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Jafri v Secretary of State of Justice & Anor UKEAT/0436/12/DM
Date published: 03/05/2013
Appeal against a finding of fair dismissal. Appeal dismissed.
The claimant worked in a prison but was employed by the College, the respondent in this case. Allegations were made against him by a female colleague and the prison refused to allow him access to the prison whilst investigations were proceeding. The female colleague left before the investigation were concluded and the College decided that, since the claims could now no longer be substantiated, they had no alternative but to agree with the claimant that her allegations against him had been false. However, the College decided that the allegations were sufficiently serious that they could not just be ignored and they pursued an informal disciplinary process instead relating to the claimant's 'overbearing' manner towards other members of staff. The prison still refused to let him back, despite the College trying to persuade them otherwise, and redeployment to another prison was attempted but the new prison refused to take the claimant and he did not want to go. The claimant was then dismissed. His claim of automatic unfair dismissal because of having made protected disclosures, or in the alternative ordinary unfair dismissal failed at the ET, who found that he had been dismissed fairly for SOSR, and he appealed.
The EAT dismissed the appeal. They rejected the first ground of appeal which was that the ET had failed to consider whether the College had taken into account, when deciding to dismiss the claimant, the injustice which his dismissal would cause him and the effect of that injustice. The second ground of appeal, which was that ET erred in a number of respects when they found that the College had done everything they could to prevent injustice to the claimant, was also rejected.
Appeal No. UKEAT/0436/12/DM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
On 20 February 2013
THE HONOURABLE MR JUSTICE KEITH, DR B V FITZGERALD MBE LLD FRSA, MR B R GIBBS
(1) SECRETARY OF STATE FOR JUSTICE; (2) LINCOLN COLLEGE (RESPONDENTS)
Transcript of Proceedings
For the Appellant
MR J TINDAL (of Counsel)
The Smith Partnership
4th Floor, Celtic House
For the Respondent
MR S BROCHWICZ-LEWINSKI (of Counsel)
UNFAIR DISMISSAL – Reasonableness of dismissal
Unfair dismissal – attitude of third party making continued employment of employee impossible – whether tribunal considered whether employer took into account possible injustice to employee – whether errors of fact on part of tribunal undermined overall conclusion that employer had done what it could to prevent injustice to employee.
THE HONOURABLE MR JUSTICE KEITH
1. The Claimant, Jamal Jafri, worked as a teacher and learning specialist at Sudbury Prison, an open prison in Derbyshire. He began working there in 1988. Originally he was employed by the Derbyshire Education Authority, but his employment was transferred to Manchester College when it took over responsibility for providing educational services at the prison. On 1 August 2009, his employment was transferred to Lincoln College ('the College') when the College took over the responsibility for providing those services at the prison from Manchester College. His job title by then was Deputy Learning and Skills Manager at the prison.
2. Mr Jafri was dismissed from his employment by the College on 6 December 2010, receiving 12 weeks pay lieu of notice. In due course he presented a series of claims to the employment tribunal. One of them was a whistle-blowing claim. In that connection, he claimed that he had made a number of what are known as 'protected disclosures', and that he had suffered a 'detriment' as a result of making those disclosures, namely his dismissal. He claimed that his dismissal was automatically unfair for that reason under section 103A of the Employment Rights Act 1996. By the time his claims came to be heard in the employment tribunal, he was also saying that if the reason for his dismissal had not been because of the protected disclosures he had made, his dismissal had still been unfair under the ordinary law of unfair dismissal. The respondent to his claim of unfair dismissal was the College, his employers, and both the College and the National Offender Management Service ('NOMS') were the respondents to his claim of having suffered a detriment as a result of making the protected disclosures. The Secretary of State for Justice was treated as the appropriate respondent in respect of the claim against NOMS.
3. The hearing of the claims in the employment tribunal lasted for ten days. Mr Jafri represented himself. All his claims were dismissed. The tribunal found that some of the disclosures he claimed to have made were not protected disclosures, but importantly that none of the disclosures he had made had been the reason for his dismissal. His dismissal therefore had not been automatically unfair, and it found that his dismissal had not been unfair under the ordinary law of unfair dismissal either. Mr Jafri now appeals against the dismissal of his claims. He has withdrawn one of the grounds of appeal which related to one of the protected disclosures. The two remaining grounds of appeal relate to the reasoning of the tribunal for dismissing his claim of unfair dismissal under the ordinary law of unfair dismissal. It follows that the College is now the only respondent to the appeal.
The relevant facts
4. The facts which are relevant to the appeal are these. The Learning and Skills Manager at the prison was Diana Corbett. On 20 November 2009, she raised a grievance in a letter to the College's Human Resources Officer. In it, she complained of 'physical and verbal intimidation' on the part of two members of staff, and of unacceptable behaviour towards her on the part of a third. One of the two members of staff was Mr Jafri. Her letter said that she had become increasingly afraid to speak to or even meet the three of them, and that it had got to the point where she was so anxious that she was becoming distressed as she drove to work. She described how she even re-arranged her office so that she could be near the door when she had a meeting with Mr Jafri. It is to be noted that Ms Corbett made her complaint about the three men to the College, not to the prison. Ms Corbett was not the only female member of staff to have complained about Mr Jafri. Liz Hilton, the Head of Learning Services at the prison who was employed by the prison, complained about Mr Jafri to the Governor of the prison, Kenneth Kan. That was on 25 November 2009. She knew about the grievance which Ms Corbett had raised about Mr Jafri five days earlier, but the tribunal was to find that Ms Corbett had not asked Ms Hilton to make a complaint herself.
5. Under the Prison Rules, Mr Kan could exclude anyone from the prison. His evidence to the tribunal was that he had seen Ms Corbett's letter, and on 26 November 2009 he decided to exclude all three men from the prison 'due to the serious allegations being made concerning their behaviour, which includes harassment and bullying'. Their exclusion would continue, he said, until the College's investigations into the allegations had been concluded and the outcome of those investigations had been discussed with him.
6. The College's investigations into the allegations were carried out by Simon Plummer, the Director of the Offenders Learning and Skills Service. He thought that there was some evidence which supported Ms Corbett's allegations against Mr Jafri, and that Mr Jafri's behaviour fell well below what he thought was acceptable. His report was considered by one of the Vice-Principals of the College, Paul Deane, who thought that disciplinary proceedings were called for in respect of Mr Jafri's behaviour towards Ms Corbett. The disciplinary hearing was due to take place on 29 March 2010, but it was put off at Mr Jafri's request, and in the meantime Mr Jafri raised two grievances himself. The first was on 18 May 2010. That grievance was that Ms Corbett's allegations against him had been false, that Mr Plummer's investigation into her allegations had been flawed, and that the College had prevented him from defending himself properly against Ms Corbett's allegations by failing to secure access for him to documents within the prison. He raised a second grievance six days later on 24 May 2010. That grievance related to the recruitment by Ms Corbett of two other members of staff, William Holland and Lisa Higginbottom, the revision of the curriculum and the timetable to benefit Mr Holland, the creation of classes to benefit another member of staff, Neil Colpitts, and what was described as the 'manipulation of data' which the College was required to compile.
7. There was then an important development. On 31 May 2010, Ms Corbett left the College's employment pursuant to what the tribunal described as a 'compromise agreement'. All we know about that is what is contained in her witness statement. The stress which she had been under which had caused her to raise her grievance in the first place had resulted in her taking sick leave from 21 January 2010. She never returned to work again. But the consequence of her leaving the College was that the Vice-Principal of the College who considered Mr Jafri's first grievance, Gordon Gillespie, thought that he had no alternative but to uphold Mr Jafri's grievance that Ms Corbett's allegations against him had been false, presumably because she was no longer available to assert that they had been true. He therefore upheld that grievance but rejected the other grievances. We are highly sceptical about whether Mr Gillespie's approach was correct. This aspect of Mr Jafri's grievance raised the very question which the disciplinary proceedings against him were to address. The much better course for him to have taken, we think, would have been either to say that the grievance should be addressed only when the disciplinary proceedings had been completed, or to decline to consider that aspect of Mr Jafri's grievance since it was no longer capable of being adjudicated upon because of Ms Corbett's unavailability to substantiate her allegations.
8. Be that as it may, following Ms Corbett's departure, Mr Jafri applied for her post. Mr Kan was asked whether Mr Jafri would be allowed into the prison to perform the duties of the post if his application was successful. Mr Kan responded on 22 July 2010 that Mr Jafri would not be allowed into the prison 'under any circumstances'. Mr Kan was asked whether he was prepared to discuss the matter further, and on 28 July 2010 he confirmed through Ms Hilton that Mr Jafri would not be allowed back into the prison. Mr Kan was not told at the time that Mr Jafri's grievance that Ms Corbett's allegations against him had been false had been upheld.
9. It is necessary to return to the disciplinary proceedings brought against Mr Jafri. With Ms Corbett's departure from the College, and the upholding of Mr Jafri's grievance that Ms Corbett's allegations against him had been false, the College had to decide what to do about the disciplinary proceedings. It decided that the concerns which the College had about Mr Jafri as a result of Ms Corbett's allegations should be dealt with via what the College described as 'the informal disciplinary mechanism'. Presumably its thinking was that Ms Corbett's allegations could not be substantiated because she was no longer available to speak to them, but they were sufficiently serious that they could not just be ignored. Mr Jafri was notified of that on 16 September 2010 when his suspension from work was lifted with immediate effect.
10. Mr Jafri's response to this development was to raise a new grievance, this time against NOMS. His grievance was dated 19 September 2010. The details of his grievance are not relevant for present purposes, save that in the course of his grievance he said that Ms Corbett's allegations against him had subsequently been found by the College to have been false and unfounded. The grievance was forwarded to Sudbury Prison by NOMS in an attachment to an e-mail in which someone at NOMS said that Mr Kan needed 'to be careful that he [has] not got his facts wrong as Mr [Jafri] seems to feel that he has been cleared of all allegations by the Lincoln College investigations'. The response from Mr Kan of 1 October 2010 through Ms Hilton was that he was not required to clarify or justify his stance relating to Mr Jafri since Mr Jafri was employed by the College and not by NOMS, but what is important is that he knew from Mr Jafri's grievance that Mr Jafri was saying that Ms Corbett's allegations against him had been found by the College to have been false and unfounded.
11. Mr Kan's response left the College in a difficult position. Mr Jafri's suspension had been lifted, but if he could not return to Sudbury Prison because of his exclusion from the prison by Mr Kan, the College had to redeploy him. Accordingly, on 5 October 2010, Mr Plummer sent an e-mail to Ms Hilton in the following terms:
'We are currently exploring redeployment opportunities for Jamal. As part of this we need to make potential prisons aware of his exclusion from HMP Sudbury including the reason surrounding it. Jamal's exclusion derived from his alleged behaviour towards Diana Corbett. Diana's testimony was crucial to our investigation but as you are aware she has now left Lincoln College leading to our decision not to further explore her allegations formally. I am comfortable that Lincoln College has endeavoured to seek a withdrawal of Jamal's exclusion on a number of occasions but in order to support his redeployment to another site an over arching statement of the concerns held by HMP Sudbury over his return would assist us to close this case.'
The response from Mr Kan through Ms Hilton on 7 October was as follows:
'As the formal investigation into the allegations has not been concluded by Lincoln college due to the resignation of the senior colleague, the governor remains concerned as to the suitability of Mr Jafri to work within a vulnerable adult environment.'
Mr Plummer responded to that e-mail on the same day. He said:
'Apologies if I confused you by referring to our decision not to further explore the allegations formally. I can confirm that the formal investigation has in fact been concluded but a decision was taken not to address the allegations of bullying and intimidation via the formal disciplinary mechanism i.e. the case will not progress to a formal hearing and therefore no formal disciplinary sanction considered. Due to the fact that Diana had left the employment of the college and therefore both Jamal's and Diana's statements could not be fully substantiated by the disciplinary process, it was decided to address the concerns regarding Jamal's behaviour via the informal disciplinary mechanism. During the investigative process, colleagues have given examples of where Jamal had lost his temper resulting in either him shouting or gesturing and witnessed Jamal making inappropriate comments to Diana. However, there was no evidence of physical intimidation or contact. It is as a result of these witness statements that has led me to take the decision to address Jamal's behaviour via the informal disciplinary mechanism.'
Mr Kan's response to that e-mail through Ms Hilton of 12 October 2010 was that he had no further comments to make, having on the same day said in an e-mail to another member of the Prison Service that he needed to hear from Ms Corbett himself, presumably meaning that he could not proceed on the basis that her allegations had no substance until he had spoken to her himself. The fact was that he knew from Mr Plummer's e-mails of 5 and 7 October 2010 that it was not so much that Ms Corbett's allegations had been found to be false and unfounded, even though that had been the outcome of Mr Jafri's grievance to the College, but that her allegations had not been substantiated only because she had left the College.
12. Mr Kan gave evidence in the tribunal. He said that his position had at all times been that he would not permit Mr Jafri to return to the prison until the investigation into his conduct had been completed. However, he added that had Mr Jafri been on the staff of NOMS and had been suspended pending the outcome of an investigation into serious allegations against him of the kind made by Ms Corbett, he would not have lifted the suspension until he had good reason to believe that the allegations had no weight and that the individual concerned posed no risk. That led the tribunal to find that what Mr Kan had meant when he had said in his e-mail of 22 July 2010 that Mr Jafri would not be allowed back into the prison 'under any circumstances' was that he would not have allowed Mr Jafri back under any circumstances while the investigation into his behaviour was 'pending'. In that sense, the tribunal said that Mr Jafri's exclusion was not permanent at the time.
13. We should at this stage refer to two e-mails to which the tribunal did not refer in its reasons. On the instructions of Mr Kan, Ms Hilton asked Mr Plummer on 28 October 2010 for details of Ms Corbett's allegations against Mr Jafri. It was known that they related to bullying and harassment, but what Mr Kan wanted to know was what the details were. The College replied the following day declining to give the information since the allegations had not proceeded to a formal disciplinary hearing. However, those two e-mails have to be seen in their proper context. That context was that NOMS needed to know the details of the allegations which Ms Corbett had made against Mr Jafri in order to respond to the grievance he had raised against NOMS. NOMS asked Mr Kan for that information, which was why Mr Kan through Ms Hilton asked Mr Plummer for the details of them. Moreover, the reason why the College refused to provide them was that for data protection reasons it needed Mr Jafri's consent before the information could be given to NOMS. We have been told today that the evidence before the tribunal was that Mr Jafri had been asked to give his consent, but that he had declined to give it.
14. We can take the rest of the history relatively shortly. The 'informal disciplinary mechanism' resulted in Mr Jafri being given an 'informal oral warning' at a meeting with him. When you compare the contents of the letter of 22 October 2010 in which Mr Jafri was informed of that with a note which had been prepared before the meeting of what was to be discussed it, it is plain that the warning was given for Mr Jafri's overbearing behaviour towards other members of staff, not Ms Corbett. But since Mr Kan refused to permit Mr Jafri to return to the prison, the College had no alternative but to try to deploy him elsewhere. That proved not to be possible. The result was that on 6 December 2010 Mr Deane met Mr Jafri, and told him that he was to be dismissed. He followed that up with a letter informing Mr Jafri that the refusal of Mr Kan to permit Mr Jafri's return to the prison was 'beyond [the College's] control', and that the College had 'made every effort to secure alternative employment for [him] but to no avail'. For example, the tribunal was to find that Foston Hall Prison was not prepared to take Mr Jafri even if he had been prepared to go there, which he was not. Mr Deane added that the College had gone to 'extraordinary lengths to make [Mr Jafri] aware of the potentiality of compromise, an option [Mr Jafri had] decided not to take'. It therefore had no alternative but to dismiss him for what it described as 'some other substantial reason'.
The findings of the tribunal
15. The tribunal found that it was the allegations which Ms Corbett had made against Mr Jafri which had resulted in his exclusion from Sudbury Prison. It found that the College had 'made every effort to persuade [Mr Kan] to lift [Mr Jafri's] exclusion from the prison', but the fact that the disciplinary proceedings relating to Ms Corbett's allegations had been inconclusive had not made Mr Kan change his mind. The tribunal found that the College had sought to find alternative employment for Mr Jafri, but that he was not interested in being considered for such vacancies as there may have been, and that he was only interested in being exonerated of the allegations made by Ms Corbett and being able to return to Sudbury Prison. Having said that, it does not look as if there were any vacancies for him because the tribunal found that the one other local prison, Foston Hall, was not prepared to take him. The tribunal concluded that those were the reasons for Mr Jafri's dismissal, and they amounted collectively to some other substantial reason, in other words a reason other than a reason falling within section 98(2) of the 1996 Act of a kind such as to justify the dismissal of an employee holding the position which Mr Jafri held.
16. In concluding that Mr Jafri's dismissal for those reasons was fair, the tribunal said in para. 5.2.6 of its reasons:
'Of course the result of this is that to a certain extent there is some injustice to Mr Jafri and that is acknowledged by the Tribunal and I think it is acknowledged by everyone that there is a certain element of injustice to Mr Jafri in this respect. In our view that injustice has to be balanced against the practicalities of what his employers could do. In our view his employers did everything they could to prevent any injustice to him and indeed in this case their dismissal of him fell well within the band of reasonable responses.'
The two grounds of appeal advanced on Mr Jafri's behalf are based on that passage.
The relevant case law
17. There is a fair amount of case law on the role which the injustice which an employee will suffer as a result of his dismissal plays in assessing whether his dismissal was fair or unfair in cases where the employee was dismissed at the request of a third party or where the attitude of the third party made the continuing employment of the employee impossible. In Dobie v Burns International Security Services (UK) Ltd  ICR 812, Sir John Donaldson MR said in the Court of Appeal at p.817B-C:
'In deciding whether the employer acted reasonably or unreasonably, a very important factor of which he has to take account, on the facts known to him at that time, is whether there will or will not be injustice to the employee and the extent of that injustice. For example, he will clearly have to take account of the length of time during which the employee has been employed by him, the satisfactoriness or otherwise of the employee's service, the difficulties which may face the employee in obtaining other employment, and matters of that sort. None of these is decisive, but they are all matters of which he has to take account and they are all matters which affect the justice or injustice to the employee of being dismissed.'
That theme, which emphasised the importance of the employer considering whether dismissing the employee would cause an injustice to the employee, was taken up by the Employment Appeal Tribunal in Greenwood v Whyteghyll Plastics Ltd (UKEAT/0219/07/MAA) (Silber J presiding). At para. 23 of its judgement, the Employment Appeal Tribunal said:
'…there was nothing in the documents or anywhere else to which we were referred to show that the injustice to the appellant was considered by the respondent in deciding to dismiss the appellant or to dismiss his appeal from that decision or was even the subject of any evidence to the Employment Tribunal. Thus we reached the conclusion … that the Employment Tribunal did not consider as the Court of Appeal [in Dobie] said that they should have done … the 'very important factor' of whether the respondent considered the injustice to the claimant and the extent of the injustice in deciding whether the respondent … acted reasonably.'
Greenwood itself did not take the law any further. It was simply an illustration of how Dobie has been applied.
18. However, a word of caution was voiced by the Employment Appeal Tribunal in Henderson v Connect (South Tyneside) Ltd  IRLR 466 (Underhill P presiding). At para. 16 of its judgment, the Employment Appeal Tribunal said:
'Cases of this kind are not very comfortable for an employment tribunal. Nevertheless, it has long been recognised that the fact that the client who procures, directly or indirectly, the dismissal of an employee may have acted unfairly, and that the employee has thus suffered an injustice, does not mean that the dismissal is unfair within the meaning of the statute. That is because the focus of section 98 of the Employment Rights Act 1996, and its statutory predecessors, is squarely on the question whether it was reasonable for the employer to dismiss … It must follow from the language of section 98(4) that if the employer has done everything that he reasonably can to avoid or mitigate the injustice brought about by the stance of the client – most obviously by trying to get the client to change his mind and if that is impossible, by trying to find alternative work for the employee – but has failed, any eventual dismissal will be fair: the outcome may remain unjust, but that is not the result of any unreasonableness on the part of the employer. That may seem a harsh conclusion; but it would of course be equally harsh for the employer to have to bear the consequences of the client's behaviour; and Parliament has not chosen to create any kind of mechanism for imposing vicarious liability or third party responsibility for unfair dismissal.'
The Employment Appeal Tribunal in Henderson did not think that its approach was inconsistent with the approach taken in Dobie. At para. 21 of its judgment, the Employment Appeal Tribunal said:
'… the effect of Dobie is that in a case where the client's stance appears liable to cause injustice, the tribunal must consider with special care whether the employer has indeed done all that he could to avoid or mitigate that injustice: in a case of patent injustice it may be necessary for an employer to pull out all the stops. But Dobie cannot be read as holding that, even where the employer has done all he could to avoid or mitigate the injustice but without success, an eventual decision to dismiss would be unfair.'
19. Finally, at para. 22 the Employment Appeal Tribunal went on to consider what the position would be if the employment tribunal failed to refer to the injustice which the employee would suffer as a result of his dismissal. It said that neither Dobie nor Greenwood
'… supports the proposition that there is automatically an error of law where a tribunal fails to make express reference to the injustice factor. That will be to promote form over substance. While it is certainly good practice for a tribunal to direct itself by reference to Dobie, a failure to do so need not be fatal. In some cases it will be sufficiently apparent that the tribunal has indeed taken the injustice to the employee fully into account: indeed in many cases it will be at the heart of the case and could not realistically be overlooked.'
Of course, that observation is not directly relevant to Mr Jafri's case because the employment tribunal referred in terms in para. 5.2.6 of its reasons to the 'injustice factor'.
20. We shall come in a moment to the criticisms which are made of the employment tribunal in the light of those authorities, but we should first state that we understand entirely where the tribunal was coming from when it spoke of 'a certain element of injustice to Mr Jafri'. He had worked at Sudbury Prison for a very long time. The allegations which Ms Corbett had made against him had never been proved. And most important of all, what ultimately led to his dismissal was Mr Kan's concerns about Mr Jafri's suitability to work 'within a vulnerable adult environment'. The stigma associated with that concern could well have had an important impact on Mr Jafri's future employability, to say nothing of his reputation. It was considerations of that kind which caused Elias LJ in Turner v East Midlands Trains  IRLR 107 (which was not a case in which the employee had been dismissed because of the attitude of a third party towards him but because of the employee's conduct) to say at para. 20:
'… when determining whether an employer has acted as the hypothetical reasonable employer would do, it will be relevant to have regard to the nature and consequences of the allegations. These are part of all the circumstances of the case. So if the impact of a dismissal for misconduct will damage the employee's opportunity to take up further employment in the same field, or if the dismissal involves an allegation of immoral or criminal conduct which will harm the reputation of the employee, then a reasonable employer should have regard to the gravity of those consequences when determining the nature and scope of the appropriate investigation.'
However, it should be noted though that those remarks were made in the context of an argument that the employers' investigation into the employee's conduct had not been sufficiently rigorous, bearing in mind the impact which her dismissal would have had on her future employability and reputation.
The first ground of appeal
21. The criticism of the tribunal in the first ground of appeal is that it failed to consider whether the College had taken into account, when deciding to dismiss Mr Jafri, the injustice which his dismissal would cause him and the effect of that injustice. The reason for how it come to fall into that error, if error it was, may have been because the tribunal did not properly grasp what had been said in Dobie. It purported to quote the following passage from Dobie:
'When considering the reasonableness the tribunal must consider the conduct of the employer and whether the dismissal was an injustice to the employee. The injustice is less sustainable if the contract provides that the third party could insist on dismissal.'
We do not know where the tribunal got that from because it certainly is not any of the judgments given in Dobie, and what the tribunal did not quote was the passage from Dobie which we quoted earlier in this judgment and which emphasises the need for an employment tribunal to consider whether the employer had taken into account the extent of the injustice which would be caused to the employee by his dismissal.
22. Having said that, we do not think that the criticism of the tribunal which forms the first ground of appeal is sustainable. It looks to us as if the tribunal did consider whether the College had taken into account the extent of the injustice which would be caused to Mr Jafri by his dismissal. The tribunal said that 'it is acknowledged by everyone that there is a certain element of injustice in this respect'. That included the College, not just the tribunal, because in the previous line the tribunal had referred to its own acknowledgement of the injustice Mr Jafri had suffered. We appreciate that the tribunal used the present tense, and that it may have been referring to what the College had begun to appreciate by the time of the hearing. But when you put that sentence into the context of the whole of that part of the tribunal's reasons, in particular the tribunal's statement that Mr Jafri's 'employers did everything they could to prevent the injustice to him', we think that the tribunal must have been saying that the injustice of Mr Jafri being dismissed in effect because of the position adopted by Mr Kan had been acknowledged at the time by the College rather than was being acknowledged by the College at the time of the hearing in the tribunal.
23. In case that was the view which we reached, another point was taken, and that was that there was no basis on which it had been open to the tribunal to find that the College had taken into account the extent of the injustice which Mr Jafri would suffer as a result of his dismissal. We have been reminded that when Mr Jafri was told by Mr Deane that he was to be dismissed, the words which Mr Deane used, which we take from the minutes of the meeting, were:
'It is with regret, and that's real regret that I think I have no option other than to dismiss you today for some other substantial reason and that's because you are still excluded from the place at which you work. The college does not agree with that exclusion I would like to make clear, from HMP Sudbury but has made every reasonable effort to encourage the Governor to overturn that decision so that we could offer you employment again back in Sudbury and I also believe we have made reasonable efforts to find alternatives up to this point.'
Not only was there no reference there to the injustice which Mr Jafri would suffer as a result of his dismissal, but the follow-up letter said nothing about that either. In our view, that is a very refined criticism of the tribunal. Sometimes things are so obvious that they do not need to be spelled out. The tribunal knew that Mr Deane really regretted what he was doing, and the reason for that was obvious. Mr Jafri was being dismissed in effect because of allegations against him which had not been substantiated. Mr Deane could therefore be assumed to have realised that there was a real element of injustice in what was happening to Mr Jafri, and that would have been a sufficient basis for the tribunal's finding that that injustice had been taken into account by Mr Deane.
24. But even if that is wrong, the tribunal in effect asked what else the College could have done, bearing in mind its findings that the College had done what it could to persuade Mr Kan to permit Mr Jafri to return to the prison, and to find alternative work for Mr Jafri. In the light of those findings, Mr Jafri's case is indistinguishable from Henderson. He may have been the victim of an injustice, but from a practical point of view the tribunal did not really have any alternative but to conclude that there had not been anything which the College could have done about it.
The second ground of appeal
25. The second ground of appeal is that the tribunal erred in a number of respects on its way to its finding in para. 5.2.6 of its reasons that the College 'did everything they could to prevent any injustice' to Mr Jafri. It is necessary to consider each of those respects in turn.
26. (i) The efforts made to get Mr Kan to change his mind. The first is that the tribunal failed to consider whether the College could reasonably be expected to have done more to persuade Mr Kan to lift Mr Jafri's exclusion from the prison. The only finding which the tribunal made on that issue was in para. 5.2.4 of its reasons when it said:
'They then did try discussing with Mr Kan the exclusion but Mr Kan had taken the firm view that even though the allegations were not going to be proved or pursued other than in the form of an informal oral warning, that would not be sufficient to change his position. He would have had to be satisfied that it was appropriate for Mr Jafri to be able to resume his work at the Prison.'
There is an obvious error in that passage. The allegations which were to be pursued in the 'informal disciplinary mechanism' did not relate to Ms Corbett. They related to what was alleged to have been Mr Jafri's overbearing manner towards other members of staff. But the real criticism of the tribunal is that this was a case of patent injustice to Mr Jafri, and the tribunal failed to consider whether the College really had pulled out all the stops to persuade Mr Kan to let Mr Jafri return to the prison, bearing in mind the injustice which would have been done to Mr Jafri if he lost his job because Mr Kan would not relent. The argument, skilfully and powerfully deployed by Mr Jim Tindal for Mr Jafri, is that had the tribunal considered that issue, it could well have concluded that the College could have done much more, bearing in mind that it did not tell Mr Kan that Ms Corbett's allegations had been found to be false and unfounded, nor did it enlighten Mr Kan about what the allegations had amounted to when he had said that he wanted to know what the allegations had really been about, especially when the tribunal had already found that Mr Kan's exclusion of Mr Jafri had not been permanent. So what is contended is that what the tribunal should have found was that when Mr Kan knew that the disciplinary proceedings were not going either to substantiate or to reject Ms Corbett's allegations against Mr Jafri one way or the other, the College should then have asked Mr Kan one final time whether that meant that Mr Jafri would have to remain excluded from the prison.
27. There is, in our judgment, nothing in the point that Mr Kan was not told in so many words that Ms Corbett's allegations had been found to be false and unfounded. That had been the outcome of Mr Jafri's grievance, but if Mr Kan was to be told that, he also had to be told that the only reason why that had been the outcome of the grievance was because Ms Corbett had left the College's employment and her allegations could not be substantiated for that reason. Indeed, that was the very thing that he was told in Mr Plummer's e-mails of 5 and 7 October 2010. Nor would a more positive response from the College to Mr Kan's enquiry about what the allegations really consisted of have affected the position. Apart from the fact that it was Mr Jafri who prevented Mr Kan knowing more about the allegations, the issue for Mr Kan was whether the allegations were true. He already knew that if they were true they had justified the invocation of formal disciplinary proceedings against Mr Jafri, so he knew they were serious. It is true, of course, that the tribunal had found that Mr Kan's exclusion of Mr Jafri had not been permanent. But since the only way in which Mr Kan could have been satisfied that it was appropriate for Mr Jafri to resume his work at the prison was if Ms Corbett's allegations against him were found to be false and unsubstantiated, and since it was not possible for her allegations to be upheld or rejected because she had the left the College's employment, there was no route available to persuade Mr Kan that Mr Jafri should be permitted to resume working at the prison. In these circumstances, we do not think that the criticism of the tribunal's conclusion in para. 5.2.6 of its reasons is sustainable.
28. (ii) The tribunal's findings about Ms Corbett's allegations. However, that cannot be said for the next point taken on behalf of Mr Jafri. In para. 5.2.1 of its reasons, the tribunal said:
'The complaint of Diana Corbett was genuinely made. Having heard her evidence and that of Rachel Newman we are satisfied that there had been difficulties about [Mr Jafri's] attitude, particularly to women in authority. That Diana Corbett had indeed spoken to him about at length about this without success although, as she described, there had been some small improvement for a short period of time before things worsened against. She did raise her complaint against 3 male colleagues with her employer and it was not at her behest that Mr Jafri was excluded.'
Rachel Newman was the area manager of the Offenders Learning and Skills Service, and had been called as a witness by Mr Jafri. The criticism of the tribunal is that this was an area of fact-finding into which it should not have strayed. The College had not reached any concluded view itself about Ms Corbett's allegations, and it was therefore wholly inappropriate for the tribunal to have done so. What made it doubly wrong, argued Mr Tindal, was that Mr Jafri's grievance that Ms Corbett's allegations against him were false and unfounded had been upheld, and the tribunal's finding was therefore the very opposite to the conclusion which the College had reached. There is nothing in that latter point. As we have said, Mr Jafri's grievance was upheld because Mr Gillespie thought that he had no option but to uphold it in view of Ms Corbett's unavailability. That does not mean that the College actually thought that her allegations were unfounded.
29. Having said that, we agree with Mr Tindal that it was wholly inappropriate for the tribunal to make findings about whether Ms Corbett's allegations had been substantiated. It may be that it went down the path it did because Ms Corbett had been called by the College to give evidence in respect of the whistle-blowing claim, whereas in truth her evidence was not relevant to what the tribunal had to decide on the claim for unfair dismissal in the light of what the College was asserting were the reasons for Mr Jafri's dismissal, namely whether or not her allegations against Mr Jafri were true or unfounded, Mr Kan had decided that Mr Jafri should be excluded from the prison, and there was nowhere else where Mr Jafri was willing to be deployed to.
30. The critical question therefore is whether the tribunal's error in making findings on this topic infected its ultimate conclusion that Mr Jafri had not been unfairly dismissed. In other words, would the tribunal's assessment of whether the College had taken into account the extent to which Mr Jafri's dismissal had been an injustice have been any different if it had not considered for itself whether Ms Corbett's allegations were true? We do not think that it would. Once the tribunal had found that the College had tried to persuade Mr Kan to permit Mr Jafri to return to the prison, but that his stance had remained the same, and that it had done what it could to redeploy Mr Jafri elsewhere, it is difficult to see what other conclusion the tribunal could have thought might have been open to the College.
31. (iii) The tribunal's findings relating to the second grievance. It will be recalled that Mr Jafri raised a second grievance on 24 May 2010. That grievance was considered by Mr Plummer. On 9 November 2011, he wrote to Mr Jafri informing him that there were 'elements' of the grievance which he felt he could uphold. The elements of the grievance which he upheld related to the recruitment of Mr Holland and Miss Higginbottom by Ms Corbett, and the revision of the timetable to suit Mr Holland. The other elements of the grievance were not upheld. Unfortunately, the tribunal got the wrong end of the stick. In para. 3.38 of its reasons, it said that Mr Plummer had been unable to uphold any of Mr Jafri's grievances.
32. That was an obvious error, but subject to one point it had no bearing at all on the outcome of the case. The tribunal need not have referred to the second grievance at all because it had nothing to do with the overarching issues which the tribunal had to address. It was simply part of the narrative of Mr Jafri's employment, which the tribunal may have thought that it ought to refer to in its reasons in order to justify how this relatively straightforward case could have lasted ten days. Our one reservation is whether the tribunal's assessment of whether the College had taken into account the extent to which Mr Jafri's dismissal was an injustice would have been any different if it had appreciated that parts of Mr Jafri's second grievance had been upheld. We do not think that it would have made any difference at all. The second grievance was not about how unfavourably he had been treated. It was about how favourably others had been treated, admittedly by Ms Corbett. It had nothing to do with the allegations which Ms Corbett had made against him, or with Mr Kan's exclusion of him from the prison, nor importantly could it sensibly have been deployed by the College to get Mr Kan to change his mind. Nor could it have affected the chances of Mr Jafri being redeployed elsewhere.
33. (iv) The tribunal's understanding of Mr Plummer's e-mail of 5 October 2010. In para. 3.35 of its reasons, the tribunal said:
'On 5 October Mr Plummer from the College informed Liz Hilton that the investigation [into Ms Corbett's allegations against Mr Jafri] was not going to be continued and asked how that would affect [Mr Jafri's] exclusion.'
That was a reference to Mr Plummer's e-mail to Ms Hilton of 5 October 2010 to which we have already referred. The tribunal's summary of it was plainly incorrect. Mr Plummer was not asking whether Mr Jafri's exclusion could be lifted now that Ms Corbett's allegations against Mr Jafri would no longer be investigated. Mr Plummer recognised that attempts had already been made by the College to persuade Mr Kan to permit Mr Jafri's return to the prison. What Mr Plummer needed from the prison was 'an overarching statement of the concerns held by [the prison] over [Mr Jafri's] return', because when it came to redeploying Mr Jafri elsewhere, the College needed to make other prisons aware of the reason for Mr Jafri's exclusion from Sudbury Prison.
34. The question here is what the effect of this elementary error in the tribunal's narrative of events was. If the tribunal had read Mr Plummer's e-mail correctly, is it possible that its conclusion on whether the College had done everything it could to make Mr Kan change his mind have been any different? Or is it inevitable that its conclusion would have been the same? The fact of the matter is that the College knew from Mr Kan's responses that until Ms Corbett's allegations had been regarded as having been unfounded, Mr Kan was not prepared to let Mr Jafri work 'within a vulnerable adult environment'. Since the College was not in a position to decide whether Ms Corbett's allegations were true, what could it have done to persuade Mr Kan that Mr Jafri could work within such an environment? In the circumstances, we do not believe that it is possible that the tribunal's conclusion on whether the College had done everything it could have done to persuade Mr Kan to let Mr Jafri resume working in the prison would have been any different if the tribunal had read Mr Plummer's e-mail of 5 October 2010 correctly.
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35. (v) Perversity. The final point advanced on behalf of Mr Jafri is that even if these criticisms of the tribunal could not be said individually to have undermined the tribunal's conclusion that the College 'did everything they could to prevent any injustice' to Mr Jafri, they nevertheless combined together to undermine that conclusion to such an extent that it could truly be said that the conclusion was perverse in that it was one which the tribunal could not reasonably have reached on the evidence. The argument here is that when one looks at the evidence overall, it was just not open to the tribunal to conclude that the College had done everything which could reasonably be expected of it to persuade Mr Kan to change his mind.
36. We do not agree. The argument is no better than the sum of its parts. As early as 26 November 2009, Mr Kan had made his position clear. The allegations made against Mr Jafri by Ms Corbett were serious. They included allegations of harassment and bullying. Mr Kan was not prepared to allow Mr Jafri into the prison until he had been exonerated. As a matter of form, he had been exonerated by Mr Gillespie following Mr Jafri's grievance that Ms Corbett's allegations against him were false and unfounded. But as a matter of substance, Mr Jafri had not been exonerated at all. That had been brought to Mr Kan's attention by Mr Plummer's e-mails of 5 and 7 October 2010. The tribunal must be taken to have found that to ask Mr Kan to let Mr Jafri return to the prison when he had not been exonerated would have been an exercise in futility in the light of the stance which Mr Kan had taken from the outset. We cannot say that that was a conclusion which it was not open to the tribunal to reach.
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37. For these reasons, and with some sympathy for Mr Jafri who has in effect been dismissed because of allegations made against him which have been neither substantiated nor rejected, and who may therefore have been the victim of an injustice, this appeal must be dismissed.