It is normally the correct approach when dealing with employment law matters not to take into account factors which have arisen “after the event”. For example, evidence of misconduct which only comes to light after someone has been dismissed for misconduct can have played no part in the deliberations of the individual or individuals who made the decision to dismiss. Similarly, if a business unexpectedly secures significant new business requiring recruitment shortly after a redundancy round that does not invalidate the redundancies.
However, in Cumbria County Council & Anor v Bates, the Employment Appeal Tribunal held that where a teacher was convicted of common assault (involving a 16 year old former pupil) and subsequently banned from teaching after he had already been dismissed, an employment tribunal would be entitled to consider the effect of the conviction when assessing compensation.
Mr Bates worked at Dowdales School from September 1999 until April 2009 when he was dismissed for misconduct. His claim for unfair dismissal was successful. The tribunal had taken place on 7 and 9 September 2010 and written reasons for the decision were sent to the parties on 13 December 2010. A remedy hearing was set for 21 February 2011. However Mr Bates was due in Preston Crown Court on 20 June 2011 to face three charges of sexually touching a 16 year old former pupil of the school on 16 July 2010 (after his dismissal). A request by the school and the local authority for postponement of the remedy hearing until after the criminal trial was refused. At the hearing he was awarded £70,925. His compensation was reduced by 15% to take into account his own contribution to his dismissal.
As it turned out he was found not guilty of the three charges of sexual assault but he was found guilty of common assault and sentenced to six weeks’ imprisonment.
There was a review hearing on 17 April 2012. On this occasion the tribunal revoked the first remedy judgment except for the basic award and part of the compensatory award, thereby reducing the overall award to £21,451. However there was a second remedy hearing on 17 September 2012 which reinstated the first remedy judgment.
On 1 October 2012 the Teaching Agency banned Mr Bates from teaching for life.
Cumbria County Council and the School Governors appealed to the Employment Appeal Tribunal, advancing no less that ten grounds of appeal. The key grounds were successful, namely that although events after dismissal could not affect any decision concerning what amount of compensation would be “just and equitable”, conviction, imprisonment and the lifetime ban from teaching would obviously affect employment prospects and future pension loss. These factors could and should be taken into account. There were also concerns about restrictions on the submission of evidence. The EAT took into account the “unfortunate history of this case” when deciding that the proper course of action was to remit the case to a newly constituted tribunal.
I am bound to observe that this case does not show the administration of justice in its best light and adds weight to the frequently made observation by employers that if the judiciary doesn’t know how to apply the law what chance have employers? The difficulty is that while everyone would welcome more simplicity and corresponding certainty, achieving fairness and objectivity is often a complex process which, as I have reported on so many occasions, can have unexpected outcomes.