[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Healey v. Birmingham City Council [2001] UKEAT 0831_01_1611 (16 November 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/0831_01_1611.html Cite as: [2001] UKEAT 0831_01_1611, [2001] UKEAT 831_1_1611

[New search] [Printable RTF version] [Help]

APPEARANCES

 

For the Appellant	MS L HEALEY (in person) 1B Tower Street Dudley DY1 1ND


 


MR JUSTICE MAURICE KAY

1. This is the preliminary hearing of an appeal against the decision of an Employment Tribunal sitting in Birmingham. The Appellant made a claim of unfair dismissal but the Tribunal held that she had been dismissed fairly.
2. The Appellant is a highly qualified woman who for many years worked as a permanent supply teacher employed by Birmingham City Council. We observe from the decision of the Employment Tribunal that they judged her to be a talented and dedicated woman and observed that her teaching and dealing with children had not been the subject of any criticism. They observed elsewhere that she was regarded as a primary school teacher of undoubted ability and had received a good report after an OFSTED inspection.
3. The dismissal resulted from a series of disciplinary hearings and decisions, some of which at least arose out of the way in which the Appellant was said to deal with colleagues and management. In short, it was said that she had an aggressive attitude. In 1997 and 1998, the Appellant raised with her employers various concerns about her career prospects and according to the Employment Tribunal decision, as a result, attempts were made to involve her in literacy and classroom practice initiatives. However, after a number of forthright messages addressed by the Appellant to the staff agency and an incident when she had shown reluctance to travel to one of her placements, she faced a disciplinary hearing on 21^st April 1999 concerning her termination of placements at certain schools and allegedly aggressive behaviour towards administrative staff in the Council's staff agency. There was a disciplinary hearing in which she was represented by a Union Officer. The outcome was that she was issued with a formal written warning against which she appealed.
4. There was at this time some concern about the Appellant's health and she was referred to an occupational health doctor but the opinion of that doctor was that the Appellant's behaviour did not have a medical cause. After the disciplinary hearing to which we have referred, she was referred for another medical report. However, the same doctor confirmed his earlier report and stated that he had curtailed an unsatisfactory interview with the Appellant.
5. There followed further complaints about the Appellant's manner in dealing with agency staff and staff at another school in which she had been placed. These complaints gave rise to a disciplinary hearing on the 24^th November 1999. Again she was represented by a Union Officer. The outcome was that she was issued with a final written warning indicating that any further breach of discipline would result in the termination of her contract.
6. She appealed and on 15^th December 1999, appeals in respect of both of those disciplinary hearings were considered at the same time. Again the Appellant was represented by the Union Official, at least in relation to one of the appeals. Detailed notes of the proceedings were made and were produced in evidence to the Employment Tribunal. Both appeals were dismissed.
7. Even before that appeal hearing, there had arisen another difficulty towards the end of November 1999, when the Appellant was on a short placement at a nursery school. The Employment Tribunal summary of that matter reads as follows

"She locked a fire-door in a classroom where she was teaching. Whilst this was a conscious decision, it was also potentially dangerous in that the door was the only means of exit from the room. She was spoken to by the Head Teacher and replied somewhat aggressively and this resulted in another formal complaint and led to the Applicant's suspension from work on full pay to enable investigations to take place into the event concerning the fire-door which was regarded as a serious breach of health and safety procedure"

That complaint was heard on 27^th January 2000. The Appellant was represented by her Union's Regional Officer. The hearing was concerned with the fire exit door incident and with the Appellant's allegedly aggressive and intimidating behaviour towards teachers and support staff. The hearing was held by the Deputy Chief Education Officer who found the allegations to be substantiated and taking into account the two previous warnings, he recommended the dismissal of the Appellant.

8. Under the disciplinary procedure, that recommendation next went to the Education Staffing Sub-Committee on 5^th April 2000. Prior to that, the Appellant was again referred to the occupational health doctor who produced a report referring to her long-standing history of back problems which had not responded to treatments. He also reported that her condition was exacerbated by excessive driving, by some seating positions and by any prolonged period of just sitting or standing. Reference was also made to a repetitive strain injury which affected her right arm. The doctor's conclusion this time was that the Appellant was chronically impaired from carrying out her teaching duties. Before the meeting of the Education Staffing Sub-Committee on 5^th April, the Appellant sought to retire on grounds of ill-health. This was not pursued in view of the pending appeal.
9. At that appeal on 5^th April 2000, the Appellant was represented by a Union Official. The observation of the Employment Tribunal was that it was not entirely clear whether the doctor's letter was put before the sub-committee. However, the decision of the sub-committee was to dismiss the Appellant with effect from the 31^st August 2000

"for her continued unacceptable behaviour over a number of years"

10. She appealed against that decision. That appeal was heard by the Education Appeal Sub-Committee on 12^th October 2000. The letter from the doctor was certainly before that sub-committee. On that occasion, the Appellant was presenting her own case. The Appeal Sub-Committee dismissed the appeal but in a confirmatory letter, it said it hoped that the pensions body would view her case sympathetically in the light of her continuing ill-health.
11. The Appellant then presented her complaints to the Employment Tribunal. The decision of the Employment Tribunal correctly sets out the law applicable in this area. Having referred to the appropriate provisions of Sections 94 and 98 of The Employment Rights Act 1996, and the leading authorities, the Tribunal stated

"It is not for the Tribunal to consider what it would have done if it had been the employer in this case. Our task is to examine carefully the procedures followed by the employing authority and the matters taken into account, to measure those against standards of reasonableness, to decide whether in the words of Section 98(4) of the Employment Rights Act 1996, the employer acted reasonably in treating the behaviour of the Applicant as a sufficient reason for her dismissal and to do so in accordance with equity and substantial merits of the case".

That is an impeccable statement of the law.

12. We next proceed to see how the Employment Tribunal applied the law to the facts. They concluded

"So far as the application before us was concerned the Tribunal was satisfied that the authority's disciplinary procedures were reasonable, that they had been followed fairly and that the Applicant had been accorded every opportunity to seek advice and be represented at the formal hearings".

In a later paragraph, the Employment Tribunal stated

"The Tribunal was also satisfied that the principal issue which led to her dismissal was not related to her protests over parking problems at one school. to the locking of a fire door at another or even to an unreasonably terminated placement. It was her continued aggressive and intimidating behaviour towards working colleagues, usually teachers and administrators. This had given rise to numerous complaints over at least four years, and had proved to be continually disruptive and troublesome and the education authority eventually felt obliged to address it in disciplinary terms"

The Employment Tribunal considered there to be every indication that the complaints made against the Appellant were properly investigated and they concluded that they had heard nothing to convince them either that they might have been made from improper motives, or that the conclusions reached by the education authority were unreasonable, "far less untenable".

13. On the face of it, those seem to us to be entirely permissible conclusions when the law was applied to the evidence before the Tribunal. Before us today the Appellant has presented her case by reference to a prepared statement which she amplified in the course of submissions. When, at the outset, we asked her to indicate the point of law at the forefront of her proposed appeal, she referred to "lack of duty to care and working conditions".
14. It is very important to understand the function and jurisdiction of this Tribunal. We are not here, nor was the Employment Tribunal in Birmingham there, to carry out an investigation into the working conditions of supply teachers in that city or elsewhere. The issue before the Tribunal and the issue before us was related to the fairness of the dismissal of the Appellant. The matters which visibly concern the Appellant most are really matters of working conditions and in some cases, relate to specific incidents that took place in schools. A prime example is the one about the fire door. She disputes that she locked the door, saying in fact that she bolted it. She says that that is an acceptable practice. She disputes that it was the only means of exit from the room.
15. It seems to us that the dispute about the fire door played a minimal part in the conclusions that were reached in this case. That is apparent from the passage of the decision of the Employment Tribunal that we set out before. The basis or reason for which the Appellant was dismissed was

"her continuous aggressive and intimidating behaviour towards working colleagues, usually teachers and administrators".

We are in no doubt that it was that history and the complaints which it had generated and not the specific incidents which lay at the heart of the decision to dismiss.

16. This Employment Appeal Tribunal is not in the business of, and does not have the facilities for, a re-hearing of the evidence of the case. We simply look at a decision with the assistance of submissions that are made to us, to see whether there is any arguable point of law which suggests that the Tribunal fell into legal error. It is abundantly clear to us that there is nothing in this decision that could begin to be characterised as an error of law.
17. Over and above the concerns which she has expressed and to which we have referred, the Appellant also made some criticism of the Chairman of the Tribunal for interrupting her and also made a comment about his conduct which is quite unsupported by affidavit evidence in accordance with the practice direction and we shall ignore it. All we can do is consider conscientiously whether the Appellant has established an arguable point of law.
18. We unanimously take the view that she certainly has not and in those circumstances, her appeal, having no prospect of success, will be dismissed. We observe that at the close of its decision, the Employment Tribunal paid the tributes to the Appellant to which we have referred and concluded by saying that they hoped she would be more content and feel better appreciated in her new career. We associate ourselves with those sentiments and were pleased to hear from the Appellant that she is indeed happier in her new career which we understand to be office-based rather than school-based.