On 2 February 2022, the Employment Appeals Tribunal (EAT) for England and Wales handed down its decision in the case of Lewis v The Governing Body of Tai’rgwaith Primary School  EAT 16. The case involved a teacher who was dismissed by the school following an incident in which a pupil was pulled to the floor.
Industrial Tribunals in Northern Ireland are not strictly obliged to follow judgments of the EAT for England and Wales. However, an Industrial Tribunal in this jurisdiction will generally take such judgments into account when making their own decisions.
The teacher in this case began working at the school in September 2001. Child B was a pupil in the teacher’s class. Child B had learning difficulties. On 15 March 2016, Child B rose from the ground where he had been sitting with other children whereupon the teacher took his arm and pulled him back to the ground.
The mother of Child B raised a complaint. A police investigation took place, but it did not result in criminal proceedings. Thereafter, a workplace investigation was carried out on behalf of the school by an outside organisation.
The final disciplinary hearing took place on 7 June 2017 and an appeal hearing took place on 22 September 2017. At both hearings, the teacher sought the attendance of two teaching assistants who had given evidence about the mishandling of Child B during the investigation process. The two individuals did not attend either the disciplinary hearing or the appeal hearing.
At both the disciplinary hearing and the appeal, the teacher was found to have manhandled Child B by pulling him to the ground and of failing to report that she has done so. She was dismissed.
Employment Tribunal decision
The teacher lodged a claim for unfair dismissal. The Employment Tribunal (ET) decided that the teacher had been unfairly dismissed because of a procedural failure in the dismissal process. Whilst the two teaching assistants had left their employment with the school by the time of the disciplinary hearing, the ET found that the school did not make reasonable attempts to try to ensure their attendances as witnesses. The ET decided that, by telling the witness that they did not have to attend, the school effectively discouraged them from doing so.
The ET accepted that it was not open to the school to force the attendance of the two teaching assistants, particularly as they had left the school’s employment by the time of the disciplinary hearing. However, it was not beyond the school to have done more to encourage their attendance.
The ET decided that the absence of the two teaching assistants from the workplace hearing was particularly important in this case for two reasons. Firstly, key facts were in dispute. Essentially the teacher contended that she had not used unnecessary force on Child B whereas the two teaching assistants told the investigation that she had. Secondly, this was a situation where a finding that the teacher had used unnecessary force on the child was likely to be career ending.
Whilst the ET made a finding of unfair dismissal, it then went on to consider the question of contributory fault. Following a finding of unfair dismissal, where a tribunal decides that the dismissal was to any extent caused or contributed to by the actions of the employee, it can reduce compensation by such proportion as it considers just and equitable. In appropriate cases, a 100% reduction can be made and so the employee receives no compensation.
The ET in this case made a 100% reduction for the teacher’s contributory fault. It said the following:
However, the tribunal also found that the claimant used unnecessary force in dealing with Child B. This led to the dismissal of the claimant. The use of unnecessary force is clearly blameworthy conduct, and in our judgment seriously blameworthy. It was that conduct for which the claimant was dismissed and we consider the claimant contributed to that dismissal to the extent of 100%. In respect of the basic award we consider that the claimant’s conduct prior to dismissal is of such a nature, it being in absolute conflict with her duties as a teacher, that it would be just and equitable to reduce any basic award to nil. In respect of any compensatory award we consider that given the level of culpability the claimant’s award should again be reduced to nil.
Employment Appeal Tribunal
The teacher lodged an appeal with the EAT about the ET’s decision not to award her any compensation. The EAT upheld the ET’s original decision. The EAT said that when considering whether a dismissal is unfair, the ET’s role is to examine the decision of the employer, including the procedures used. In doing so, the ET must consider the information that was before the employer at the time of the dismissal.
However, the EAT said that the situation was different when assessing the extent to which the employee contributed to her dismissal. When considering this aspect, it is the ET’s role to make its own findings of fact as to what happened, and, specifically not to look at the employer’s assessment of the conduct.
The EAT decided that the ET was entitled to make a reduction for contributory fault of 100%. The ET had heard a “compelling account” of the teacher’s actions from witnesses. It was entitled to find that the teachers conduct towards the child was blameworthy; and that it contributed or caused her dismissal. Whilst the failure of the school to do more to encourage the two witnesses to attend the disciplinary or appeal hearing was a procedural failure which rendered the dismissal unfair, the ET was entitled to decide that it was solely the conduct of the teacher which led to her dismissal.
When deciding whether a dismissal is unfair, a tribunal must consider whether the employer has acted reasonably. Each case must be considered based on its own facts. There may be cases, such as the present one, where a tribunal will decide that a dismissal was procedurally unfair because of the employer’s failure to take steps to try to ensure the attendance of relevant witnesses at a disciplinary hearing (even where those witnesses have left employment). The attendance of witnesses is likely to be even more important in cases where the decision to dismiss turns on a crucial issue of fact which is the subject of conflicting evidence. Another relevant factor, which can arise in the education sphere, is whether an adverse finding and a dismissal is effectively going to end the individual’s career.
That said, even where a tribunal makes a finding of unfair dismissal, it is not necessarily the case that an individual will receive financial compensation. This case is a good illustration of how a reduction for contributory fault can work in practice and the kind of conduct that could lead a tribunal to reduce an employee’s unfair dismissal compensation to zero. Even where a teacher establishes an unfair dismissal on procedural grounds, conduct towards a child of the type outlined in this case, is likely to lead to a 100% reduction in compensation.
This article was written by Paul Upson. It originally appeared in the Employment Hub of www.legal-island.com and is correct as at 05/04/2022.
Professional legal advice should be obtained before relying on information supplied anywhere within this article.