Employment Cases Update

Elmore v The Governors of Darland High School & Anor UKEAT/0209/16/DM

Date published: 19/06/2017

Appeal against the dismissal of the Claimant's claim of unfair dismissal. Appeal dismissed.

The Claimant, a maths teacher, was dismissed on capability grounds and the dismissal was upheld by the appeal panel. The ET dismissed her claim of unfair dismissal, in particular recognising that although the decision of the appeal panel did not set out reasons for upholding the capability hearing's decision to dismiss, it could be gleaned that by upholding the original decision the appeal panel accepted the decision made and the reasons for the decision made at the earlier stage. The Claimant appealed.

The EAT dismissed the appeal. Despite the absence of a reasoned appeal decision or evidence from a member of the appeal panel, the Employment Tribunal was entitled to infer that the appeal panel upheld the capability dismissal for the same reasons as those relied on by the capability panel itself.

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Appeal No. UKEAT/0209/16/DM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 4 May 2017

Before

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

(SITTING ALONE)

ELMORE (APPELLANT)

(1) THE GOVERNORS OF DARLAND HIGH SCHOOL

(2) WREXHAM COUNTY BOROUGH COUNCIL (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant
MR RICHARD O'DAIR (of Counsel)
Instructed by:
NASUWT
Hillscourt Education Centre
Rose Hill
Rednal
Birmingham
B45 8RS

For the Respondents
MR KASHIF ALI (of Counsel)
Instructed by:
Wrexham County Borough Council
Legal Services
Guild Hall
Wrexham
LL11 1AY

SUMMARY

UNFAIR DISMISSAL - Procedural fairness/automatically unfair dismissal

Despite the absence of a reasoned appeal decision or evidence from a member of the appeal panel, the Employment Tribunal was entitled to infer that the appeal panel upheld the capability dismissal for the same reasons as those relied on by the capability panel itself.

There was no error of law in the Employment Tribunal's approach which was amply open on the facts and in the circumstances of this case. The appeal was therefore dismissed.

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

Introduction

1. This appeal concerns a capability dismissal that had the effect of ending the longstanding career of the Appellant (or "the Claimant" as I shall refer to her) as a maths teacher at Darland High School; a mixed community comprehensive in Wrexham for 11- to 16-year-olds. The Judgment of the Wrexham Employment Tribunal (Employment Judge P Davies, with Reasons promulgated on 25 April 2016) that the dismissal was fair was originally challenged on wide-ranging grounds by the Claimant. All but one of those were dismissed at a Preliminary Hearing by me last year. The sole surviving ground (ground 5) argues that the Employment Judge erred in law in concluding that the dismissal was procedurally fair because there was sufficient evidence to conclude that there had been a fair appeal. In particular, it argues that the decision of the appeal panel provided no reasons for the decision to dismiss the appeal and there was no evidence given by any member of the appeal panel so that there was no opportunity to test the reasonableness of the appeal panel's thought process and analysis.

2. The Claimant is represented by Mr Richard O'Dair. The appeal is resisted by Mr Kashif Ali for the Respondents. Both counsel appeared below, and both have provided me with helpful written and oral arguments for which I am grateful.

Factual Background

3. The factual background can be briefly stated. The Claimant qualified as a teacher in 1984 and worked as a teacher since then. She was appointed a full-time teacher of mathematics at Darland High School in September 2002. The school was subject to inspections by the Welsh School Inspectorate, Estyn, and the Estyn report for 2013 identified the school's performance in mathematics as consistently lower than that obtained in similar schools. Recommendations were made for improving the quality of the teaching and assessment in the Estyn report.

4. A new head of maths was appointed in September 2012, Mr Martin Williams, who replaced the former head, Miss Johnson. Shortly after he was appointed he observed a lesson taken by the Claimant in October 2012 and was concerned about her performance. Others subsequently observed the Claimant teaching lessons, and in due course the results of exams in January 2014 showed that the Claimant's class performed particularly poorly. There were further observations, as a result of which the Claimant was managed under the school's capability procedures. There were meetings, and the Tribunal found that the support that was provided to the Claimant was appropriate for affording her the opportunity to achieve improvements in her performance. Ultimately, however, the school was not satisfied with the Claimant's performance, and the extent to which she demonstrated any improvement, and reached the conclusion that dismissal was appropriate in all the circumstances.

5. In the course of the capability hearing that led to her dismissal, the Claimant's union representative relied heavily on the fact that she had throughout been assessed as 'adequate'. The school, however, responded on the basis that it set as its standard a requirement for her to achieve a 'good' lesson and that she never achieved what was set as the target. There was an appeal to a panel, which ultimately upheld the dismissal on capability grounds. The Tribunal recognised that the Claimant was a career teacher and described this case as a sad case. I endorse that observation. The consequences of dismissal are indeed severe for the Claimant. The Tribunal, however, found that it was for the employer to set the standard asked of employees of the school and not for a tribunal to substitute its own view as to the standard or as to the extent to which the employee reaches that standard.

6. Moreover, the Tribunal accepted that the Respondents are entitled to insist on levels of performance that are higher than those at comparable other institutions, especially in circumstances where maths was a poor performing subject in comparison. The Tribunal was satisfied that there was a basis for the Respondents' conclusion that the Claimant failed to reach the target or required standard. The Tribunal expressly accepted that standard was realistic and reasonable: it did not require all lessons to be 'good' lessons, but within a period of 12 months required one out of eight lessons observed to be assessed as 'good'. The Tribunal was satisfied that the Claimant was given supervision and encouragement and rejected the argument advanced by the Claimant that the school was not entitled to treat a teacher whose lessons were found to be 'adequate' as not meeting the standard. The Tribunal concluded that each case turns on its own particular facts and circumstances. Here, assessment by outside bodies led to the conclusion that the school was weak in maths, and against that background, the Tribunal accepted the standard set by the school was a reasonable one. The Tribunal looked at the procedure as a whole and reached the conclusion that the decision to dismiss was both procedurally and substantively a decision that fell well within the band of reasonable responses and overall was fair.

The Appeal

7. The Tribunal dealt with the appeal process at paragraphs 63 to 66 of the Reasons. It expressly recognised that the decision of the appeal panel, contained in a letter dated 27 April 2015, did not set out reasons for upholding the capability hearing's decision to dismiss. Nevertheless, the Tribunal concluded at paragraph 66 that:

"66. … it can be gleaned that by upholding the original decision the appeal panel accepted the decision made and the reasons for the decision made at the earlier stage. …"

8. No member of the appeal panel gave evidence at the Employment Tribunal hearing. Nonetheless, while the Tribunal observed that it might have been more helpful to have heard oral evidence from a member of the appeal panel, it was satisfied that the process looked at as a whole was a fair process in all the circumstances.

9. Mr O'Dair contends that it is an essential aspect of process fairness for an employee to be offered the opportunity to appeal against any formal decision made by his or her employer. That opportunity must be a real opportunity rather than a formality or a sham. I fully accept those submissions.

10. He goes on to say that in the absence of a reasoned decision letter or oral evidence from a member of the appeal panel explaining the basis of its decision to dismiss the Claimant's appeal there can be, and was here, no material that could enable an Employment Judge to make a proper finding that can stand in law that the appeal was a properly considered appeal rather than a sham or rubber stamping exercise. On that basis he submits:

(i) the Tribunal erred in law in this case in concluding that the dismissal was procedurally fair, since such a conclusion must necessarily have been based on a finding that there was a real appeal afforded to the Claimant. Here, however, there was no evidential basis for a conclusion that the appeal panel did in fact fairly consider and give a reasonable response to the appeal advanced by the Claimant against her dismissal because no reasons were given in the outcome letter to explain the decision that the appeal panel purportedly reached;

(ii) in the absence of a reasoned decision dismissing the appeal the Tribunal was not entitled as a matter of law to conclude that the dismissal was fair without hearing from a member of the appeal panel to explain the reasons for dismissing the appeal. In other words, unless a reasoned appeal outcome decision is provided, a tribunal cannot conclude that a dismissal process is fair without hearing from an appeal panel member (save only where such an appeal would be doomed to fail in any event or there are some good reasons for not calling the appeal panel member; for example, he or she is abroad, has died or is otherwise unavailable for good reason).

11. Mr O'Dair emphasises the fact that the Claimant was a long serving employee who was dismissed on capability grounds, she pursued an appeal, which was her right, and her appeal was not on any view doomed to fail. It is contrary to policy in those circumstances to permit a conclusion that such a dismissal is fair in circumstances where no reasons for dismissing the appeal are given and no witnesses put forward to amplify or explain the decision. Such an approach neglects to provide the basic protection available to employees for what can be and was in this case a career ending decision.

12. Having considered those submissions with care, I do not accept them. The Tribunal made detailed findings in this case about the dismissal stage of the capability process. Those appear at paragraphs 51 to 62. I do not set them out in full but they are important. In summary, the Tribunal heard evidence from Mr Williams, who was head of maths at the school and head of maths throughout the relevant period. He conducted many of the observations of the Claimant's lessons and concluded that given out of eight lessons observed five were 'adequate', three were 'inadequate' and none were 'good', her teaching did not achieve the required standard. He gave evidence to the Employment Tribunal and was cross-examined on the Claimant's behalf.

13. The other significant witness from whom the Tribunal heard evidence was Ms Kate Gater, a governor of the school. She chaired the three-member governor panel at the capability hearing. Again, the Claimant had the opportunity, and took it through Mr O'Dair, to cross-examine Ms Gater in relation to the dismissal stage of the process. The Tribunal referred to the fact that Ms Gater was pressed on the reasons for the decision to dismiss and found her evidence to be impressive. The Tribunal found that the decision was based on the fact that the Claimant had not achieved the target set by the school in relation to what is inevitably an important educational subject and because of the Claimant's attitude towards achieving that target (see paragraph 58). In particular, Ms Gater did not accept that it was sufficient for a teacher to teach lessons regarded as simply 'adequate'; rather, the expectation was that a lesson would achieve the standard of being 'good'. The Tribunal accepted Ms Gater's evidence and found that she, together with other members of the panel, approached the questions they had to decide in an "objective, impartial and balanced way in coming to the decision that they did" (paragraph 62). The Tribunal accepted that they made the decision in relation to what was presented before them and concluded that dismissal was the only option in the circumstances because of everything that had been put before them.

14. That is the important context to consider when looking at the appeal stage in this case. Although I fully accept, as Mr O'Dair has submitted, that this was not an appeal that was necessarily bound to fail, it is to be considered in light of what had gone before. Moreover, as the Claimant accepts and as her trade union representative Mr Adkins made clear at the appeal hearing, the appeal was a re-running of the arguments that had been put before the original panel (see paragraph 66). There was neither any fresh evidence nor any new or alternative arguments put before the appeal panel that had not been advanced before the original panel.

15. So far as the appeal hearing itself is concerned, there is no doubt that the Claimant attended the appeal hearing; she presented both oral and written representations to the appeal panel; and she was represented by her trade union representative. There is no suggestion that the appeal panel was improperly constituted, nor is there any allegation of bias or improper behaviour of any kind by any member of that panel. Minutes of the appeal hearing were produced and made available to the Claimant, and were before the Tribunal. The minutes indicate discussion and exploration of relevant issues: members of the appeal panel asked specific questions designed to explore the issues raised in relation to the Claimant's capability and her ability to perform to the required standard in future; and also to explore points made by the Claimant herself. The minutes reflect discussion about the school's position that 'adequate' as a standard was not regarded as sufficient and questions were asked of the Claimant about her ability to plan and prepare for observations of her lessons and about the fact that she had not yet managed to succeed in teaching to the standard of a single 'good' lesson. She was asked directly by the chair of the appeal panel when she would be able to deliver a 'good' lesson. Her response was:

"I plan to do a good lesson. I wasn't thinking I need [observations] to be good, I had all [other] lessons to think about."

She was asked whether she gave it enough focus, and her response was, "I did but only so many hours in a day".

16. The discussion and questioning of the Claimant reflected by the minutes is inconsistent with any suggestion that this appeal hearing was being treated as a mere formality or rubber stamping exercise and does not provide any basis for thinking that irrelevant factors were in the minds of the appeal panel or being treated as a basis for any of the decision making. There was, on the face of the minutes, obvious engagement by the panel members with the issues at stake.

17. So far as the appeal decision itself is concerned, true it is that the outcome letter dated 27 April 2015 does not provide reasons for the decision to uphold the original dismissal decision, and Mr O'Dair is entitled to criticise the letter on that basis, particularly given that it was a career ending letter for a longstanding member of staff. However, the letter sets out the capability hearing panel's decision together with the grounds for that decision and does so in the following terms:

"… despite being provided with an appropriate level of support and monitoring, your performance at work continues to fall below the standards required by the school. The Committee also found no assurance that a further period of support and monitoring would be likely to improve your level of performance at work. …"

There were accordingly two principal bases for the original dismissal decision: first, the Claimant's performance to date fell below the required standards; and secondly, so far as the future was concerned, she provided no basis for any confidence that any further period of support and monitoring would lead to an improvement in her capability. The letter states that the ground of appeal advanced by the Claimant was that that decision was unfounded, unfair and perverse.

18. The Employment Judge dealt with the appeal decision letter at paragraph 66, holding that it was implicit in the decision that by upholding the original decision, the appeal panel accepted not only the decision made by the capability hearing panel but also its reasons. Though no direct evidence from the appeal panel members was heard, the Employment Tribunal was satisfied nevertheless that the appeal panel set out in brief form their thinking in relation to the Claimant's continued employment and in upholding the original decision by implication did so for the reasons originally given.

19. The question is whether that conclusion was open in the circumstances of this case. It seems to me that it was. First, there is no doubt that the Claimant's teaching was regarded as below the standard set by the school. That was not in dispute. The Claimant accepted that she did not reach the school's standard but challenged it as unreasonable. Secondly, the capability hearing was robust and fair, and the panel reached its decision in an objective, impartial and balanced way on the Tribunal's findings. Thirdly, the Claimant did not advance any fresh evidence or new arguments at the appeal stage. Instead, the appeal involved a rerunning of the arguments and the material originally relied on. Absent a proper evidential basis that is more than speculation, it is unrealistic to think in those circumstances, that the appeal panel did not share the view that the Claimant failed to meet the school's standard of teaching when it reached the same decision as the capability hearing panel had reached.

20. The only countervailing evidence identified in this regard is the evidence given by Miss Hawke and Miss Johnson. Their views on the Claimant's capability were addressed in the context of the capability hearing, where they were canvassed in some detail. As the Tribunal found, the former head of maths, Miss Johnson, was not at the school from September 2012 and was not there in the period relevant to the observations of the Claimant's lessons. Ms Gater concluded that Miss Johnson's judgement about the Claimant's performance in that earlier period was simply not relevant (see paragraph 59). Although the Claimant is entitled to point to the fact that the deputy head of maths, Miss Hawke (who was present during the observation period), was supportive of the Claimant's capability, the Tribunal found that the capability panel considered that Miss Hawke had not been involved in the process, had not undertaken the observations in accordance with the process and therefore was not in a position to have provided the sort of detailed critique that was required as part of the capability process (see paragraph 60). The countervailing evidence was accordingly rejected by the capability hearing panel and reasonably so on the Tribunal's findings.

21. Fourthly, the appeal panel explored the question of future improvement in the Claimant's level of performance as reflected in the minutes and the questions that were asked of her. In light of the response she gave, viewed objectively, it seems to me that it would have been entitled to conclude that she gave no assurance of future improvement.

22. In all those circumstances, and absent some evidential basis for concluding or suspecting that the appeal panel had irrelevant or irrational considerations in mind or approached the appeal hearing in an improper way or on an improper basis, the Employment Judge drew a permissible inference that the appeal panel dismissed the appeal on the same grounds and for the same reasons as those identified by the capability hearing in reaching the conclusion that the Claimant should be dismissed. There is no perversity challenge in relation to that conclusion, and I consider that the Employment Judge approached the matter correctly in law.

23. In a sense that conclusion answers the second limb of the argument advanced by Mr O'Dair because the Judge found that implicit reasons for the decision were given by the appeal panel. However, since the matter was argued by Mr O'Dair and in case I am wrong, I do not accept that there is a legal requirement in every unfair dismissal case where reasons for dismissing an appeal are not given, for the appeal officer to give evidence at a tribunal hearing in order to enable a tribunal to find that the dismissal procedure as a whole is fair. Whether or not an appeal officer is required to give evidence is a fact sensitive question that inevitably depends on the circumstances of the particular case. I can well imagine, as Mr Ali submitted, that in a case where new evidence or new arguments are advanced at the appeal stage, a failure to provide a reasoned appeal outcome decision together with a failure to proffer an appeal panel witness might lead to the conclusion that the respondent has failed to discharge its evidential burden. However, each case must be judged on its own facts.

24. In this case, the Employment Judge recognised the fact that he had not heard directly from any member of the appeal panel but was satisfied that the appeal panel set out in brief form their thinking in relation to the dismissal decision and felt able to infer that by upholding the original decision the appeal panel had reached that conclusion for the same reasons as those given by the original panel. That was possible here because the arguments on appeal were the same arguments as those that had been put before the original panel and because there was no new evidence available to the appeal panel that was not put before the original panel. The Employment Judge recognised that the whole process had to be looked at when considering procedural fairness and concluded, having regard to the capability and appeal hearings, that the decision to dismiss was both substantively and procedurally fair. Significantly, the Claimant gave neither panel any assurance that she was likely in the future, whether near or distant, to be able to reach the required standard of teaching at least one 'good' lesson. Those conclusions were amply open to the Employment Judge in this case and demonstrate no error of law. For all those reasons, and notwithstanding the forceful submissions made by Mr O'Dair, who has said all that could possibly have been said on the Claimant's behalf, this appeal fails and must be dismissed.

25. Having delivered this judgment Mr O'Dair sought permission to appeal to the Court of Appeal. The mere fact that the appeal was a rehearing does not arguably lead to the conclusion that it is illogical or in error of law to hold that the decision to uphold the original dismissal decision was on the same grounds as those given by the original panel, particularly in circumstances where, as here, the Tribunal found an objective and reasonable basis for concluding that the Claimant failed to reach what was set as a realistic and reasonable standard of teaching. The arguments advanced at the appeal hearing were exactly the same as those she had advanced earlier, and the evidence she adduced, both so far as her capability over the period of observation and also in relation to her ability to improve in future, was, again, exactly the same at the appeal hearing as the evidence she had adduced earlier. In those circumstances, and in the absence of any evidence that amounts to something more than speculation that there were irrational or irrelevant considerations in the minds of the appeal panel members or that there was something improper about the appeal process, it seems to me that the Tribunal was amply entitled to infer that the appeal panel's reasons were the same as those given by the original panel. The point raised on this appeal has now been fully considered and this further appeal has no realistic prospect of success. There is no other compelling reason to give permission to appeal. The application was therefore refused.