COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE PETER CLARK
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE PITCHFORD
|- and -
|NEATH PORT TALBOT COUNTY BOROUGH COUNCIL
Mr Jonathan Walters (instructed by Legal and Democratic Services, Neath Port Talbot County Borough Council) for the Respondent
Hearing dates : 26 November 2010
Crown Copyright ©
Lord Justice Elias :
"Any teacher who is appointed to work under a contract of employment at a school to which this section applies is to be employed by the local education authority."
It is common ground that the section does apply to the Infants School which is a maintained school falling within section 35(1)(d). Schedule 1 to the Act confers wide powers on a governing body but paragraph 7(3) expressly denies the school power to enter into contracts of employment.
"In their application to a Governing body having the right to a delegated budget, the enactments set out in the Schedule have effect as if
(a) any reference to an employer (however expressed) included a reference to the Governing body acting in the exercise of its employment powers and as if that Governing body had at all material times been such an employer;
(b) in relation to the exercise of the Governing body's employment powers, employment by the authority at a school were employment by the Governing body of the school,
(c) references to employees were references to employees at the school in question;
(d) references to dismissal by an employer included references to dismissal by the authority following notification of a determination by a Governing body under reg. 17(1) of the 2006 Regs."
The enactments set out include the unfair dismissal provisions of the Employment Rights Act 1996 and the Sex Discrimination Act 1975.
"In this Order references to employment powers are references to the powers of appointment, suspension, conduct and discipline, capability and dismissal of staff conferred by the 2006 Regulations."
Article 4 then deals specifically with dismissals:
"Without prejudice to the generality of article 3, where an employee employed at a school having a delegated budget is dismissed by the LEA following notification of such a determination as is mentioned in article 3(1)(d)
(b) Part X of the 1996 Act [unfair dismissal] has effect in relation to the dismissal as if the Governing body had dismissed [the teacher] and the reason or principal reason for which the Governing body did so had been the reason or principal reason for which it made its determination."
Accordingly, whilst the LEA formally dismisses, it does so at the instigation of the governing body which is deemed to be the employer, and the reason why the governing body has instigated the dismissal is treated as the reason for dismissal.
"(1) Without prejudice to articles 3 and 4, and despite any provision in the Employment Tribunals Act 1996 and any regulations made under section 1(1) of that Act, this article applies in respect of any application to an employment tribunal, and any proceedings pursuant to such an application, in relation to which by virtue of article 3 or 4 a governing body is to be treated as if it were an employer (however expressed).
(2) The application must be made, and the proceedings ` must be carried on, against that governing body.
(3) Despite paragraph (2), any decision, declaration, order, recommendation or award made in the course of such proceedings except in so far as it requires reinstatement or re-engagement has effect as if made against the authority
(4) Where any application is made against a governing body under paragraph (2)-
(a) the governing body must notify the authority within 14 days of receiving notification; and
(b) the authority, on written application to the employment tribunal, is entitled to be made an additional party to the proceedings and to take part in the proceedings accordingly. "
"(1) where the governing body determines that any person employed or engaged by the LEA to work at the school should cease to work there, it must notify the authority in writing of its determination and the reasons for it.
(2) If the [teacher] is employed or engaged by the LEA to work solely at the school the LEA must, before the end of the period of 14 days beginning with the date on which the notification under para (1) is given
(a) give her such notice terminating her contract with the LEA as is required under that contract.
(b) terminate that contract without notice if the circumstances as such which is entitled to do so by reason of his or her conduct.
(3) If the person concerned is not employed or engaged by the authority to work solely at the school, the authority must require him or her to cease work at the school with immediate effect."
"The local education authority must not dismiss a person employed by it to work solely at the school except as provided by paragraphs (1) and (2)."
Accordingly, the LEA must dismiss a teacher employed to work solely at a school if the governing body makes a determination to that effect and notifies it that the teacher employed to work at the school should cease to work there; and conversely, it has no power to dismiss without any such determination being made.
The claim before the Employment Tribunal.
The hearing before the Employment Appeal Tribunal.
" There is, to my mind, considerable force in the textual arguments advanced by Mr Bean QC on behalf of the appellants in support of the submission that the mandatory provisions of art 6(2) of the 1999 Order do not apply to all applications to the employment tribunal; that they are expressly confined to those applications arising out of the governing body's exercise of 'employment powers'; and that alleged constructive dismissal does not arise out of the governing body's exercise of 'employment powers', as characterised in arts 2(2) and 3(1) of the 1999 Order.
 The difficulty with Mr Bean QC's submission is that it produces a procedural situation which does not make sense and is very unlikely to have been the intended effect of the 1999 Order. The evident purpose of the restriction on joinder of respondents in art 6(2) is to avoid, where possible, an unnecessary duplication of parties and to achieve a saving of costs and time of bodies engaged in the discharge of public functions. There is no discernible reason for treating a complaint for constructive dismissal presented to the employment tribunal under s 95(1)(c) of the 1996 Act in a procedurally different way from a complaint of ordinary dismissal under s 95(1)(a) or (b). Indeed, as pointed out by my Lords, Mr Bean QC's construction leads to a paradoxical situation in which, on a complaint of constructive dismissal, the Employment Tribunal would have to decide the substantive question whether there was in fact and in law a constructive dismissal of the applicant before it could rule on the procedural question whether the LEA could be made a party to the Employment Tribunal proceedings against its will.
 In my judgment, a broad, purposive approach to the construction of the procedural provisions in art 6 of the 1999 Order is appropriate. Such an approach leads to the conclusion that, in accordance with the mandatory terms of art 6(2), the application by Mrs Green in the Employment Tribunal for constructive unfair dismissal should be made and carried against the governing body and not against the appellants. By virtue of art 3, the governing body are treated as if they were her employer acting in the exercise of their employment powers. Although the references to 'employment powers' in art 2(2) and the statutory provisions mentioned there, notably Sch 16, do not expressly cover the case of constructive dismissal, it is, in my view, implicit in the scheme of the Order and related legislative provisions, read as a whole and with regard to the procedural context and objective, that the governing body are the proper respondent to all Employment Tribunal applications arising out of the dismissal of staff, whether the result of: (a) invoking the procedure for the exercise of an express power of dismissal terminating a contract of employment; or (b) other actions by a governing body in relation to the treatment of staff in the community school, which could lead to the termination of a contract of employment and to alleged unfair dismissal. No sensible purpose would be served by introducing the complication of distinguishing between two types of dismissal in the procedural context of joinder of parties to Employment Tribunal applications."
The grounds of appeal.
The 1996 Education Act (as amended) places a requirement on Governing Bodies operating under Schemes of Delegation to inform the Local Education Authority of staff who the Governing Body have decided shall cease to work there, for whatever reason, including redundancy. The Local Education Authority is required to bring to an end the employment of the member of staff concerned unless a suitable alternative vacancy is found.
" it is plain that the statutory scheme does not give the LEA the power simply to redeploy somebody, but they must have their employment terminated. Whether, thereafter, alternative employment is offered under a new contract, would be a matter for the LEA."
" the old governing body had the right to recommend the dismissal of persons working solely at the Clifton First or Middle School and their recommendations had to be complied with by the council. Because of the cesser of maintenance it was inevitable that the old governing body would have to recommend the dismissal of their teaching staff, and the council had to give effect to their recommendations. The new governing body are a body distinct from the governing bodies of Clifton First or Middle Schools. It was for them, or more accurately for the temporary governing body of Clifton Primary School at the relevant time, to make recommendations for the employment of staff at their school. They had no function whatsoever in relation to the dismissal of staff of the first or middle schools. By reason of the Order of 1989 it is plain that, in determining whether the dismissal of Mr. Askew was fair or unfair for the purposes of section 57 of the Act of 1978, one looks at what the old governing body did and for what reason. It is equally plain that Mr. Askew was dismissed for redundancy or for some other substantial reason (viz. the reorganisation with its statutory consequences) justifying the dismissal." (emphasis added.)
Lord Justice Pitchford:
(1) the appellant was employed by the LEA but the governing body enjoyed "employment powers" (Art 2 2006 Order);
(2) for the purposes of the Employment Rights Act 1996 and the Sex Discrimination Act 1975, "employer" includes the governing body acting in exercise of its employment powers (Art 3(1)(a) 2006 Order);
(3) when the governing body exercised its employment powers the governing body is to be treated as the employer for the purposes of the 1996 and 1975 Acts (Art 3(1)(b) 2006 Order);
(4) for the purposes of the Employment Rights Act 1996, a dismissal by the LEA following notification by the governing body of its determination under regulation 17(1) of the 2006 regulations is to be treated as dismissal by an employer (Art 3(1)d) 2006 Order);
(5) a dismissal by the LEA following a regulation 17 notification (as at (4) above) shall, for the purposes of Part X of the 1996 Act, be deemed to have been a dismissal by the governing body for the reasons stated in the determination notified to the LEA under regulation 17 (Art 4(b) 2006 Order);
(6) whenever, for the purposes of the 1996 Act, the governing body is to be treated as the employer, the governing body shall be respondent to an application to the Employment Tribunal and, save for an order for re-instatement or re-engagement, an order made by the Tribunal shall take effect as if it was made against the LEA (Art 6(1), (2) 2006 Order).
Lord Justice Carnwath:
"To be made redundant is to be dismissed, but despite the intervention of my Union, the clear requirements are the contractual redundancy procedure and of law, there was no consultation about my redundancy, no dismissal hearing, no appeal, and, in fact, no opportunity whatsoever to make representations to the governing body who had staffing duties in respect to me in those three months. Likewise the contractual "managing change in partnership" policy was not followed in any material way. My employer was not proactive at all in trying to avoid my redundancy"
On 30 April her dismissal took effect because no other work had been found, and she has been out of work since. That claim was made on 9 July 2009.