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Redmans are specialist unfair dismissal lawyers, representing Claimants and Respondents in the Employment Tribunal.

The case of Boardman v Nugent Care Society concerns the dismissal of a teacher in 2008 for allegedly assaulting (“manhandling”) an unruly pupil at the school she was working at. Her dismissal was found to be fair and not wrongful by the Employment Tribunal (“ET”) but an appeal by the Claimant was allowed by the Employment Appeal Tribunal (“EAT”) as the EAT considered the ET had got key facts relating to the alleged manhandling wrong. The case was therefore resubmitted to a different Employment Tribunal for another hearing.

The facts in Boardman v Nugent Care Society & Anor

Mrs Boardman (“the Claimant”) commenced employment with the Nugent Care Society (“the Respondent”) in 1995. She worked as a mathematics teacher at the Clarence High School, an independent school that caters for children who have particular educational, behavioural and emotional problems. The Claimant had an exceptional record at the school prior to her dismissal in 2008.

On 1 February 2008 there was an incident at the school. Mrs Boardman was supervising detention. One of the pupils (“DH”) was unhappy at being kept in detention and started causing problems, including throwing food and attempting to smoke. Mrs Boardman asked him to stop. Mrs Dunn, who was also supervising detention, was upset by DH’s behaviour. She asked to leave and Mrs Boardman gave her permission. However, DH also tried to leave with Mrs Dunn and some “manhandling” of DH occurred. The exact facts of what the “manhandling” entailed and whether it had occurred was disputed. Mrs Dunn, however, complained of the treatment that Mrs Boardman had afforded to DH. The Claimant was suspended on 4 February 2008 and a police and internal investigation was undertaken into the matter. A disciplinary hearing was then held on 25 July 2008 and the Claimant was dismissed on 31 July 2008 for gross misconduct. An appeal panel subsequently confirmed the dismissal and the Claimant submitted claims to the Employment Tribunal of (among others) unfair dismissal and wrongful dismissal.

The Employment Tribunal dismissed the Claimant’s claims for unfair dismissal and wrongful dismissal. It considered that the Claimant had been inconsistent in the way she had given evidence to the Tribunal and preferred the evidence of Mrs Dunn. It also believed that the fact that there had been some “manhandling” was undisputed. Further, the (majority of the) Employment Tribunal considered that her dismissal was within the range of reasonable responses in the circumstances (“the Burchell test”).

The Claimant subsequently appealed on five points to the Employment Appeal Tribunal, including that the facts relating to the manhandling were not “undisputed” (and the significance of these), the higher degree of scrutiny afforded to the Claimant’s account, that a reasonable investigation had not been undertaken, and that the Employment Tribunal had erred in applying the Burchell test.

The law relating to unfair dismissal and gross misconduct

Under s.94 of the Employment Rights Act 1996 employees have the right not to be unfairly dismissed by their employer. One of the potentially fair reasons for dismissal under s.98 of the Employment Rights Act 1996 is “misconduct”. Employees can therefore be fairly dismissed for misconduct. However, whether a particular incident of misconduct warrants the sanction of dismissal is more ambiguous. Whether an employee can be fairly dismissed for an incident of misconduct depends upon:

  1. The nature of the misconduct
  2. How serious the misconduct was; and
  3. Whether this is the employee’s first offence

Certain types of conduct are well recognised as potentially constituting “gross misconduct”. These include theft, dishonesty, violence, disobedience, inebriation or misuse of company property (among others). As well as there being certain categories of easily recognisable offences which constitute gross misconduct the employer may also have disciplinary procedures drawn up which specify what gross misconduct may constitute. Employers should endeavour to draw up an exhaustive list of what is considered to be gross misconduct and that the potential outcome of such misconduct may be dismissal. If there are no rules determining what is to be deemed gross misconduct then dismissal for a first offence will probably be found to be unfair.

The seriousness of the misconduct is also important in determining whether a gross misconduct dismissal may be a fair sanction. However, should the misconduct not be particularly serious then a gross misconduct unfair dismissal may have occurred.

As stated above, employees may be fairly dismissed for their first offence if the misconduct is particularly serious, the rules have stated that that particular conduct will warrant dismissal, or the employee has stated that a warning wouldn’t suffice to change their attitude.

The Employment Appeal Tribunal’s judgment in Boardman v Nugent Care Society & Anor

The Employment Appeal Tribunal considered the five following grounds of appeal:

  1. The ET had erred in finding that the facts relating to the manhandling were not “undisputed”
  2. The (actually) disputed facts were of great significance
  3. The Employment Tribunal had afforded a higher degree of scrutiny afforded to the Claimant’s account
  4. The ET had erred in finding a reasonable investigation had been undertaken; and
  5. The ET had erred when applying the Burchell test.

The Claimant succeeded on the first two points. The EAT considered that the ET couldn’t reasonably be construed to have accepted the fact that there had been manhandling in stating (in the disciplinary hearing) that she had been sacked after 30 years’ experience of teaching “for the throw of a small child”. The majority of the ET found that this constituted a plea in mitigation (and hence a confession) rather than a particular form of denial. The EAT stated that this was an unreasonable conclusion to have come to when the Claimant had, at every other opportunity, denied the fact that she had manhandled DH. The matter was therefore remitted to a different Employment Tribunal to consider the gross misconduct unfair dismissal.

Our specialist unfair dismissal lawyers’ thoughts on Boardman v Nugent Care Society & Anor

Although the Claimant succeeded in her appeal, there is no guarantee that a further Employment Tribunal will find her dismissal to have been unfair. The point that the Claimant succeeded on was that the facts of the manhandling were “disputed” and therefore the Employment Tribunal should consider this in determining whether an unfair dismissal and/or a wrongful dismissal had occurred. Gross misconduct unfair dismissals occur on a frequent basis and if you think that you’ve been unfairly dismissed then you should contact an expert employment lawyer.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

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