APPEARANCES
| For the Appellant |
MR PATRICK GREEN
(of Counsel) |
| For the Respondent |
MR RICHARD HARRISON
(of Counsel)
Instructed by:
London Borough of Lambeth Legal Services
Room 205
Lambeth Town Hall
London SW2 1RW |
SUMMARY
Redundancy: Fairness
On the issue of a fair redundancy, the tribunal failed to consider statute and regulations and local authority advice in relation to redundancy procedure.
HIS HONOUR JUDGE ANSELL
- This is an appeal from a Decision of a London (South) Tribunal who, following a hearing in October 2003 and in Reasons promulgated to the parties on 24 May 2004, unanimously decided that the Respondents did not unlawfully discriminate against the Appellant on the grounds of race, nor did they unfairly dismiss her.
- The full hearing takes place as a result of permission granted at a preliminary hearing initially before HHJ Serota QC and lay members on 26 November 2004 and a further preliminary hearing before HHJ Reid QC and lay members on 16 February 2005. Judge Serota had ordered that the Tribunal Chairman be invited to expand on certain paragraphs of the Decision and we refer to those matters below.
- At the heart of this appeal is an alleged failure on the part of the Tribunal to consider the Respondents' failure in dealing with the Appellant's redundancy, to consider statutory procedure to be followed by schools in relation to dismissals and also advisory procedure given to schools by the Second Respondent, the London Borough of Lambeth entitled "Managing Workforce Change Procedure".
- The case concerned a primary school situated in the London Borough of Lambeth which, by virtue of its location, was ethnically and culturally diverse. The head teacher up to 2002 was Miss Marilyn Campbell-Cessal. The Appellant had been employed from 30 October 2000 and another teacher who was involved in the Tribunal proceedings, Miss Linda Ali, began in January 2002. The school had a history of poor performance and an OFSTED report in May 2000 identified the school as performing unsatisfactorily, particularly in relation to leadership and the school was placed in the category of "serious weakness". As a result and following consultation with the staff and governors, the head teacher restructured the staff posts, deleting the deputy head post, and creating two lead teachers post. The Appellant was appointed as a lead teacher for key stage 2 and as a maths co-ordinator and Miss Ali as lead teacher for key stage 1 and an English co-ordinator. They were each earning £39,400 per annum by the end of the summer term 2002.
- The school did not improve and the existing difficult financial position worsened. A further OFSTED inspection was due in early September 2002. The head teacher resigned with effect from July 2002. Mr Craig Tunstall was appointed the new head and although this was to start at the beginning of September 2002, he attended the school at the end of the summer term and also worked during the school holidays. He had been told by the previous head that the school's deficit amounted to approximately £40,000 although following discussions during August 2002 with the Local Authority, it became apparent that that deficit was considerably larger and a figure of £137,000.00 had been carried over from the previous year. Mr Tunstall met with the staff and, in particular, advised the Appellant and Miss Ali, that they should apply for headship training to commence in September 2002.
- Mr Tunstall began to urgently address the school's problems and, in particular, identified that no one person in the school had responsibility for managing pupil assessment and development across the whole of the school which he considered was a serious weakness and likely to hamper the necessary improvement of standards within the school. He came to the conclusion that the school had a pressing need for a non-class based deputy head teacher. A deputy head had, in fact, been seconded from another school, but that person was merely teaching and not apparently performing any major administrative tasks. In discussion with the local authority during the summer, it became apparent that the projected deficit for April 2003 was over £200,000, although the local authority were prepared to defer repayment of the 2001/2002 deficit over a period of four years. In conjunction with the local authority, Mr Tunstall drafted a restructure plan and discussed it with the chair of governors. The plan involved the appointment of a non-teaching deputy head and the creation of two senior teaching posts, one for the upper school and one for the lower school which would be at lower grades than the post currently occupied by the Appellant and Miss Ali and at a salary of some £5,000 less. The chair of governors, Ms Barnes, approved the proposals and the local authority's human resources manager, advised Mr Tunstall that he must consult with the trade union staff involved as soon as possible.
- Members of the staff returned to school on 4 September and the Appellant was spoken to on 5 September. The proposal was explained to her and the reasons for it. She was told that she would have the opportunity to apply for the new post of deputy head. Other senior members of staff were also told about the plans. Miss Ali was absent from work due to ill health and Mr Tunstall wrote to her to explain the proposals. On 6 September other members of staff were informed and a detailed and lengthy letter was sent to all the governors.
- The OFSTED inspection carried out between 16 and 19 September produced, as expected, a poor report with particular criticism of the senior management team. The report recommended action similar to that which Mr Tunstall intended to instigate.
- The Appellant contacted Mr Proudfoot of her union, NASWUT, who then referred it to Mr Richard Beeby, the local representative. The Appellant had understood from Mr Proudfoot that the head teacher's actions in attempting to deal with the restructure and the redundancy exercise simultaneously were "illegal" and that view was also supported by Mr Beeby. The Tribunal's decision is lacking in details as to what consultation took place during September other than that Mr Beeby was unable to attend one consultation meeting scheduled for the trades unions and made no submissions to the governors that the actions were illegal.
- On 25 September, the Appellant was formally informed by Lambeth Education that she was potentially redundant although the letter indicated that matters had in fact proceeded at a pace with regard to the restructuring. The letter confirmed that the new post of deputy head and two new senior teachers had been created and that the position for deputy head was to be advertised in the national press the following week. The letter indicated that if she was interested in the vacancy, she should apply and if she fulfilled the essential aspects of the selection criteria, she would automatically be added to the short list. She was also offered redeployment into the new post of senior teacher, although it was deemed not to be suitable alternative employment due to the salary difference which, we indicated, was around £5,000. If she was to accept that lower position, it would not preclude her from applying for the deputy head position. She was also offered the alternative of applying for premature retirement/severance and in that connection, was invited to complete the enquiry form and return it by 3 October. The letter indicated that the arrangements had been agreed with the trade union representatives due to restrictive time constraints, but indicated that she was entitled to appeal against the governing body's proposals to delete the post. She was sent a copy of the managing workforce change and offered the opportunity of making oral representations to the governors, again to be done by 3 October.
- Both the Appellant and Miss Ali completed severance forms and Miss Ali accepted voluntary severance after receiving her estimate in early October. The Appellant did not accept the offer of severance and appealed against the redundancy, objecting to demotion and loss of status and indicating that if she left the school, it would affect her ability to complete the headship course she had commenced. She also characterised the reason for this proposal as being solely for financial reasons and disagreed that there would be any material financial savings from the part of the restructure that affected her posts. She also alleged that the changes were rapid, lacked adequate consultation and were handled insensitively. By letter dated 18 October, she was informed that arrangements had been made for the staffing committee of the governors to hear her oral representations on 28 October and was advised that in the event that her post was deleted, she would have a further right of appeal to a formal panel and that appeal would take place the following day.
- The oral hearing took place on 28 October and involved three governors, Karen Barnes, the chair, and two others and was attended by representatives of the local authority, the head teacher, the Appellant and Mr Proudfoot. Having heard representations, the panel dismissed Mrs Brown's appeal. The next hearing, which was due to take place on 29 October, was rescheduled until 30 October. The full governing body met on 29 October and ratified the head teacher's proposals.
- The Appellant was absent from work due to sickness from 29 October, but had formally requested an appeal and also accepted severance. The local authority wrote on 30 October, pointing out that under normal circumstances, any appeal should be heard prior to consideration being given to an acceptance of a severance payment, but in the light of the Appellant's sickness and since it was unclear when she was due to return to work, she was granted an extension of time to appeal. Meanwhile, because of the school's financial difficulties, she was given formal notice of dismissal which would be retracted with immediate effect should the appeal panel uphold her representations. Until such time as the appeal was to be heard, the application for severance had been accepted. The dismissal was to take effect on 31 December. The Appellant did not, in fact, receive the letter of 30 October because of a mistake in the address and a duplicate letter to the correct address was sent on 11 November.
- The appeal hearing eventually took place at the school on 17 December, chaired by the new chair of governors, Graham Pycock, together with two other governors and Mr Proudfoot represented the Appellant. The appeal was unsuccessful and the Appellant was notified by letter dated 18 December that the appeal was dismissed and a letter confirming her dismissal was sent to her dated 31 December. She was able to negotiate a further period of notice ending on 30 April for which she was paid in lieu, in addition to the receipt of her severance pay. In the course of the appeal, Mr Proudfoot alleged that the Appellant had been told by Mr Tunstall that only an external applicant could be considered for the new post of deputy head, although this was denied. Neither the Appellant nor her representative had suggested within the appeal that race discrimination was a relevant factor in the proposals.
- Having set out the relevant law, the Tribunal concluded that the reason for dismissal was redundancy and considered the issue of fairness in paragraph 51 of her decision as follows:
"We accept the Applicants' concerns and complaints that the redundancy procedure took place very quickly- However, the Tribunal were satisfied that the Head Teacher and the Chair of Governors in consultation with the appropriate LEA Officers had identified that urgent measures had to be taken in order to address the substantial concerns relating to the good running of the school. The Tribunal was satisfied that Mr Tunstall did all that he could reasonably do to keep the Applicants fully appraised of the circumstances and consulted with them. We consider that the Applicants were not disadvantaged by his actions. The Tribunal was satisfied that the Applicants were fully informed of the reasons for the proposals and they each had a fair opportunity to put their points against making their posts redundant. We were also satisfied that the Applicants could have accepted the Senior Teacher (+,3 management points) post and applied for the Deputy Head post for which they would have been automatically short-listed. No alternative was available in the circumstances "Their decision not to accept the alternative employment and not to apply for the Deputy Head post was not affected to their detriment by anything done or said to them by the Respondent. We find that they made the decision not to accept the alternative post or to apply for the position of Deputy Head having been fully apprised of all the relevant circumstances. The Applicants were both treated fairly and reasonably during this difficult period for the school and these complaints that they were unfairly dismissed were not well-founded".
Accordingly, the Tribunal concluded that the Appellant was not unfairly dismissed. The Tribunal's conclusions on race discrimination were contained in paragraphs 54-56.
"
54- The Tribunal found that the Respondent's witnesses gave clear and cogent evidence about the circumstances relating to the school's financial situation and performance that led to these redundancies.
55. The Tribunal found that race was not a factor in the proposals of Mr Tunstall or in his actions. Furthermore the Applicants had both been made guaranteed offers of jobs as senior teachers which would have been accepted. They had the option of remaining at the school or accepting voluntary severance for they both accepted the latter. We conclude that the Applicants failed to prove facts from which the Tribunal could uphold their complaint of unlawful race discrimination.
56. It is the unanimous decision of the Employment Tribunal that the Respondent did not unlawfully discriminate against the Applicants on grounds of their race".
- Judge Serota invited the Tribunal to expand on paragraphs in the decision as follows:
1. To set out its reasoning and to explain which facts it found that were relevant to the finding that there was a redundancy, as found in paragraph 49
2. To set out its fu1dings as to what the consultation process was and expand on its reasoning in paragraph 5] as 10 why it regarded it as adequate
3. To explain its reasoning for its finding in paragraph 51 that the Applicants were not discouraged from accepting or applying for alternative posts within the school
4. To set out its reasoning and the relevant facts it found to support the decision in paragraph 52 that the Respondents did not act unlawfully with reference to the Education (School Governors) Regulations 1999 and S25 to Schedule 16 of the School Standards and Framework Act] 1998".
- In answer to question 1, the Tribunal referred to the history that we have outlined above and concluded that the requirements of the Respondents for the Appellant and Miss Ali to carry out works as lead teachers who were expected to cease or diminish from August 2002 when the chair of governors approved the head's reorganisation proposals and the requirement ceased when the governing body formally approved the plan in October 2002.
- In answer to question 2, the Tribunal referred to the history of the consultation process set to commence on 5 September and to conclude at the date of the final appeal hearing. The Tribunal considered that the consultation process was adequate set against the background that included that the circumstances required immediate action to be taken and the probability that the plan be approved by the governing body.
- In relation to question 3, the Tribunal concluded that they accepted the evidence of the Respondent's witnesses that the position had to be advertised nationwide and that the Appellant would have been guaranteed an interview had she applied and also that she was offered the alternative post instead of taking redundancy.
- In answer to question 4, the Tribunal had concluded that the governors had not acted in bad faith and rejected the notion that the reorganisation was a pre-text for dismissing employees whom Mr Tunstall wanted to get rid of. They concluded that the Respondents did not act unlawfully with reference to the statutory framework because they had power to take the action they did and ratification was lawful under regulations 41 and 44.
- On behalf of the Appellant, Mr Green made four substantial complaints. Firstly, that the Tribunal failed to consider as regards the issue of redundancy and/or fairness, the employer's failure to follow the appropriate statutory procedure. He also made a similar point as regards the failure to follow the practice set out in Lambeth's document entitled "Managing Workforce Change Procedure". Thirdly, he complained that the costings and financial calculations underpinning the need for a restructuring were at no stage shown to the Appellant, her representatives or, indeed, the governors and were not produced on disclosure before the Tribunal even though it was claimed that it was an issue before them. Lastly, he criticised the consultation process as regards the lack of information available during that process as regards the possibility of alternative proposals.
- Mr Green first of all took us to various aspects of the advisory document from Lambeth Education entitled "Managing Workforce Change Procedure". The document provides advice to the governing body who, under the Education Reform Act 1996, are responsible for deciding upon the staffing structure of the school. Section 1 of the document entitled "Introduction" sets out advice as regards the appointment of a staffing sub-committee. The relevant paragraphs are 1.4 and 1.5 as follows.
"1.4 Once the staffing needs of the school have been established they should be reported, in general terms to the Governing Body. If it is anticipated that there will be a need to identify surplus staff there must be no discussion by the full Governing Body of the matter. This is to ensure that there are sufficient Governors not involved in the original decision to hear an appeal. Failure to ensure this division of responsibilities may render the decision-making process unlawful because it will deny the right of an unprejudiced appeal.
1.5 To avoid difficulties under employment legislation, it is essential that Governing Bodies with fully delegated powers either adopt the principles set out in these Management Guidelines or comparable procedures. As part of this process the Governing Body will need to have established a staffing Sub-Committee of three governors to carry out the identification of staff and an Appeals Sub-Committee of three governors not involved in the original decision."
….
"3.2 The requirements of a fair dismissal by reason of redundancy are:
• The employee has been given as much warning as possible of the impending redundancy situation.
• Any recognised trade union or employee representatives are consulted, with a view to reaching agreement, in an attempt to avoid or minimise the need for redundancies.
• Where any reduction in staff is unavoidable, that it is achieved fairly and with as little hardship as possible.
• Any alternatives to dismissal are properly looked into, such as the availability of other jobs.
• Criteria for selection for redundancy are fair and objective and are not dependent on the opinions of individuals
.….
4.1 Prior to nominating any staff for redundancy, it is recommended that Governors should seek to achieve reductions in staffing in a number of ways:-
• natural wastage
• terminating contracts of temporary staff who have not acquired statutory employment protection rights
• voluntary reduction in hours
• redeployment to another post
• voluntary early retirement/voluntary severance
……..
7.2 Individual Consultation
Employees need to be warned that there is a possibility that they may be redundant. The timing of individual consultation will depend on the circumstances but it should begin at an early stage, generally when redundancies are at the proposal stage. This is because the purpose of consultation is to warn the employee of the possibility of redundancy at the earliest opportunity and provide the employee with an opportunity to discuss the proposals with their employer and to make suggestions as to how the redundancy can be avoided.
……
8. THE PROCESS FOR IDENTIFYING STAFF AS REDUNDANT
8.1 The steps required in identifying staff as surplus to requirement are as follows:
(a) Once the Staffing Sub-Committee is established to deal with the matter, formal consultations must be started with Trade Unions and Professional Associations.
(b) The Staffing Sub-Committee discusses proposed reorganisation/reductions in staff with representatives, they should identify posts not individual names. The Committee may need to respond in writing to representations made by the representatives before proceeding to preliminary identification of staff. A trawl for volunteers can also be carried out at this stage. Estimates for entitlements under the early retirement/voluntary severance scheme can be obtained by contacting Lambeth Education Human Resources.
(c) The preliminary identification of staff should be carried out in a sensitive and sympathetic manner and should be discussed with the individual. This should be followed up with the individual through the provision of written confirmation of the reasons for their identification. (section 8.3)
(d) The Staffing Sub-Committee hears oral representations from individuals and their representatives. (section 8.4)
(e) If the Staffing Sub-Committee decide to pursue staff reductions formal identification should be in writing. (section 8.5)
N.B. The Staffing Sub-Committee will need to hold 3 separate meetings-for the steps outlined in a, b, and c above.
(f) Individuals then have the right to appeal to the Appeal Committee of the Governing Body. (section 8.7)
(g) The LEA is informed of the decision of the Appeal Committee.
(h) Where the decision is to dismiss staff, arrangements are made to issue notice of termination of employment.(section 9)
……
8.3.1 Following consultation with the representatives, the Head teacher and the Staffing Sub-Committee may still feel that staffing adjustments are necessary. If this is the case they will need to carry out a preliminary identification process.
……
8.7.4 Governors are advised to have available at any appeal hearing:
• A budget summary
• The staff structure (shadow)
• The rationale for identifying the post/person as surplus to the needs of the school
• A copy of the letter to representatives (Section 188 letter) and any appendices to that letter.
They should ensure that they have sufficient information to properly consider the case.
- In relation to this procedure, Mr Brown's substantial complaint was that once the head master had prepared his proposed restructuring, the issue should have been referred to a staffing sub-committee who would then be responsible for considering the plans and discussing matters with staff and, if necessary, the unions. He submitted that the first time that such a committee could be identified in this process was the oral representations committee that sat at the end of October which included Miss Barnes, then chair of governors, even though she had been instrumental in the earlier decision to proceed with the restructuring.
- Mr Green submitted that, in effect, the de facto staffing sub-committee consisted of chair of governors and the head teacher which was completely contrary to the advice of the Managing Workforce document, both as regards the involvement of the head teacher and the number of governors involved. He submitted that there was no evidence that the governors, as opposed to the head teacher in conjunction with the chair of governors, had sought to consider alternatives to compulsory redundancies, as suggested in paragraph 4.1 nor considered an assimilation exercise in relation to the Appellant.
- Mr Green then referred us to the Education (School Government) (England) Regulations 1999 whereby pursuant to Regulation 42(2)(a)
"The following functions of the governing body of a school shall be delegated to a committee, to be known as the staff dismissal committee, in accordance with regulation 47-
(i) at a community, voluntary controlled or community special school, the initial determination under paragraph 25 of Schedule 16 to the 1998 Act that any person employed by the local education authority to work at the school should cease to work there;
Further, regulation 47 deals with the constitution of that committee as follows:
"Staff dismissal committee and dismissal appeal committee 47. –
(1) Subject to paragraph (6), the staff dismissal committee referred to in regulation 42(2)(a) shall include not less than three members of the governing body.
(2) The dismissal appeal committee referred to in regulation 42(2)(b) shall include no fewer members of the governing body than the staff dismissal committee the decision of which is subject to appeal.
(3) Where a dismissal appeal committee is considering an appeal against a decision of the staff dismissal committee, no member of the staff dismissal committee whose decision is subject to appeal shall take part in the proceedings of the dismissal appeal committee.
(4) The head teacher of the school shall not be a member of the staff dismissal committee or the dismissal appeal committee.
(5) No member of the staff dismissal committee or the dismissal appeal committee who is not a member of the governing body shall be entitled to vote in any proceedings of the committee in question.
(6) Where it is not reasonably practicable for the staff dismissal committee and the dismissal appeal committee each to include three members of the governing body, the staff dismissal committee shall include two members of the governing body".
Mr Brown submitted that although the oral representation committee which met on 28 October could, in effect, be designated the staff dismissal committee, he contended that the decision to dismiss had effectively already been taken by the head and chair of governors by the end of September. He argued that whilst the letter of 26 September referred to a potential redundancy, it also referred to the creation of the new posts and, indeed, the advertising of the new position of deputy head which was to occur the following week and he therefore contended that an initial determination had already been made by the end of September that the Appellant should cease to work there, this determination being made other than by a staff dismissal committee. Again, he argued that the Tribunal failed to consider the impact of this breach in relation to both the decision as regards redundancy and the overall fairness of the procedure.
- The third aspect of unfairness in relation to procedure related to paragraph 25 of Schedule 16 in the Schools Standards and Framework Act 1998 which provides that
"25. - (1) The Secretary of State shall appoint for England such number of persons to act as adjudicators for the purposes of this Act as he considers appropriate.
(2) Any matter which by virtue of this Act is required to be referred to "the adjudicator" shall be referred to such person appointed under this section as may be determined in accordance with regulations under Schedule 5.
(3) Accordingly in this Act "the adjudicator", in relation to any such matter, means the person mentioned in subsection (2).
(4) Schedule 5 has effect in relation to adjudicators".
Mr Brown argued that by virtue of this paragraph, the dismissal letter from the local authority should not have been sent out until after the appeal hearing had taken place. This has a further aspect of unfairness which the Tribunal failed to consider.
- In support of his submissions, Mr Brown referred us to a decision of the EAT, Raja v Governing Body of Jack Hunt School & Another EAT/1502/00 where Lindsay J, President, giving the judgment of the Court dealt at paragraph 29 with the issue of a failure to observer paragraphs 25 to 29 of Schedule 16 of the 1998 Act. He said this:
"29. Drawing these authorities together so far as they assist on the particular question before us, where the employee cannot be blamed for the departure from the contractual procedure, we would summarise the law as follows.
(i) An employer can be expected to adhere to the appeals procedure which is to be found in the procedural code contractually subsisting between him and his employee;
(ii) It will generally be a breach of contract for him to fail to do so;
(iii) But it is not every contractual breach of such a kind that results in the dismissal being unfair;
(iv) It is not for an Employment Tribunal to consider the hypothetical question of whether the employer would have come to the same conclusion if he had honoured or performed the correct contractual appeal procedure;
(v) It is, though, open to a tribunal to consider whether the employer, had he reflected upon the matter, would fairly and reasonably have concluded that it would have been quite futile to implement (in the detail whose absence is complained of) the contractual appeal provisions;
(vi) Absent a conclusion as in (v) the question is always whether the employee has by reason of the contractual breach been denied the opportunity of demonstrating that the reason for his dismissal truly harboured by the employer was not a reason sufficient to justify his dismissal;
(vii) If, on appeal to the Employment Appeal Tribunal, the Employment Appeal Tribunal duly holds that the sole answer that could properly have been arrived at by the Employment Tribunal to question (vi), if only the Employment Tribunal had properly directed itself on the matter, would have been negative, then and only then is it open to the Employment Appeal Tribunal to substitute its own view;
(viii) But, in other cases where the Tribunal has failed to consider or answer question (vi), the correct course is for the Employment Appeal Tribunal to remit the matter to the Employment Tribunal for that question to be answered".
Mr Brown submitted that the same approach should be adopted as regards any breach of the managing change document. Whilst not strictly a contractual document, the local authority clearly attached a great deal of importance to it and he reminded us that the Appellant was sent a copy on two occasions during the appeal procedure, the first one being as an enclosure to the letter of 25 September 2002.
- Mr Brown then dealt with the two further issues concerning the appeal, namely the Tribunal's failure to make proper findings regarding the issue as to whether or not savings would actually be achieved by the restructuring and the failure to have any meaningful consultation during September 2002. He submitted that although the Respondents had put forward their financial difficulties as the basis for the restructuring, at no stage had the governors had any detailed consideration of those figures and the savings that were supposed to be achieved by the restructuring and this information was also not considered by the Tribunal, although it had been raised in the hearing by Ms Watson who represented the Appellant and was dealt with in detail in her submissions. Further, she had stated that there was no effective consultation in relation to the proposals which she contended had been set in stone by 5 September. In any event, there was no decision making event between the beginning of term and the letters at the end of September which were clear notifications to the relevant staff of their selection for redundancy. The only reference in the Tribunal's Decision was said to be a reference to Mr Beeby not attending one consultation meeting with the school during September, although there was evidence before the Tribunal that the NUT representative at that meeting had expressed concern over global financial amounts wanting to discuss them with schools, colleagues and complaining that he had not received a copy of the proposals. Mr Brown also contrasted the Tribunal's findings in paragraph 51 that both the Appellant and Miss Ali had made the decision not to accept the alternative post or to apply for the position of deputy head and being fully apprised of all the relevant circumstances. Yet at paragraph 43, they found that Miss Ali did not apply for the post of deputy head because she had formed the view that Mr Tunstall did not want her to be part of the staff team.
- Finally, on the issue of race discrimination, Mr Brown complains in relation to the Tribunal's very brief conclusions on this aspect of the case and, in particular, to deal with the inferences that could have been drawn from the underlying unfairness of the procedure that we have outlined above. In addition, there was the fact that three out of the five teachers who were to be made redundant within this process were black. The Tribunal failed to deal at all with the inferences that could have been drawn from that fact in accordance with the guidance set out in Anya v University of Oxford & Another [2001] IRLR 377.
- By way of response, Mr Harrison firstly reminded us that our duty was not to "nitpick our way through the Tribunal's decision" but make sure that the Tribunal reasons had told the parties in broad terms why they had won or lost – see Donaldson LJ Ucatt v Brain [1981] ICR 542. He submitted that before the Tribunal the case on behalf of the Appellant in respect of unfair dismissal was that it was not genuine; it was influenced by race; there were no consultations and there were no hearings to challenge the decision and the Tribunal's decision had rejected those arguments and given details for their decision. He argued that the case now being advanced in the appeal was not that advanced before the Tribunal, but he reminded us that the background to the head teacher's restructuring was a combination of both financial troubles and the need for radical senior management changes in the light of the fact that the school had not improved since the last OFSTED inspection and a further one was due within a matter of a few weeks. He submitted that the basis of the restructuring decision, namely the need to have a non-teaching deputy head was a reasonable decision and effectively, was not challenged by the Appellant within the hearing. The union had been provided with some financial details and was aware of the salary scales and had had the opportunity during September 2002 to make recommendations to the school as regards the proposed alterations.
- Dealing with the particular complaints in respect of breach of statutory and advisory procedure, and dealing first with the alleged breach of Schedule 16 of the 1998 Act relating to the giving of notice prior to the appeal hearing being concluded, Mr Harrison submitted that although a potential breach of the provisions had occurred, this was cured by the eventual dismissal and had no bearing on the reasonableness of the decision to dismiss, he submitted that Lambeth's letter of 30 October had been sent, "without prejudice to the outcome of the appeal" and had been a response to the second appellant's acceptance of the enhanced voluntary severance terms on 29 October. He further submitted that the Appellant had not acted to her detriment in relation to that provisional notice since she had pursued and, indeed, had the merits of her appeal considered prior to the receiving the subsequent and unconditional letter of dismissal on 31 December. We agree with this submission that taken by itself, we cannot see any element of unfairness in this breach of procedure, although it does indicate to us a somewhat cavalier attitude on the part of the Respondents to the correct procedure, as further evidenced by comments that we will make below in relation to the failure to follow the managing change procedure.
- As regards the failure to establish a staff dismissing committee and the further allegation that the dismissal was effectively carried out by the head teacher and chair of the governors in breach of regulations 42 and 47 of 1999 Regulations, Mr Harrison submitted that this alleged breach was never part of the Appellant's case before the Tribunal. We cannot totally agree with that submission. If one looks at the Appellant's closing submissions before the Tribunal, there is a section dealing with dismissal wherein Ms Watson referred to sections of the Schools Standards and Framework Act 1998. We have already referred to section 25 but she also referred in those submissions to section 27 whereby the governing body have to make arrangements for giving any person in respect of whom they propose to make a determination of dismissal an opportunity of making representations and the requirement under section 29 that the local education authority shall not dismiss a person employed by them to work solely at the school except as provided by paragraph 25. Although the regulations are not specifically referred to, it seems to us that they are really no more than the flesh on the bones of the statutory provisions in the 1998 Act.
- It does seem to us that a staff dismissal committee was eventually set up and, indeed, is the same sub-committee that is referred to as the staffing sub-committee in the Managing Workforce Change document. The requirement in both documents for an initial representations hearing followed by a further right of appeal makes this clear. It seems to us, however, that the substantial complaint that is made in relation to the provisions and the procedure is that the sub-committee, whether it be termed the staffing sub-committee or the dismissal sub-committee was not set up earlier and that decisions were made and actions taken in relation to consultation by the head master in conjunction with the chair of governors that should more properly have been dealt with by a sub-committee of three governors and that it could be argued that the local authority's letter of 29 September should only have been written after the relevant sub-committee had determined that it should be sent.
- Mr Harrison argued that the managing workforce change procedure was only an advisory document but, as already been pointed out, it was a document that was sent to the Appellant on several occasions by the Second Respondent. It seems to us that she was entitled to assume that, as a matter of fairness, that it was a document that the local authority were going to follow. In any event, the requirement to set up a dismissal committee is statutory.
- In his submissions before the Tribunal, Mr Harrison had argued that there was no reason in principle why the head teacher and chair of governors could not fulfil (a), (b) and (c) of the procedure recommended at paragraph 8 of the Managing Workforce Change Procedure, provided that the process was carried out fairly. There is, however, the requirement in the earlier paragraph 1.5 to suggest that the head teacher should not be a member of that committee but could be called upon to advise. We reject his submission on this point.
- Overall, it does seem to us quite clear that the Tribunal in considering redundancy and/or fairness should have made findings in relation to the potential breach of statute, statutory regulations and advisory procedure in relation to the actions of the school during September 2002 which appear to us to have been carried out potentially by the wrong people. That contention, it seems to us, also impacts on the remaining grounds of appeal in relation to the absence of financial information and alleged lack of consultation. Again, the issue to us seems to be whether the correct people, namely the governors, considered the correct information during September 2002. We do, however, agree with Mr Harrison that on the face of the Tribunal's findings, the reason for the restructuring appeared to be as much even or more to do with management than financial reasons. At the end of the day, the Tribunal may have concluded that even if there had been a breach of procedure, it made no difference to the final outcome but it is, in our view, a matter that they should have at least considered.
- On the issue of race discrimination, the events of September 2002 again impact on this aspect of the case and it seems to us that the alleged defects in procedure matters that the Tribunal should have considered in relation to whether inferences could be drawn coupled with their failure to deal with the particular allegation in relation to the number of black people which were dismissed. We are not satisfied that the Tribunal's somewhat brief reasons dealt adequately with these issues.
- The only issue remains as to whether or not this matter should be returned to the same Tribunal for further consideration. Normally, we would have sent it back to the same Tribunal but Mr Green reminds us that at an earlier stage of the appeal, there were allegations of bias made against the chairman. In those circumstances, we think it more appropriate that a fresh Tribunal consider these issues.
