United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A WOLANSKI (of Counsel) Instructed by: Anna Barlow Solicitor Acton Law Shop 102 High Street Acton London W3 6QX


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Ms McMullen wishes to make against a decision of an Industrial Tribunal held at London (North) following a two day hearing. That decision was reduced to writing and sent to the parties on 23rd January 1998.

Ms McMullen had brought complaint of unfair dismissal against her former employers, Hayes Manor School, which is a comprehensive school. She had been a member of the teaching staff of the School as from 1st September 1992 until the effective date of termination of her employment on 30th April 1997. She had a pastoral role to play in addition to her teaching responsibilities and was one of seven 'heads of year'. She was head of the 10th Year.

There was a re-organisation within the School. As a result of which instead of having seven heads of year, they were to have four heads of School carrying out pastoral roles: head of Lower School, head of Middle School, head of Upper School and head of Sixth Form. The arrangement that was arrived at was that the seven teachers who were heads of year, should have the opportunity to apply for one of the four positions of Head of School. The applicant was unsuccessful and following that lack of success she was informed on 19th July 1996 that "the governors had decided that there was no job for her from December of that year".

On 23rd July 1996 she received a letter advising her that she had the right to make representations "concerning the redundancy to the governors". She sought to make those representations which eventually came before the relevant people on 21st January 1997. The Industrial Tribunal noted in relation to that meeting that by the time it had been convened:

"... which the Respondents held out as purporting to be a decision whether or not to terminate the Applicant's employment, firstly the date which the Applicant had been notified as being the date of her employment would terminate on 31 December 1996 has passed; secondly she had effectively been removed from the teaching environment from the end of the summer term of 1996; and thirdly she had been put in a position which was effectively a fait accompli and which had removed her completely from the teaching environment - a redundancy situation yet the Respondents were still maintaining that a decision to terminate her employment on the grounds of redundancy had not yet been made. The Tribunal was at a loss to understand how the Respondents maintained that a decision of the governors could be other than to confirm that situation which had in effect been put into practice by way of the redundancy, which by the admissions made on behalf of the Applicant clearly had been accepted as existing in summer of 1996."

The Industrial Tribunal concluded that redundancy was the reason for the termination of the applicant's employment in the Summer of 1996; and that it had been decided upon and was effective from the Summer of 1996; and that there had not taken place any consultation with regard to alternative employment, particularly in the English Department, and then the tribunal went on to say:

"... although the Tribunal are satisfied that such consultation which should have taken place immediately after the decision on 17 July 1996, when the Applicant had not obtained one of the Heads of School posts, would have made no difference, as the Applicant was still concentrating on the drama position and in any event, on the evidence from the Tribunal, which the Tribunal, which the Tribunal accepts, it would have made no difference as there was no full and proper vacancy, although no consideration was given to it but in consultation with the Applicant."

On this appeal the applicant/appellant would wish to argue that the decision of the Industrial Tribunal that the decision to dismiss was not unfair was perverse.

Firstly, this is perversity appeal which does not require the provision of the Notes of Evidence. It is advanced on the basis of the tribunal's own findings of fact.

Without indicating either way as to prospects of success on that point, we regard it as arguable as a point which should be argued in full.

Secondly, it is said that the Industrial Tribunal mis-applied or misconstrued the principle established by the House of Lords in Polkey v A E Dayton Services Ltd [1987] IRLR 503 in that it asked itself whether the procedural shortcomings which it identified would have affected the outcome, and as they would not, the dismissal was not unfair. Reference is made to the Polkey decision and in particular to the paragraph in that decision cited from Lord Bridge's speech:

"If an employer has failed to take the appropriate procedural steps in any particular case, the one question the industrial tribunal in not permitted to ask in applying the test of reasonableness ... is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of [s. 98(4)] this question is simply irrelevant."

Again, we think that point is arguable and again we would wish to make no further comments about it at this time.

It follows, therefore, that the appeal will be concerned with both those two issues. It is a matter, obviously, of importance to the parties. It should be listed as a Category B case for ¾ of a day.