Case No: A2/2010/1181/EATRF
Neutral Citation Number: [2011] EWCA Civ 92
IN THE HIGH COURT OF JUSTICE 
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE PETER CLARK
UKEAT/0083/10
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/02/2011
Before :

LORD JUSTICE CARNWATH
LORD JUSTICE ELIAS
and
LORD JUSTICE PITCHFORD
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Between :

	JONES	Appellant	
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	NEATH PORT TALBOT COUNTY BOROUGH COUNCIL	Respondent	

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Mr Patrick Green (instructed by the Direct Public Access Scheme) for the Appellant
Mr Jonathan Walters (instructed by Legal and Democratic Services, Neath Port Talbot County Borough Council) for the Respondent

Hearing dates : 26 November 2010
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Judgment
Lord Justice Elias : 
1.	The appellant, formerly a deputy head teacher at the Abergwynfi Infants School, wanted the right to bring proceedings against the respondent local education authority (the LEA) for a claim of unfair dismissal before the Employment Tribunal. 

2.	Initially, the LEA contended that it could not in law be liable and that the party to be sued was, for the purposes of this claim, the governing body of the school.   That governing body ceased to exist when the school was closed down and the LEA now concedes that it is potentially liable as successor to the liabilities of the governing body and has properly been named as the respondent in the action. 

3.	The appellant wishes to establish that on the facts of this case the LEA is not, or not only, indirectly liable by virtue of having taken over the liabilities of the governing body for any wrongdoing of that body,  but is also potentially directly liable in its own right for its own wrongful actions. 
The legislation. 
4.	Before considering the way in which the issue has come before the court, I will set out the relevant legislative material.  In a nutshell, the purpose of this legislation is to ensure that where the governing body of a school has a delegated budget, it can exercise certain employment functions affecting the staff at the school, including the teaching staff.  The local education authority then has to give effect to those decisions. 
5.	Section 35(2) of the Education Act provides: 
“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. 
6.	However, notwithstanding this inability, for certain purposes the employer is deemed to be the governing body of the particular school where the teacher works.  This is achieved by provisions in the Education (Modification of Enactments Relating to Employment) (Wales) Order 2006 (“the 2006 Order.”).
7.	Article 3(1) is, so far as is material, as follows; 
“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.
8.	Article 3 therefore treats the governing body as the employer wherever it is acting in the exercise of its employment powers.  These are defined by Article 2(2) as follows: 
“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.
9.	Article 6 deals with procedural issues before Employment Tribunals.  It carries through the logic of the earlier provisions and provides that the governing body and not the LEA should be the respondent to any employment tribunal claims wherever it is deemed to be the employer: 
“(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. ”
10.	As Article 6(4) makes clear, even where the governing body is the proper respondent, the LEA is entitled to take part in the proceedings. Furthermore, whether it takes part or not, any remedy, save for reinstatement and reengagement, takes effect as if made against the LEA. 
11.	The Staffing of Maintained Schools (Wales) Regulations 2006 are also material. These apply, inter alia, to the infant school.  Regulation 17, entitled ‘Dismissal of staff’, provides: 
“(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.”
12.	Certain paragraphs then provide for a dismissal and appeal procedures. Paragraph 17 provides (save for certain exceptional cases set out in paragraph 18 which are not applicable here) that: 
“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 facts.
13.	These can be shortly stated.  As I have said, the appellant was employed as deputy head teacher of the Abergwynfi Infants School. It was a small school with three classes and the claimant was a classroom teacher, as well as being deputy head. There was a separate junior school with similar staffing levels. In 2005 it was proposed to build a new primary school to replace both infant and junior schools. The effect was that staff would cease to be employed at either of the two schools, although staff would be available for obtaining posts in the new school.  Following consultations the proposal was adopted and the new school was to open with the commencement of the summer term in April 2009.

14.	Teaching staff, other than head teachers and their deputies, automatically transferred to the new school, but in the case of head and deputy head teachers, the relevant staffing regulations require that the position must be publicly advertised and that both internal and external candidates should be considered. 

15.	The claimant was not successful in obtaining the post of deputy head. In a letter dated 19 January 2009 she had been notified by the LEA that if she was unsuccessful in her application for the post then she would be dismissed by reason of redundancy on 19 April 2009 when the school ceased to exist. Following a meeting with the unions there was a further letter dated 23 March 2009 which confirmed that the claimant would be dismissed by reason of redundancy, although the notice period was extended until 30 April 2009.

The claim before the Employment Tribunal.
16.	The claimant brought proceedings for unfair dismissal against both the Governing body and the LEA.  The case was brought against the latter for two reasons.  First, by the date of dismissal the Governing body no longer existed and it was submitted that the dismissal had to be treated as if it were by the LEA.  Second, the appellant was claiming that the LEA dismissed without having been notified by the governing body that it should do so, and it was contended that if that were right then the governing body would be exercising no employment powers at all, the modifications effected by the 2006 Order would be inapplicable, and the LEA would be the appropriate body to sue.  
 
17.	Both the governing body and the LEA brought applications before the Employment Tribunal to strike out the claim against them.  The LEA contended that the 2006 Order applied and that therefore any liability lay with the governing body alone, and the governing body contended that it could not be liable as it had ceased to exist.
18.	The employment judge refused to strike out either claim.  The judge accepted that if the LEA had dismissed without notification from the governing body, it was at least arguable that the 2006 Order did not apply on the basis that there was no exercise of employment powers by the governing body, and the LEA could then be directly liable for the dismissal. Therefore it should remain in the frame. He also held that the claim against the governing body should remain principally because at that stage all parties thought that if it were not liable, that might mean that there was no one against whom the claim could be brought.  Understandably, the judge was reluctant to accept that logic and concluded that it should remain a party also.
The hearing before the Employment Appeal Tribunal.
19.	Both respondents appealed to the EAT (HH Judge Peter Clark).  Mr Green, counsel for the appellant, accepted at that stage that the governing body could not be a party to the proceedings since it no longer existed. However, by then Mr Green, who did not appear before the Employment Tribunal, had discovered the existence of  paragraph 7 to Schedule 22 of the School Standards and Framework Act 1988 which transfers all rights and liabilities of a governing body which ceases to exist to the LEA (unless they are transferred to another governing body, which was not the case here).  Once this was drawn to its attention, the LEA agreed that it was properly named as a party in the proceedings.  
20.	HH Judge Peter Clark understandably assumed that the appeal could now be dealt with by consent with the LEA accepting that it was properly named as respondent.   This was not acceptable to the appellant.  She contended that there was a potentially relevant distinction between the LEA’s indirect liability resulting from the transfer of liabilities and the direct liability that would arise if the LEA was the relevant employer for the purposes of her claim.  

21.	The judge considered the merits of this submission and concluded that the employment judge was wrong to find that the LEA could be named as a respondent in its own right, and that but for its dissolution, the governing body alone would have been the proper party to the proceedings.  The LEA was respondent only because it had taken over the liabilities of the governing body. He considered that the issue before him had been effectively determined against the appellant by the decision of the Court of Appeal in Kent County Council v Green [2004] EWCA Civ 11, [2004] ELR 75, which concerned the equivalent modification regulations applicable in England.

22.	In Green the appellant was claiming that she had been constructively unfairly dismissed.  In other words she was alleging that she had been entitled to leave her employment as a result of a repudiatory breach of contract by the governing body, and that this constituted a dismissal in law which was unfair. It was submitted that it could not be said that the governing body was exercising its employment powers under Article 3 because it had no power to break the contract in the manner alleged. Hence it was said that the modifications to the usual rules were inapplicable and that the LEA was liable and was the proper respondent.  

23.	The EAT accepted this submission but it was overturned by the Court of Appeal.  Although the court saw some merit in the argument that the language of the Article favoured the appellant’s contention, all three members of the court (Pill, Mummery and May LJJ) were satisfied that considerations of policy dictated that the modification regulations took effect.  
24.	Mummery LJ expressed himself as follows (paras 37-39):
“[37] 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.
[38] 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.
[39] 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.”
25.	HH Judge Clark thought that this principle applied equally here.  The governing body was liable for all dismissals, whether carried out in accordance with the Staffing Regulation 17 or not. The judge observed that “when notice of termination was given, the governing body was the claimant’s deemed employer under Article 3(1) (a) of the 2006 Regulations”.  He expressed the view that if the governing body failed to comply with its obligations under regulation 17 of the Staffing Regulations, that might render the dismissal unfair. 
 	 
The grounds of appeal.
26.	There is something highly artificial about this appeal. It is now agreed that the LEA is the appropriate respondent and is the only body properly before the Employment Tribunal.  As the argument developed before us, it became clear that the appellant was concerned that she would be prejudiced in two ways in particular if she cannot name the LEA in the proceedings as a party liable in its own right.  The first repeats the argument advanced below before the EAT.  It was contended that on the assumption that the LEA had dismissed the appellant without any notification from the governing body that it should do so, the LEA alone should be liable for the dismissal.  The Governing body might have a defence.

27.	Mr Green accepts that as a matter of public law the dismissal by the LEA is a nullity since as Regulation17(11) makes clear, the LEA has no power to dismiss (very exceptional cases apart) save where it has been notified by the governing body of its decision that the employee should no longer work at the school.  However, whatever its legality, if the notice is acted upon it is nonetheless in law an effective dismissal which can be the subject of an unfair dismissal challenge: see the decision of the EAT in Pinnington v The Governing body of Ysgol Crug Glas School EAT/1500/00. 

28.	Counsel submits that on the assumption that the LEA had chosen to terminate the contract in these circumstances, Article 3 is inapplicable. The governing body is not then exercising any of its employment powers and it is the LEA who should take the consequences and be directly liable for any unfair dismissal. Green does not determine this case, as the EAT held, since that was a case where the governing body had been responsible for the situation giving rise to the dismissal.  If, however, the LEA had dismissed without any involvement of the governing body at all, there is no basis for deeming the governing body to be the employer. 

29.	The second area of concern focuses not on the act of dismissal itself but rather on the conduct of the LEA in connection with the dismissal, and in particular its obligation to take reasonable steps to find alternative employment for a dismissed teacher. We were shown a document headed “Redundancy/Redeployment Policy for all School Based Staff” which gives guidance to schools about how they should approach redundancy cases.  It states in the first paragraph: 
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.         
30.	It will apparently be contended that the LEA, in breach of established procedures, did not take proper or appropriate steps to find alternative employment for this appellant in another school. Furthermore, the appellant may wish to allege that this failure involved sex discrimination.  Again, the relevant factual findings to sustain these arguments have yet to be established. 
31.	Mr Green contends that this failure may be relevant to the unfair dismissal claim. Classically, in an unfair dismissal claim where redundancy is relied upon as the fair reason for dismissal, a failure to take reasonable steps to find alternative employment with the same employer or an associated employer is a factor capable of causing the dismissal to be unfair: see Vokes v Bear [1974] ICR 1.  However, his concern is that it might be said not to be unfair for the governing body to fail to apply this redeployment policy since it is not in a position to implement it; it cannot look for alternative employment outside the school itself.   Mr Green submits that this is precisely why the LEA needs to be joined in the proceedings, so that its failings can be considered as part of the overall analysis of fairness.  If it were otherwise, the redeployment policy would carry no effective clout.
Discussion.
32.	The issue has come before the court in a wholly unsatisfactory way.  There have been no findings of fact at all, and therefore we are being asked to answer questions in a highly abstracted manner. There is a real question whether the appeal is premature.  However, we were told that the issues raised before us are of wider practical significance, and I think that we can provide answers to certain issues of principle on the assumption that the appellant is able to sustain the factual premise of her case. 
33.	The submission of Mr Green is that Article 3 merely provides that in the legislation listed in schedule 1 the list of employers shall include the governing body.  It is not stating that the governing body should be deemed the only employer for all purposes with respect to these statutory provisions.  If the claim advanced by an employee arises in circumstances where the governing body has not in fact exercised its employment powers, the LEA is the appropriate party to the proceedings. In an appropriate case this may be in addition to the governing body.  In principle, there is no objection to there being two respondents before the court.  Indeed Article 6(4) confers on the LEA the right to be represented wherever the governing body is the deemed employer.  Where the LEA has sought to exercise powers in a manner which usurps the powers of the governing body, or if it is exercising employment powers not available to the governing body, then it should be directly liable in its own right and must therefore be a party to the proceedings.
34.	Mr Walters submits that the EAT was correct to hold that even if the LEA was not notified of the dismissal by the governing body, and indeed even if the governing body made no determination that the teacher should be removed from the school, still the governing body is the appropriate respondent. The situation is analogous to the circumstances in the Kent County Council case, as HH Judge Peter Clarke properly appreciated. The act of dismissal fell within the powers of the governing body not the LEA, and Article 6 then requires that the governing body alone should be in the frame. 

35.	I accept that there may be cases where the LEA is exercising employment powers not conferred on the governing body, and in those circumstances it could not be said that the latter is exercising its employment powers.  The LEA would then be the proper respondent. This is made clear in the decision of the Court of Appeal in Murphy v Slough Borough Council [2005] EWCA Civ 122; [2005] ICR 721 per Keene LJ at paras 20-22.  But I do not accept that this is the situation on the assumed facts here.  The governing body alone has the power of dismissal, albeit that it is effected by the LEA. In my judgment, it alone is liable for any dismissal.

36.	In my view, the EAT was right to find that the appropriate respondent was the governing body, even on the assumption that it did not make any determination that the teacher should be removed from the school. I accept that Green is not directly analogous, since in that case it was the conduct of the governing body which brought about the (constructive) dismissal, even if the dismissal itself did not directly result from the exercise of its powers to require the teacher to be removed from the school.  But in my view, it is wrong to say that the governing body bears no responsibility for the dismissal, even on the assumed facts.  It is the inaction of the governing body which is a cause of the dismissal. 

37.	The governing body itself has the power to determine whether a teacher should be allowed to remain at the school.  If it permits the LEA to effect a dismissal of one of its teachers without any determination by it, and thereafter acts on the assumption that the dismissal is effective, in my view it has adopted the act of dismissal as its own.  It could not use the LEA as a shield in any unfair dismissal claim.  In these circumstances I do not consider that it would be appropriate to join the LEA against its will, although that might well be the kind of case where the LEA would want to exercise its privilege to be joined as a respondent.

  38.	Moreover, if the appellant were right, it would give rise to two of the disadvantages identified by Mummery LJ in Green.  First, it would duplicate the parties before the tribunal and add to the costs and time of litigation; and second, it would create the paradoxical situation that the Employment Tribunal would have to determine the facts before it could decide the procedural question of who was the proper respondent. 

39.	Mr Green was concerned that unless the LEA was a party before the Employment Tribunal, the appellant would be prejudiced because there would be no way in which its conduct could be under scrutiny.  I do not accept that this is so.  The governing body would have to show that the dismissal was fair and that they had acted reasonably in all the circumstances.  They could not do that simply by hiding behind the skirts of the LEA.  They could not in my view escape liability by asserting that it was not their decision since it ought to have been, and they could have prevented the dismissal being effective.   Moreover, it would weaken the remedies available to an employee if the governing body were not to be held responsible for the dismissal and the LEA was the only respondent in the frame, because an order of reinstatement and re-engagement can only be made against the governing body. 

40.	I turn to the second area of concern, namely that unless the LEA is joined as a party, its failures with regard to seeking alternative employment cannot be considered by a tribunal in an unfair dismissal claim. This was not a matter raised below and therefore was not considered by the EAT. 

41.	In my judgment, there is a short answer to the submission, which is that advanced by Mr Walters on behalf of the LEA.  The effect of the regulations is that the deemed employer is the governing body and only the actions of that body are under consideration when considering the fairness of a dismissal.  The exercise of any independent powers or functions conferred on, or accepted by, the LEA alone cannot have any bearing on the fairness question.

42.	If the governing body notifies the LEA that the teacher should be removed from the school, the LEA has no option but to do so (save in a situation where the teacher is employed generally by the LEA and not merely to work in one school, which is not this case.)  The effect of the appellant’s submission would be that the LEA would have to delay giving effect to the decision of the governing body until it had completed the investigation into alternative employment.  That might - and in most circumstances probably would - put it in breach of its statutory obligation to dismiss within fourteen days of the notification.  Moreover, even if another job were found, that could not prevent the teacher being dismissed from employment with the first school since that is what the statute requires.

 43.	In short, however inadequately or unfairly the LEA deals with the question of alternative employment at other schools, it cannot be material to the fairness of the dismissal by the governing body, and even if another job is found, that cannot relieve the LEA of the duty to dismiss.

44.	It follows that, in my judgment, the observation in the Staff redundancy/redeployment policy to the effect that the LEA must dismiss unless it finds alternative employment is incorrect in law. At least we have not been referred to any statutory provision which would justify that conclusion, and it is at odds with the obligation imposed on the LEA under the Staff Regulations to dismiss a teacher if the governing body requires it.	

45.	I am reinforced in these conclusions by two decisions dealing with similar problems.   In Pinnington, to which I have made reference, the EAT reached the same conclusion that the LEA cannot avoid dismissal even if alternative employment is obtained.  In that case the LEA had acted on the assumption that if it redeployed a teacher that would avoid terminating the contract of employment.  His Honour Judge Wilkie QC, as he then was, observed that the statutory scheme did not give the LEA this option: 
“…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.”  

46.	This is subject to the qualification that for schools with delegated budgets it would in any event be for the governing bodies of those schools to decide whether or not to offer staff a post; it is not in the gift of the LEA to do so.

47.	Further, the need to focus on the actions of the governing body alone when considering the fairness of a dismissal is supported by certain observations of Peter Gibson LJ (with whose judgment on this point Ward and Chadwick LJJ agreed) in Clifton Middle School v Askew [2000] ICR 286 at 295.  That case was concerned with almost identically drafted English legislation.  In a factual context almost identical to this where two schools ceased and were replaced by a third school, he said: 
	“… 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.)
48.	The focus, therefore, is on the actions of the old governing body; it is not on the independent failings, if any, of the LEA.  This is so notwithstanding that it was the policy of the LEA which made it inevitable, to use Peter Gibson LJ’s words, that the governing body would have to recommend dismissal.

49.	It follows that, in my judgment, there is no purpose in naming the LEA as a respondent to the unfair dismissal claim on the basis that it has failed properly to assist an employee to secure alternative employment. Any LEA failing cannot of itself have any bearing on the fairness of the dismissal, which is deemed to have been carried out by the governing body. That is not to say that the failure to assist a redundant teacher to obtain alternative employment in another school is necessarily irrelevant to the fairness of the dismissal.  It may be that the on the facts of a particular case a governing body might not be acting reasonably in all the circumstances if it fails to assist a teacher to obtain employment in another school, by analogy with the Vokes case. This was the view of the EAT (HH Judge McMullen presiding) in Northamptonshire County Council v Gilkes UKEAT/0579/05.  We heard no argument on that particular point and I prefer to express no opinion about it.  But even if that approach is correct, it is the action or inaction of the governing body alone which is the focus of attention.

50. 	I accept that it may be thought that this is not altogether a satisfactory state of affairs, but it seems to me that it is what Parliament has sought to achieve by treating schools with a delegated budget as single employers distinct from the LEA where they are exercising employment functions conferred upon them.

51.	However, where the LEA is exercising powers that do not fall within the employment powers exercisable by the governing body, there is no reason at all why they should not be liable for their exercise in the normal way. This will include cases of alleged sex discrimination provided the acts in question fall within the scope of the Sex Discrimination legislation.

Conclusions.
52.	In my judgment, the appeal fails. The EAT was right to conclude that in principle the governing body alone should be named as respondent in the unfair dismissal claim even on the assumption that the LEA dismissed without any determination by the governing body, or without being notified of that determination.  The only reason that the LEA was properly the respondent in this case was to stand in the shoes of the governing body.

53.	Furthermore, even if the LEA has failed to carry out properly its own redeployment policy, that would not be a factor which could render unfair the determination of the governing body, and the LEA is obliged to dismiss once it is notified of that determination. Accordingly, it would not be appropriate to add the LEA as a respondent to an unfair dismissal claim in order to seek to rely upon this failure as a factor capable of rendering an otherwise fair dismissal unfair. In order to determine the fairness of the dismissal, it is necessary to focus solely on what the governing body did, not what the LEA did or did not do, and whilst the governing body continues in existence, it alone should be the named respondent. 

54.	However, I have read the judgments of Pitchford and Carnwath LJJ in draft, and they consider that it is inappropriate at this stage, and without findings of fact having been made, to conclude that the LEA cannot be directly liable. It follows that the appeal succeeds.

Lord Justice Pitchford:

55.	I am grateful to Elias LJ for his analysis of the facts and the legislation which I gratefully adopt. However, I disagree as to the appropriate disposal of this appeal and shall endeavour to explain the reasons for my disagreement.

56.	At paragraphs 4 to 12 of his judgment Elias LJ has explained that:
(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).

57.	We are invited to assume for present purposes that as a matter of fact (i) the governing body gave no notification to the LEA under regulation 17 of The Staffing and Maintained Schools (Wales) Regulations 2006, but (ii) the LEA dismissed the appellant. This being the case it seems to me arguable that the notice of dismissal will not be deemed to have been given by the governing body under Art 3 or Art 4 of the 2006 Order. If the notice of dismissal is not deemed to have been given by the governing body then there is no prohibition (under Art 6) against the LEA being made respondent in its capacity as employer in an application to the Employment Tribunal, as the ET found in the present case. I do not consider that the court in Kent County Council v Green [2004] EWCA Civ 11, [2004] ELR 75, dealt with this problem; nor do I think that the court’s decision forecloses the appellant’s current argument. Mrs Green was alleging constructive dismissal. There was, if I may say so, every reason to treat the governing body, under Art 6, as the employer/respondent for that purpose: the governing body was responsible for Mrs Green’s working conditions. However the court was not considering who should be made respondent when an LEA had purported to dismiss, there had been no invocation of the statutory power of dismissal and there had, in this regard, been no exercise by the governing body of its statutory employment powers.

58.	The taint of nullity is not, as Elias LJ has pointed out at paragraph 27 of his judgment, a bar to an application to the Employment Tribunal.

59.	Elias LJ has concluded, at paragraph 37 of his judgment, that the act of dismissal was the act of the governing body since it could have prevented the effect of the notice of dismissal and, on the contrary, acted on the assumption that the dismissal was effective. In these circumstances my Lord would hold that the governing body adopted the dismissal as its own. I cannot agree that these conclusions are open to the court in the absence of relevant evidence. I entirely associate with my Lord’s frustration at the absence of evidence and the present need to consider these arguments in an “abstracted manner”. We have not been invited to make any factual assumptions about the role of the governing body in this dismissal and it is my view that the court should resist the temptation to do so. These are matters for resolution upon the evidence. I do not accept that permitting the appellant to join the LEA in both its personal and vicarious capacities will risk the mischief feared by the court in Kent County Council. Constructive dismissal is commonplace; these facts are exceptional; there would remain only one respondent; the LEA will, in any event, have to stand in the shoes of the governing body since the governing body has been abolished.

60.	I accept that Elias LJ has identified formidable obstacles in the way of the appellant before she could succeed in her argument that the LEA owed a separate duty to re-deploy her, but in this respect also I do not think that it would be right to anticipate the evidence and argument to be presented to the Tribunal.

61.	With great respect to Elias LJ’s contrary view, I would allow the appeal and restore the order of the Employment Tribunal as it related to joinder of the respondent.

Lord Justice Carnwath:

62. 	I share my Lord’s concern at the unsatisfactory way to which this case comes before us.  Like Pitchford LJ and in respectful disagreement with Elias LJ, I do not think we can or should seek to resolve the technical issues which are said to arise under the Regulations in the abstract. 

63.	The Claimant’s case as originally formulated was relatively simple.  She claimed that she had been given no information about how the closure of the school would affect her; that “John Burge of HR”, to whom she had been advised to speak, told her that she could apply for the amalgamated school’s Deputy Headship but might not get it; that if she decided not to apply she would be “slotted across like the other teachers into a class room post”, or she could “take redundancy and go on the supply list”.  That was in October 2008.  

64.	The Deputy Head post was advertised in November and she applied. The next she heard was in January when she was told that she would be given her redundancy notice at a meeting on the 20 January.  The letter she was given, which she says was “the only I received on the matter from start to finish”, told her that her post would end on 19 April 2008, (later amended to 30 April).  She was interviewed two days later for the Deputy Headship but was not successful.  No alternatives were put to her as to what might happen in that event.  She concluded:
“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.  
 65.	As I understand it, there is no dispute that the decision which initiated the closure of her school was made by the Council as Local Education Authority, “Mr Burge of HR” was an LEA employee, and the letter dismissing her was written by the LEA.  It seems regrettable in those circumstances that the Authority should have sought to avoid any responsibility at all, by the specious argument that sole responsibility lay with the governing body which by then had ceased to exist.  It would have been a strange omission from the legislation if no provision had been made for liabilities of the governing body to be transferred following its demise.  

66	Faced with some very technical arguments, the Employment Judge took the pragmatic view that the claim should proceed against both Respondents. Both Respondents appealed to the EAT but by the time it reached that Tribunal in March 2010, the existence of the relevant transfer regulation had come to light, and it had become clear that the LEA was properly named in the proceedings, if only as having inherited any liabilities of the governing body. 

67. 	It is unfortunate that at that stage the parties did not accept HH Judge Peter Clark’s invitation to agree a Consent Order, so that the matter could go back to the Tribunal to investigate the facts.  That apparently was not acceptable to either party, for reasons I do not fully understand. One of the hallmarks of the Tribunal system is supposed to be its accessibility and freedom from legal technicality.  In the present case the key consideration should surely have been the merit or otherwise of the Claimant’s case that she had been unfairly dismissed.  Whatever the precise effect of the regulations, the substance of the matter was that the Local Education Authority was responsible (perfectly properly) for the school closure which led to her dismissal.  One might have expected the authority to be confident enough of their position to wish to defend the case on the merits, and, if the process were to be shown to have been legally unfair, to accept responsibility for the consequences.  

68.	If it were abundantly clear from the Regulations that any direct liability of the Authority was excluded, I agree that there would be advantage in us saying so without more ado.  However, with respect to Elias LJ’s careful analysis, I am not in that position.  The tenor of the Regulations is to provide that the governing body is to be “treated as if it were an employer” for the purposes of the Employment Tribunals Act (see e.g. art 6 (1) of the 2006 Order referred to by Elias LJ at para 8) but not necessarily to exclude concurrent liability of the Authority itself.  Reliance is placed on regulation 17 of the 2006 regulations, which requires the governing body, not the Authority, to determine when a  person should cease to work at their school. It is unclear to me, however, how that is to apply in circumstances where dismissal follows necessarily from a closure decision made by the Authority. As a matter of practicality, it is not surprising that in this case the dismissal letter came from the Authority. I would need some persuasion that it was acting unlawfully in sending it. The high point of the Authority’s argument appears to be regulation 17 (11), which provides that “it must not dismiss” a person employed at the school, except as provided by the earlier parts of that regulation, which involve a decision by the Governing Body. However, it seems wholly unrealistic to fix the Governing Body with notional responsibility by its own inaction, in circumstances where there was nothing in practice that it could do. 

69.	Experience shows that it is dangerous to decide difficult points of construction in the abstract, particularly where they appear to lead to an illogical result.  I acknowledge that in this case much time and money has been expended in reaching this level, and that on the view it has been wasted.  We are told that the legal issue is one of some general importance.  That makes me even more reluctant to decide it without a full understanding of its practical implications in a concrete set of facts.

70.	For these reasons I agree with Pitchford LJ that the Employment Tribunal’s Order should be restored so that the proceedings will continue against the governing body in the name of the Education Authority and against the Education Authority directly.  It will be for the Tribunal to determine whether there is in principle any liability to the Claimant arising from the actions or inaction of either body, and if so (if it matters) against which of them an Order should be made.