Hastingsbury School v. Clarke

Factual and Procedural Background

This is an appeal against two judgments from an Employment Tribunal concerning unfair dismissal and the remedy awarded. The Tribunal found unanimously that the Plaintiff had been unfairly dismissed and awarded compensation of approximately £26,500. The Defendant, the employer, appeals both findings.

The Plaintiff was employed as a school teacher at a secondary school in The City from September 2002. Initially on probation, his status was extended due to concerns about his professionalism and behaviour. Complaints arose in March 2005 from female students regarding inappropriate conduct, including suggestive behaviour and offensive language. Further complaints and concerns about the Plaintiff's bizarre behaviour were reported by staff in April 2005, including unusual physical conduct and inappropriate interactions with students.

The Plaintiff denied the allegations and was advised to seek medical help. He was suspended with pay in April 2005 pending investigation, which was delayed due to police involvement. A disciplinary hearing was held in October 2005, followed by a Governors' meeting in November 2005, resulting in summary dismissal for gross misconduct without the Plaintiff's presence or representation. An appeal in January 2006 upheld the dismissal.

The Employment Tribunal received psychiatric evidence indicating the Plaintiff suffered from a long-term psychotic illness, which may have affected his behaviour. The Tribunal found that the Defendant had failed to appropriately consider the Plaintiff's health by not referring him to Occupational Health before dismissal and that the dismissal process was procedurally unfair.

Legal Issues Presented

1. Whether the Defendant was entitled to proceed under misconduct procedures rather than ill health procedures in dealing with the Plaintiff's conduct.
2. Whether the failure to refer the Plaintiff to Occupational Health before dismissal rendered the dismissal unfair.
3. Whether the Tribunal erred in refusing to speculate on the likely outcome had a referral to Occupational Health been made.
4. Whether the Tribunal erred in its calculation of compensation, including the application of contributory fault and the timing of dismissal.

Arguments of the Parties

Defendant's Arguments

• The misconduct procedures were appropriate despite references to ill health in the disciplinary guidelines, as serious misconduct was genuinely believed to have occurred.
• The Defendant conducted a reasonable investigation and dismissal was within the range of reasonable responses given the gravity of allegations.
• The referral to Occupational Health was considered an additional step alongside misconduct procedures and became unnecessary after dismissal.
• The Tribunal should have assessed the likelihood of dismissal occurring regardless of a medical referral, especially given the psychiatric evidence.
• The Tribunal failed to consider contributory fault, which should have reduced compensation.
• The Tribunal's finding that dismissal would have been required by the Department for Education and Skills (DES) supports that dismissal was fair.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
British Home Stores v Burchell [1978] IRLR 379	Standards for a fair dismissal investigation and reasonable belief in misconduct.	The Defendant complied with the Burchell requirements regarding investigation and belief in misconduct.
Scope v Thornett [2007] IRLR 155	Tribunal's duty to speculate on what would have happened had fair procedures been followed (Polkey principle).	The court held that the Tribunal erred in refusing to speculate on the outcome of a medical referral and should have applied the Polkey approach.
Software 2000 Ltd v Andrews [2007] IRLR 568	Guidance on when a Tribunal may refuse to speculate on hypothetical outcomes.	The court cited this case to emphasize that refusal to speculate is only justified in exceptional cases with very sparse evidence, which was not the situation here.
Nelson v British Broadcasting Corporation (No.2) [1980] ICR 110	Principles relating to contributory fault in unfair dismissal cases.	The court found contributory fault was unlikely given the underlying mental illness and that culpable conduct is required to reduce compensation.

Court's Reasoning and Analysis

The court acknowledged that the Defendant was entitled to investigate serious allegations of sexual misconduct using misconduct procedures, especially since the Plaintiff denied illness and claimed medical clearance. The Tribunal erred in concluding that misconduct procedures should never have been invoked.

However, the Tribunal was justified in finding unfairness due to the Defendant's failure to suspend disciplinary proceedings pending a referral to Occupational Health. The Defendant ignored its own procedures and Human Resources advice, dismissing the Plaintiff without further investigation into possible medical causes.

The court emphasized the importance of considering health issues alongside disciplinary processes under section 98(4) of the Employment Rights Act 1996. The Defendant's approach was unreasonable, particularly given the Plaintiff was led to believe a medical referral would occur.

Regarding remedies, the Tribunal wrongly refused to assess the likelihood of dismissal following a medical referral. The court held that the Tribunal should have applied the Polkey principle to estimate when dismissal would have occurred. Psychiatric evidence showed the Plaintiff suffered from a psychotic illness with fluctuating symptoms, supporting the conclusion that dismissal would have been inevitable but delayed.

The court rejected the Defendant's argument based on section 98A(2) that dismissal would have been fair at the same time even if procedures were flawed, noting that the delay caused by medical referral was material.

On contributory fault, the court found it unlikely given the Plaintiff's mental illness and absence of culpable conduct.

Holding and Implications

The court UPHELD the finding of unfair dismissal but ALLOWED the appeal on the issue of compensation. It substituted the Tribunal’s compensation award with a reduced sum reflecting a delay of approximately ten weeks before dismissal would have occurred had the Defendant properly referred the Plaintiff to Occupational Health.

The compensation was reduced from around £26,500 to £4,360, representing the basic award plus ten weeks' net pay. The court found no justification for statutory rights compensation or credit for mitigation since the Plaintiff did not earn during that period.

This decision clarifies that while employers may proceed with misconduct procedures despite possible medical causes, they must not ignore health considerations and should suspend disciplinary action pending medical advice where appropriate. It also reinforces the application of the Polkey principle in remedy assessments, requiring tribunals to estimate the likelihood and timing of dismissal had fair procedures been followed.