United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 686_93_3101

Appeal No. EAT/686/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 31st January 1994

Before

HIS HONOUR JUDGE D M LEVY QC

MISS A MACKIE OBE

MR R TODD

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(1) STAFFORDSHIRE COUNTY COUNCIL

(2) GOVERNORS OF ST JOHN FISHER SCHOOL          APPELLANTS

MR L V RAJU          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR D WRIGHT

Solicitor

County Clerk

Staffordshire County Council

PO Box 11

County Buildings

Martin Street

Stafford

ST16 2LH

For the Respondent MR D BEAN

(Of Counsel)

Messrs Park & Co

10 Howard Place

Shelton

Stoke on Trent

ST1 4NQ


 


JUDGE D M LEVY QC: This case follows the receipt of a delegated budget by the Governors of the St John Fisher School, Newcastle, Staffs, in particular by the headmaster of that school ("the School") under the Education Reform Act 1988 (`the Act') and consequently the need being seen to reduce the staff by the Governors of the School and the sad need to make a number of teachers redundant.

As in another case, which was referred to here and below, namely the case of Cooke & Others v. Governors of Horsell High School & Surrey County Council Education Authority (33637/90/LS/A) there was the need to examine the procedures used by schools when redundancy provisions had to be invoked and, as in that earlier case, the Industrial Tribunal found that the procedures used by the Appellants was sadly deficient. In the course of this judgment I shall be returning to the decision in Cooke.

Mr Wright, who did not appear below, appears for both Appellants and has prepared a helpful skeletal argument which includes at page 15 a chronology setting out the material facts. The Respondent to this appeal, Mr Raju, was employed from 1976 as a mathematics teacher at the School which is a voluntary aided, a secondary school. The fact that it was a voluntary aided school which had some private aid became more significant to the parties after the decision had been reached for reasons to which I will come.

In January 1992, the School received a delegated budget under the Act. The budget related to a financial year beginning on the 1st April. It became apparent to the headmaster, Mr Voiels, that the budget for the financial year would be such that a reduction in the number of teachers employed at the School would be necessary. Mr Voiels explained the position to staff at a staff meeting the same month. A notice under Section 99 of the Employment Protection Act 1975 was sent to the Trade Unions and some comments were received but the decision was made, by the headmaster and the governing body that the teaching staff establishment had to be reduced by three posts.

The Code of Practice on Staffing Reductions is set out in Circular 2/91 a 1991 version of an annual circular. A copy of this is at page 29-39 of our bundle. It commences with a note:

"This Code has been drawn by the LEA in consultation with the professional Associations representing teachers in Staffordshire schools. It is important that its contents are familiar to all Heads and Governors whether or not they anticipate having to reduce the teacher establishment during the 1991/92 school year."

It is common ground that Councils and Governors of Schools were not obliged to follow the procedure recommended in the Circular but almost all did so, or perhaps we should say, purported to do so, or tried to do so. It had been adopted by the Governors of the School. In accordance with the Circular, the Governors appointed a Selection Committee and an Appeal Panel. We shall be returning to the Circular later in this judgment.

The Selection Committee, which comprised of Mr Voiels and two other governors, met on 4th March 1992. The teachers at the school were mainly grouped in organised departments dealing with subjects or groups of subjects. Many teachers also had non-departmental responsibilities. The Committee decided to make reductions by removing one post from the English department, one from the mathematics department and one from the design and technology department. They went on to select within each department the teacher who they thought should be made redundant. Within the mathematics department there were five teachers and the one selected was Mr Raju. The next relevant facts can be found neatly set out in the Appellant's skeleton argument:

"2.7 The three teachers selected for redundancy were not present at the meeting of the Committee. Under the procedure this selection was provisional and the teachers were entitled to appeal against it.

2.8 Mr Raju was notified of the decision of the Selection Committee and did appeal against it by a letter dated the 20th March 1992. . ."

Pausing there it is necessary to look at the procedure of the Code of Practice to show what was meant to be done at this stage. This is contained in Selection Procedure 7(1):

"7.1 The Governor should appoint a committee (`the Selection Committee'). . .

7.2 Generally the Selection Committee should draw up a revised list of posts and the grades attached and assign staff to these posts. Staff not assigned will be provisionally selected for displacement. In drawing up the establishment and assigning staff to it the committee will follow (a) any decisions already taken by the governors on changes in the curriculum, and (b) the principles set out in paragraphs 5.1 to 5.5 and in 6.1.

7.3 The Selection Committee will inform the staff of the decisions taken. Staff provisionally selected for displacement will be interviewed by either the Chairman of the Panel or the head teacher who will report back any representations made by them to the Selection Panel. . ."

The word that we note here in the practice is "will be interviewed". As is apparent both from the summary of the matter which is in the Appellants' skeleton argument, and in Mr Voiels' evidence, there was no interview whatsoever with Mr Raju. Paragraph 19 of the proof of evidence of Mr Voiels reads:

"The decision of the Committee to select Mr Raju provisionally for redundancy was communicated to him and his trade union representative on the same day with a promise that it would be put into writing. He asked for a written statement of reasons and suggested that the selection had been made on racial grounds. "

There is no suggestion whatsoever that there was any sort of interview when Mr Raju learned of his selection which if the procedure itself had been applied should have happened. This was a very important failure on the part of the Appellants. The Circular provided for Mr Raju to appeal from the Section Committee's decision to an appeal panel ("the Appeal Panel"). This he duly did.

The main argument advanced in his appeal was that the design and technology department should lose two teachers and the mathematics department none. This is set out in a letter from Mr Raju to the Appeal Panel dated 20th March 1992, where he writes:

". . . I set-out below my precise grounds as requested in paragraph 8.5 of the Circular.

i) There appears to be no over-staffing in the mathematics department which has only four periods fewer to service next year than this year.

ii) Vacancy seems to have been created by moving out a regular, full-time, trained, qualified, experienced mathematics teacher and replacing him with an assortment of teachers from a variety of sources, most of whom are not regular mathematics teachers. They may of course all have qualifications in and experience of mathematics with all its current syllabuses.

iii) The over-staffing seems to be in the design and technology department where one would suggest the appeals committee should look, rather than running the risk of leaving itself open to the not unreasonable accusation that is has selected not on the basis of curriculum but on the basis of alleged incompetence."

With that letter before them, the Appeal Panel which comprised five governors, including a teacher governor, met on the 6th April. The meeting was attended by Mr Raju and his trade union representative. Mr Voiels who put the case for the Selection Committee. The Appeals Panel were advised by the District Education Officer. After, as we understand a full hour's hearing, the Appeal Panel dismissed the appeal. Two days later notices of dismissal were served on Mr Raju. The notice expired on the 31st August 1992, although Mr Raju was given a temporary transfer to another school until the 15th September 1992 when his employment terminated.

Mr Raju lodged an Originating Application to the Industrial Tribunal on the 9th December 1992. The hearing before the Industrial Tribunal was on 21st June and 22nd June 1993. The decision was notified to the parties on 19th July 1993. The unanimous decision of the Tribunal was that:

"the applicant was unfairly dismissed. The respondents are ordered to pay the sum of £10,000 to the applicant."

We turn now to the grounds of appeal which are set out as 6 separate grounds in the Notice of Appeal:

"(a) The Industrial Tribunal erred in law in holding that the redundancy procedure adopted in the case was defective on the ground that

(i) on the true construction of the procedure document (the Circular) it conflicted with paragraph 8(8) of Schedule 3 to the Act, and

(ii) Schedule 3 applied to the school at which the Respondent was employed."

These are technical grounds on which the Tribunal erred, because the argument which was put before us was not put before the Tribunal below. It was based on the fact that the School was an "aided" school and therefore the Act was outside the scope of the procedure.

We accept that the Tribunal wrongly looked at the Act and we have permitted arguments on this basis but we feel that the fact that the Industrial Tribunal wrongly took the Act into account bears nowhere on the question in issue, having regard to what was required of them in common law and in that connection we cite with approval the decision in Cooke (supra) on what should be done when redundancy selection has to be made. Paragraph 72 of the transcript of the decision Cooke commences:

"The obligation to consult [a trade union] under Section 99 of the Act plainly falls on to the shoulders of the governing body."

Then we come to the passage, which in our view, all educational authorities faced with the decision of redundancy; could usefully have at the forefront of their mind. This suggests a course which the Respondents in the Cooke case as well as the Appellants here were found not to have followed, we emphasis the finding that the statutory protection afforded to teachers under the Act was found to be the minimum obligation of the governing body.

"The ordinary duties of the reasonable employer to consult not only with the unions but also with the employees potentially concerned also is the responsibility of the governing body. The precise timetable and procedures to be adopted must of course ultimately be the decision of each governing body in each particular school and may vary considerably. The additional statutory protection afforded to teachers under Education Reform Act 1988 Schedule 3 paragraph 8(7) to provide the opportunity for oral representations and the appeal are in our view the minimum obligation upon the governing body. We are very doubtful whether there could be many cases where it would be reasonable for the governing body simply to have one long meeting at which employees about whom virtually final decisions have been taken by the governors are asked in effect to give reasons why they should not be dismissed. In our view consultation on a less formal and/or confrontational adversarial basis should take place well before the formal meeting required by Schedule 3. Whilst it may not necessarily be the case it may well be that unions will be, first of all, concerned as to the overall figures before particular candidates are brought into the discussion. On the other hand it does not necessarily follow that the overall figure for reduction and the particular candidates are mutually exclusive questions since for example, a requirement to reduce by 5 staff may perhaps be achieved by the reduction of 3 full-time staff and 4 part-time staff and thus all questions may have to be considered concurrently.

73. Criteria Various criteria have been referred to both in evidence and in the documents before us. Some are set out in the management's guidance notes. Once the avenues of voluntary retirement and the avenue in effect to avoid the redundancy situation completely have been explored the nettle of compulsory redundancy must be firmly grasped by the governing body. As indicated above we think it will be a very rare case where a s election for redundancy can be based on a straightforward criterion such as `no teaching post available' or `curriculum needs'. A staffing sub-committee may well wish in consultation to draw up a much more comprehensive list of criteria from the following (not necessarily in any order of importance):- overall subject needs; special subject requirements (e/g/ to boost, say poor maths performance in a school); length of service; seniority within the school; academic qualification generally; particular subject expertise (e.g. recent specialist courses); capability to switch from subject to subject as demonstrated either by current actual teaching and/or qualification and/or past actual teaching; lack of qualifications in relevant subject areas; lack of qualification to teach to certain levels e.g. above/below certain age groups and/or to teach to particular exam standards; additional qualifications e.g. administration, sports, music, counselling. The foregoing criteria are for the most part likely to be factual matters capable of verification one way or the other and above all capable of being assessed by governors who may not necessarily have a detailed knowledge of the school curriculum. So far as head teachers are concerned we would think it sensible for heads of department to be involved in the process, invidious though it may be, and for comments, conclusions, recommendations from heads of department to be recorded and included in the process. If absolutely necessary it may be that a governing body will have to choose between teachers who are under many of objectively assessable criteria very closely matched. It may be that in that situation more controversial, qualitative judgments may have to be made. Criteria such as attendance, record, performance, exam results and appraisals may need to be considered. It is obviously desirable that where ever possible such assessments should be based on on-going material such as annual/termly appraisals rather than the situation of head teachers/heads of department being required to provide unwelcome appraisal comments at the last minute against a background of impending redundancies."

There follows a passage referring to the need to have consultation with the unions.

The reason we think that the procedures contained in the Act are less important here, is that the School should have carried out their redundancy exercise according to the guidelines given in the Cooke decision. That the School lamentably and unhappily failed to do. Accordingly so we think that although there was an error in considering the application of the Act nothing turned on it.

Ground (b) in the Notice of Appeal states:

"The Industrial Tribunal erred in law and/or reached a decision that no reasonable tribunal could have come to in holding that `an applicant's chances in an appeal should not be conditional on somebody else's misfortune'."

This is a reference to a passage in the Code and also to the way it was dealt with in the decision. The passage in the Code which is in issue here is at paragraph 8, with particular reference to 8.5 and 8.7. 8.5 reads:

"As an appeal could only be allowed if an alternative selection were made, it will be essential for all letters lodging appeals to set out the precise grounds. If any analysis of these grounds indicates to the headteacher that another teacher is vulnerable he will interview that teacher and having consulted with the Selection Panel will advise him/her that he/she has been provisionally selected for displacement, noting any representations made by him/her, and reporting them back to the Selection Panel. The teacher will be advised to contact their professional association and of their right to a hearing by the Appeal Panel. this information will be confirmed in writing."

8.7 reads:

"The Appeal Panel may not select anyone who was not identified under paragraph 8.5 as an alternative selection for displacement to those identified under the procedures set out in Section 7."

In other words what had to happen, according to the Appellants' argument is that before the Industrial Tribunal could say that it would be wrong for the School to have dismissed Mr Raju, the Appeal Panel would have had to say "well, who can we dismiss instead of Mr Raju" and thus the whole of his case would depend on the Appeal Panel fingering somebody else and coming to a decision that he should have been substituted. The argument was put to us but because of the letter which Mr Raju himself wrote. That, it was submitted, was not something which the Appeal Panel could have done in any event; they were bound to consider and consider only the matters which Mr Raju complained of in his letter.

We think that this mis-states the position completely. In so far as there had been no proper interview when Mr Raju was informed of his provisional selection for redundancy, what happened, on what was called the appeal, seems to us to be irrelevant. But, secondly, the suggestion that the Appeal Panel was limited to what was in the letter of Mr Raju seems to us to be misplaced in so far as the Appeal Panel were saying that the procedure in the Code said someone other than Mr Raju had to be named before the Appeal Panel could intercede we can well understand the criticisms which were made by the Industrial Tribunal. Paragraph 10 of their decision it reads:

"Further, we that paragraphs 8.5 and 8.7 fetter the right of appeal unconditionally given to members of staff by Act Schedule 3 Paragraph (8):"

That is a passage which is now accepted does not apply; there are better common law rights for the employee.

"Paragraphs 8.5 and 8.7 of 2/91 largely negate that statutory provision, since an appeal depends on the co-operation of the headmaster. The appeal panel cannot select anyone as an alternative to the member of staff who has been selected unless the headmaster has identified another member of staff as vulnerable, and the appeal cannot be allowed unless this alternative selection has been made. That seems to us, in the words of Mr Bean, Counsel for the applicant, to give the headmaster a veto over the appeal. If he considers there is no alternative candidate, then the appeal panel cannot make an alternative selection and cannot allow the appeal. Thus, an appeal cannot be considered on its individual merits: its success depends on whether an alternative selection has been made or not. We do not consider this procedure conforms with the Act's requirement or spirit, and in our view, it also offends against good industrial relations practice. An applicant's chances in an appeal should not be conditional on somebody else's misfortune. If it be the case that a member of staff was not properly selected for dismissal, the ball should be put firmly back in the selection committee's court to consider the matter afresh, as is provided for in procedures in other County Education Departments to the knowledge of the Chairman.

A consequence in this case is that it has been suggested that the applicant was at fault in not identifying another member of staff to be made redundant. That seems to us a wholly undesirable and unrealistic expectation, particularly in an organisation which is unionised. It is passing the buck from management to the employee. Management should accept the responsibility of identifying potentially redundant staff, after proper consultation."

We endorse that passage of the decision of the Tribunal; we think it is one that the Tribunal could well have reached and indeed should have reached in the circumstances. We think the point in the Notice of Appeal is misconceived.

Paragraph (c) of the Notice of Appeal reads as follows:

"The Industrial Tribunal erred in law and/or reached a decision that no reasonable tribunal could have come to in holding that a redundancy procedure agreed with the relevant trade unions was `unreasonable' having regard to the provisions of the 1988 Act or good industrial relations practice."

This is a reference to paragraph 12 of the Tribunal's decision which reads:

"We have borne in mind that this procedure was agreed on a consultation basis between the employers and trade union, but we consider these provisions to be unreasonable, and would recommend that they be reviewed in the light of specific provision in The Education Reform Act. . ."

We were referred in this connection to the decision of this Court in East Hertfordshire District Council v. Boyten [1977] IRLR 347 and particularly to the passage at page 349(7):

"We cannot find it possible to say, in a case of this character, at any rate, that an employer, in following such an agreed procedure, could be said to be acting unreasonably."

We have already referred to the Cooke decision as to how redundancy situations should be handled by employers. We feel that the East Hertfordshire case does nothing to displace that. What happened here was that there was no proper interview, and, at the appeal hearing itself, there was no proper opportunity for the employee to have reconsidered what happened below, in that the hearing below was completely inappropriate.

It is quite clear that the Tribunal took account of the Trade Union's involvement. They were entitled to, and in our view, did come to their own conclusion on that involvement.

The next ground of appeal is that:

"(d) The Industrial Tribunal erred in law and/or reached a decision that no reasonable tribunal could have come to

(i) in holding that the extent of the explanation given to the Respondent about the reason for his selection for redundancy constituted a breach of the procedure set out in Circular 2/91"

There was no interview and no explanation; Mr Raju was simply told of the decision. It seems to us that the decision of the Tribunal was most certainly reasonable. Secondly, it is suggested:

(ii) alternatively in failing to consider whether any breach of the procedure that there may have been was remedied by the appeal hearing."

and there is a reference to paragraph 13 of the Tribunal's decision.

As we have said, the hearing before the Appeal Panel was not one which followed an interview and it seems to us that what happened at that hearing, although there is little mention of this made in the decision appealed against, was not to the point. Was this man selected on proper grounds? Was he the right man to be selected? Nothing which went on before the Appeal Panel could have put the matter right. In this connection we were referred to Whitbread & Co. v. Mills plc [1988] IRLR 501; Calvin v. Carr [1980] AC 574 and to Clark v. Civil Aviation Authority [1991] IRLR 412 and the passage to which we were referred particularly was at page 416(25):

"Mr Cole submits first that there ought to have been further full investigation of this matter before the decision to dismiss was made and if there had been, the CAA would have found grounds which mitigated the situation and would not have reached the decision to dismiss. Of course, the Tribunal have indeed agreed with that criticism. They then looked to see whether the appeal had rectified that error. Mr Cole, having succeeded at that first stage of his argument, then submits the appeal could not have been found properly to amount to a rehearing within the Whitbread and Calvin principles.

That in our judgment is substantially a question of fact. This experienced Industrial Tribunal clearly had in mind the problems raised by the situation, and clearly had in mind that it needed to satisfy itself that no injustice had in the end been perpetrated on Mrs Clark and that there had been a proper and sufficient hearing and investigation, and that she had had every opportunity of presenting her case and making her points."

In the Clark v. Civil Aviation Authority [1991] IRLR 142, the review panel could put right what had gone wrong below. In this case there was no prospect of that happening. There was, in our view, no need for the Tribunal to consider, in any depth, what happened before the Appeal Panel, nothing in the appeal hearing making any difference to the decision.

The fifth ground of appeal, subparagraph (e) is:

"The Industrial Tribunal erred in law and/or reached a decision that no reasonable tribunal could have come to in holding that `no objective decision was made in this case'."

We hope we have made it plain in the foregoing what was already being said that "no objective decision" was indeed made. There were no objective criteria adopted or applied, so far as we can see, in the selection of Mr Raju. The headmaster's recommendation to the Panel was purely subjective. The Tribunal's reasoning and findings are set out in paragraphs 14 to 17 which we adopt and we also, as we have said already, adopt the guidance given in the Cooke. In our view there is nothing wrong either in law and certainly the decision is not perverse.

Paragraph (f) in the Notice of Appeal reads:

"The Industrial Tribunal erred in law and/or reached a decision that no reasonable tribunal could have come to in failing to consider the significance of the appeal hearing, particularly having regard to . . ."

Then the first ground referred to is the reference by Mr Raju to overstaffing in all departments. That fails wholly to look fully at the letter of Mr Raju and it further fails to take into account the procedure which any properly organised redundancy hearing would have taken into account, namely, what is set out in the passages from Cooke set out above.

Secondly:

"(ii) that the Tribunal's own findings that `the mathematical department was reasonably identified as an area in which money could be saved. . .', and that `one redundancy was needed in the maths department'"

That is entirely right but what that does not take into account of is there was no proper selection procedure carried out within the mathematics department.

Thirdly:

(iii) uncontested evidence that the Appeal Panel were assisted by a professional adviser from outside the School."

That they may have been but that does not mean to say that the procedure which they used was right, in our view it was sadly wrong.

Finally,

"(iv) the detailed consideration given by the Appeal Panel to other teachers who might have been selected for redundancy in lieu of the Respondent and their conclusion that `all of the 5 had other responsibilities and that the deletion of any one of their posts would create consequential difficulties elsewhere'."

Again, whatever the Appeals Panel did consider, they did not consider the selction of Mr Raju as against all the other teachers in his department. Neither in the interview nor on appeal was he given the opportunity to consider why he rather than any of the others should have been selected. There is therefore, we think, nothing in this point.

In the circumstances we are of the opinion that this appeal fails.

In the course of this judgment we have referred to paragraph 12 of the Code of Practice. We want to make it quite clear that the Code of Practice may contains a beginning of the steps which Councils and governors in the position of these Appellants may want to adopt, but what they really have to do is to pay close regard to the procedures set out in Cooke.

We think that the procedures suggested there are exemplary. If Councils and Governors faced with the need to make redundancies follow them fully, the chances of them being taken to an Industrial Tribunal will be greatly reduced.