Veitch Penny LLP - Exeter | Crediton, Devon

Case

London Borough of Brent v Fuller
Employment Appeal Tribunal - 21 April 2010

Issues

(1) Disciplinary proceedings
(2) Warnings
(3) Unfair dismissal

Facts

Mrs Fuller had been employed as an administrator at Vernon House School, a Community Special School for children with social and emotional difficulties. Her role was purely administrative in nature and she had no contact with the pupils. In May 2007 there was an incident involving a teacher's control of a difficult child. Mrs Fuller intervened. Afterwards, the Head Teacher told her she was not to intervene in disciplinary matters or in the application of restraint of a pupil and that she would speak to Mrs Fuller thereafter. No further discussion of the matter took place thereafter.

In October 2010 a similar incident took place and again Mrs Fuller intervened. The school decided her intervention constituted serious misconduct and instigated disciplinary proceedings against her. She was invited to a disciplinary hearing which she did not attend. In her absence Mrs Fuller was dismissed for gross misconduct. She was found guilty of "repeated and inappropriate intervention into behaviour management issues" and "failure to follow reasonable management instructions". In reaching the decision to dismiss Mrs Fuller, the school took into account that following the incident in May she was aware that she should not have interfered when the October incident took place.

She appealed the decision to dismiss her but again did not attend the hearing. The dismissal was upheld so Mrs Fuller initiated proceedings for unfair dismissal. She argued that the decision to dismiss did not fall within the band of reasonable responses.

At the original Employment Tribunal the dismissal was found to be unfair. The Tribunal found on the evidence that the incident in May which had been categorised as a verbal warning, had been "built up to more than it was". Whilst the school had an understandable concern about her intervention, Mrs Fuller's behalf did not in itself merit dismissal. The Tribunal concluded that the incident was a one-off and therefore did not merit dismissal.

The school appealed to the Employment Appeal Tribunal (EAT) on two grounds:

(i) that the Tribunal substituted its own view for that of the school which was incorrect, and
(ii) that the Employment Tribunal was wrong to regard the May incident as the giving of a warning and that the Tribunal had been incorrect to find that the Respondent had rolled up the two incidents in the proceedings.

Decision

In relation to the first matter, the EAT found that the Tribunal had substituted its own view about what it would have done in response to Mrs Fuller's behaviour. The school was entitled to take the view that her actions were inappropriate, given the particular nature of the school and its pupils.

In respect of the second matter, the EAT confirmed that Mrs Fuller did not receive a warning after the May incident. However, it held that whilst the May incident was relevant to the October incident, the Claimant was dismissed solely as a result of that incident. Following the case of Airbus v Webb, it confirmed that all matters relating to the background of a dismissal could be relevant and should be taken into account when considering whether or not to dismiss an employee. The EAT therefore allowed the appeal and dismissed the Claimant's claim of unfair dismissal.

Comments

This is a useful case for employers, but caution must be exercised given the particular school and scenario in question. It remains the case that employers should act when disciplinary issues arise, rather than allowing the situation to deteriorate to a stage where the employer wants to dismiss but has given no earlier warnings.