, receiving and observing on a computer in school time pornographic images and forwarding them to a fellow employee, was in context gross misconduct. This is of course conduct of a kind which only in recent years has become possible, computers at work being a comparatively recent addition to the facilities available. It is not surprising that even in 2006 a detailed code, which employers now increasingly it appears are providing, had not been spelt out. It did not make the conduct any less grave or gross because it had not been spelt out. Spelling out should not have been required to a person in the applicant's position.

I take one submission out of order. It was made after the short adjournment and that is the error of law the EAT found. It was in the test applied by the tribunal to the issue for dismissal. Mr Owugah has referred to the case of Tilson v Alstom Transport [2010] EWCA Civ 1308. In that case the judgment by Elias LJ, with whom Arden LJ and Pitchford LJ agreed, refers to the decision of this court in Wilson v The Post Office [2000] IRLR 834. In Wilson the court held :

“I do not think it is possible to say confidently in this case that if the matter is remitted on the basis that this court has indicated, it is inevitable that an industrial jury will consider that Mr. Wilson was fairly dismissed.”

”

The leading case is that of Dobie v Burns International Security Services [1984] ICR 812 cited by Elias LJ in Tilson at page 37:

“If an employment judge reached his conclusion by applying the wrong legal principles, it is no answer to a challenge to his decision to say that there was evidence which would have entitled him to come to the same decision had he approached the matter correctly. It may be that he would have reached a different conclusion if the right test had been applied. Accordingly, in the usual case there needs to be a remission in those circumstances. It is only if the decision is "plainly and unarguably right" notwithstanding the misdirection (see Dobie v Burns International Security Services[1984] ICR 812, 818 per Sir John Donaldson) that the Tribunal's decision can stand. This is essentially the same principle as that which dictates that an appeal court can substitute a different decision only if the employment tribunal decision is plainly wrong.”

In the case of Tilson the EAT were held to have been right to include that, applying the correct test, the tribunal could not have reached a different result from the one that they did. Mr Owugah submits that in the present case it is not plain that the decision of the employment tribunal was plainly and unarguably right. There is a possibility -- Mr Owugah says it need not be put higher -- that if the case was remitted to them that they would reach a different conclusion on the question of wrongful dismissal. With respect I would regard that as a fanciful suggestion. I agree with the EAT's conclusion that, on their own reasoning and on their own findings of fact, the tribunal could not have reached a different conclusion had they applied the correct test rather than the test of reasonable options, which they did.

As to unfair dismissal, the central point of the submissions on behalf of the applicant, is that the issue of proportionality was not dealt with sufficiently. Mr Owugah has laid emphasis on section 3 of the Human Rights Act 1988 and Article 10 of the European Convention on Human Rights:

Article 10(2) provides limitations upon that right, beginning with the expression:

It is submitted that proportionality was not sufficiently dealt with by the tribunal. They say that they had regard to it but there is no detailed reasoning. Citing the judgment of Sedley LJ in AG (Eritrea) [2007] EWCA Civ 801  at paragraph 37, Mr Owugah has referred to the dangers of mere lip service being given to the issue of proportionality, quoting from Sedley LJ:

“What matters is not that courts and tribunals should adopt a set formula for determining proportionality, but that they should have proper and visible regard to relevant principles in making a structured decision about it case by case. It is not sufficient, as still happens, for the Tribunal simply to characterise something as proportionate or disproportionate: to do so may well be a failure of reasoning amounting to an error of law.”

Reference has been made to section 98(4) of the Employment Rights Act 1996 which provides that, in determining whether dismissal of an employee is fair or unfair, the determination depends on whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. By virtue of Section 3 of the 1998 Act it is submitted that section 98(4) must be construed and applied in a context in which due regard is given to the principle of proportionality. Three points are made on the applicant's behalf. The first is that the images were not extreme. I have referred to the submissions about that. Second, and this is quite undisputed, the applicant had a good record at the school, a good work record. Third, the applicant had said she would not do it again.

It is also submitted that insufficient regard was had to the attitude which formed a part of the panel's and the tribunal's decision. That had not sufficiently been ventilated before the tribunal and should not have been a ground for decision. Examination of the proceedings do not, in my judgment, support that submission, which I deal with specifically. Charge 3, which I have already read, clearly in my judgment raises the question of attitude. It plainly was something that was ventilated before the tribunal. I have referred to the deliberations before the tribunal and will not repeat them. The tribunal, and the panel, were plainly influenced by the attitude of the applicant as demonstrated in the evidence she gave and in the submissions made on her behalf at the disciplinary stage.

It is clear from the evidence of Mr Hill, the chairman of the disciplinary panel, that attitude was an important part of their decision. He stated that if she had recognised the error of judgment, she would probably have received a final written warning." He, Mr Hill, said that the applicant's approach was that she had a right to do it. He said that she only thought it inappropriate now because she had been told that. He said that he attached quite a lot of weight to this at the hearing.

Again, given the context and as is frequently said context is all important, the attitude of an employee, where trust and confidence is an important part of the work and the relationship between her and the employer, and between her and the children, is an important factor. I have no doubt that this was fully ventilated before the panel and that it is clear from the citations which I have already made.

That is one aspect of proportionality. It is submitted that some lesser sanction would have been appropriate. In my judgment, deciding upon the sanction it did, the panel and the tribunal were entitled to have regard to the attitude of the applicant as they found it to be. A further aspect is the nature of Article 10 and the breach alleged. This cannot be said to be the most profound interference with the right of freedom of expression. All that is sought to be subject to the sanction is the use by the applicant of a computer at her place of work and it is restricted only to the extent that she, in the employer's view, should not have placed pornographic material upon it and received it and transmitted it to a fellow employee. That is not the most serious interference with a person's freedom from expression. The concept has broader aspects, the breach of which is fundamental and has been fundamental in the common law, but I cannot take the same view, and the tribunal and the panel were entitled not to take the same view, of the limited limitation of freedom which the sanction involved. Mr Owugah indeed concedes the limited extent, in my judgment, when he says “naturally” (his word) that had the employers told the applicant not to do it then she could no longer have gone on doing it. Had it been in the contract of employment, he says then they could have restricted it and all that is complained about. I have dealt with this aspect, that there was no specific ban in the contract of employment.

Proportionality, and whether the sanction can be justified, must in my judgment be considered in the context of the nature of the restriction, if there was a breach of Article 10 at all as to which I make no express finding, and the limitations which employers are entitled to place upon it and which a tribunal and a court are entitled to uphold. In my judgment the tribunal did consider Article 10. They considered, and quite apart from Article 10 they were obliged to consider, this limitation upon the applicant's activities and whether her conduct in breach of the limitation should have been obvious to her and was such that the sanction of dismissal should have been applied.

Article 10(2) expressly refers to the need in a democratic society to protect "health or morals" and I have no difficulty in holding that the tribunal were entitled, as had been the panel, to find that in the context of this case this sanction was a proportionate one in the circumstances.

It is submitted that the tribunal's finding as to material being sexually explicit was not precise enough. In my judgment this is a case where one was entitled, having considered points of detail, to stand back and consider the nature of the conduct and the way in which the panel dealt with it. As I have said, there was a fair hearing before the panel, at which the applicant was represented as she was before the tribunal. The applicant has been represented in this court. Mr Owugah has addressed us and done so eloquently for about two-and-a-half hours. We have considered his submissions.

The respondents had regard, in reaching a conclusion on the investigation, to the claimant's contention that her right to freedom of expression meant that she had done nothing wrong in the absence of a specific rule prohibiting staff bringing pornography into school or viewing pornography at school. Having referred to the reaction and to the investigation, reference was made to the unblemished record of the applicant and to the approach of Mr Hill and that assurance, the tribunal recorded, was never forthcoming. Reference was made to the Human Rights Act.

The tribunal found that the Human Rights Act was engaged and the decision taken by the respondents 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. In those circumstances the judgment of the tribunal,

I agree and would simply add this. The appellant relied on Article 10 of the European Convention on Human Rights in support of her claim for unfair dismissal. It is accepted that under Section 98(4) of the Employment Rights Act it was for the respondent to show that it had carried out a reasonable inquiry and, on the basis of that enquiry, honestly believed that the appellant had committed the conduct alleged against her. Finally, it would be for the respondent to show that the dismissal was within the reasonable range of responses to that conduct. Mr Owugah accepted that the first two of those requirements had been satisfied, and in my view the respondent's decision to dismiss the applicant was within the range of reasonable responses, even taking into account, as they were required to do, the existence of her rights under Article 10 and the undoubted importance which is to be attached to them. For those reasons and for the reasons given by Pill LJ I too am of the view that an appeal in this case would have no real prospect of success and that permission to appeal should therefore be refused.

I agree that permission to appeal should be refused. I agree, with respect, with the reasoning of both judges and for my part would readily conclude that the sanction of dismissal was a proportionate response, even assuming (without deciding) the engagement of Article 10. For the reasons therefore given by Pill LJ and Moore-Bick LJ any appeal would be hopeless. I would add my own concern and regret that it has taken three hearings in order to vindicate the respondent's stance in what for my part I see as a plain and obvious case. The costs and time involved are significant. The risk proposed by such litigation is that it threatens administrative paralysis and, equally troubling, serves to deter public bodies from taking decisive action.