Scottish Court of Session Decisions

"[Pupil A] attended the Accident and Emergency Department at 11.56 hours on 2nd May 2000 (sic) with a complaint of a painful left elbow and offered the history that one hour earlier his left arm had been twisted up behind his back. On clinical examination he was tender about the radial head and the coronoid process and radiographs showed a fracture of the coronoid process of the ulna and the suspicion of a fracture through the radial head.

I have reviewed these films and would agree that there is a fracture of the coronoid process amounting to a large chip. The injury to the radial head does not appear recent to my eye.

I will, therefore only offer my opinion on the possible mechanism of the coronoid process fracture.

You state that Dr Mair (the examining doctor) had stated that this was due to forced hyper-extension of the left arm. This is not absolutely correct. She, in fact, stated that was the history that was obtained.

While that mechanism might well have produced an injury, a more likely mechanism was the second one you suggested in your letter, i.e. the arm being bent at the elbow and forced, but any sort of twisting action which involved the elbow might well have produced the injury.

You ask also about the degree of force that might be necessary to produce this injury and my opinion is that this could be relatively little were it applied at the end of a longish lever, in other words, at the wrist or the hand of the arm involved."

"Having fully considered the evidence contained in the statements, the medical reports and the verbal evidence heard today, I have come to the conclusion that Mr Porter:-

(1) used unnecessary force;

(2) used inappropriate physical intervention techniques;

(3) that as a result of doing so, a pupil at the School sustained a fracture to

I consider that Mr Porter's actions amount to gross misconduct."

"It was clear that Mr Campbell had considered all of the evidence very carefully indeed, and we considered that by and large his submissions were well founded. He had sifted through the witness statements in detail and pointed out the inconsistencies and conflicts but, in our view, these were not properly addressed by the respondents and by Mrs Arrowsmith in particular. No rationale was given for her findings, she did not appear to have considered Mr Campbell's submissions and there did not appear to have been any proper weighing of the evidence (see page 9 of the Minutes of the Disciplinary Haring on 22 June 2000 at R6). We accepted Mr Campbell's contention that it was just a case of Mrs Arrowsmith saying 'I've heard all the evidence. I consider ... 'and, of course, this mirrored the approach which was taken by Mr McNally in the presentation of this 'Findings' following the 'Investigatory Process'. We also accepted Mr Campbell's evidence that there was marked reluctance on the part of Mr McNally to go through his 'thought processes' (R 6 App 1).

Further, while a number of statements were taken the handover from Ms Whitmore to Mr McNally was not at all satisfactory, and indeed it emerged at the Appeal that her findings had been different from Mr McNally's findings. She had concluded that Mr Porter had used inappropriate techniques; had failed to express any remorse for his involvement in the incident and a child had been injured, whereas Mr McNally found that Mr Porter had used unnecessary force, had utilised inappropriate physical intervention techniques and as a result Pupil A had sustained two broken bones in his left arm. We are also bound to say that in our view it was not the proper function of an Investigatory Process to make such definite findings before all of the evidence had been considered and the applicant and his representations and we noted that these findings were identical, more or less to the findings of Miss Arrowsmith at the Disciplinary Hearing.

Moreover, Mr McNally made these findings without the benefit of a detailed Medical Report which was only obtained after the Disciplinary Hearing on 31 March had been adjourned and, of course, that Report (A27) said, amongst other things, that the force necessary to produce the injury which Pupil A sustained 'could be relatively little'. We were extremely surprised that the respondents had not at the earliest opportunity sought to obtain a detailed Medical Report and that they were prepared to go ahead with the Disciplinary Hearing without one and we were driven to the view, that having regard to the nature of the injury sustained by Pupil A, the School were determined to find someone responsible: there was a preconception that someone had to be 'guilty' and that an answer had to be found for Pupil A's injury. The fact that the respondents were prepared to discipline Mr Porter without a proper Medical Report was indicative of this as were the specific findings by Mr McNally and, in particular his finding that excessive force had been used which he made without the benefit of proper medical evidence. These findings were not altered in any way when the Medical Report (A27) was received and a copy of the Report was only given to Mr Porter's representative on the day before the Hearing, although by that time the School had had it for almost a month. There was no proper weighing or cross referencing of the evidence in our view by Mr McNally and in particular by Mrs Arrowsmith and nor did it appear that the School considered properly Mr Campbell's well founded submissions either at the Disciplinary Hearing or at the Appeal Hearing as in our view a reasonable employer would have done. The respondents did not appear to be willing to even contemplate the possibility that Pupil A and the other pupils who gave statements might have been exaggerating what had happened. Further, neither Ms Whitmore nor Mr McNally were present at the re-convened Disciplinary Hearing on 22 June 2000. Instead the School was represented by a Solicitor, Mr Taggart and we are bound to say that we were surprised that he was involved in the Hearing in such a proactive manner asking questions which normally one would have expected to have been asked by the Chair, and who appeared to approach the matter on the basis that his task was to substantiate Mr McNally's findings. We were not surprised therefore, when Mr Campbell, said at the Tribunal Hearing that he was 'taken aback' when Mr Taggart endeavoured to oppose the evidence which he had led and in effect actively cross examined his witnesses as a Solicitor would do in Court and then retired with Mrs Arrowsmith when she was considering her decision. Mr Taggart also appeared to approach the Appeal in the same manner, endeavouring to substantiate Mrs Arrowsmith's decision and we were puzzled as to why he should, in effect, act as the Principal's agent at the Appeal.

Further, although we heard a great deal of evidence about the use of CALM techniques and we accepted that Mr Porter had been given a measure of training, at the end of the day we were not persuaded that Mr Porter, had in fact, contravened the School's policy in this regard. The picture was further confused when we heard from Mrs Arrowsmith that certain parts of the 'CALM' Manual (R7) were not taught and it did not appear to us that clear guidance had been given to Teachers and the School on the areas of the Manual which were to be disregarded.

We arrived at the view, therefore, that for the reasons stated above, and with reference to Burchell, that the respondents did not have reasonable grounds for their belief in Mr Porter's misconduct and that accordingly, his dismissal was unfair" (at pp. 10-11).

"8. We have come quite clearly to the view that the Tribunal has erred in its approach by effectively substituting its own view for that of the employer. The approach of a Tribunal in this type of situation must be simply to determine whether or not the investigation into an alleged incident such as this type, produces sufficient material before the employer to entitle it to conclude reasonably that the incident had in fact taken place in other words, that they had a genuine belief that misconduct had occurred. It is not for the Tribunal, as it has done in this case, to weigh the evidence and reach its own conclusion as if it was conducting the original investigation itself. Accordingly, we consider there is considerable force in a number of complaints by Mr MacKenzie in the passage of the Tribunal's decision which we have quoted, to suggest that they were drawing their own conclusions as to the quality and nature of the evidence which was not their task for the reasons we have set out. Given that approach, while we would not necessarily categorise the decision of the Tribunal in this context as perverse, it certainly goes beyond the scope of what it was required to do and, therefore, we consider its conclusions cannot stand. In our view, the only possible conclusion open to the Tribunal was that the employer had sufficient material before it to entitle it to conclude that misconduct had occurred and such a conclusion was rationally based ...

12. In these circumstances we consider this is one of the rare cases where this Tribunal, in the interests of justice, is entitled to substitute its own finding for that of the Tribunal."