United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms Vina Shukla (Of Counsel) Messrs Graham Clayton Solicitors 7/9 Chequer Road Doncaster DN1 2AA


 


JUDGE WILSON:

1. This has been the preliminary hearing of the proposed appeal by Mrs Fawcett, against her selection for dismissal by reason of redundancy by the Respondent governing body and education authority.
2. She has been represented today by Ms Shukla, from whom we have had the advantage of an amended skeleton argument, which has been very helpful to us.
3. In oral amplification of her argument, Ms Shukla complains that there were errors of law by the Tribunal in finding that the selection, and therefore the dismissal, was fair. Although the agreed procedure did not explicitly require a skills audit as part of the process by which candidates can be identified for selection, the Tribunal should have found the need for such a skills audit. So the first error, says Ms Shukla, was that the Tribunal failed to consider whether there had been a skills audit.
4. The second error she says, is that the procedure itself was not properly followed, because the Headmaster identified for himself the criterion of experience of teaching as one of the criteria upon which selection should be made. On those two errors of law Ms Shukla submits that the Tribunal fell into fatal error, and that the appeal should be allowed to go forward for argument.
5. It is quite clear from the detailed judgement by the Employment Tribunal, that they were not particularly happy with the procedure which had been followed in this case. They said in terms in Paragraph 3.

"However, the Tribunal has to accept that, because of the statutory provisions, there are serious restrictions on the activities that can be expected of the employer, ie, the local education authority, in cases such as this, one of which the Tribunal has some concern about. That is a matter of alternative employment situations. Where in a case such as that before this Tribunal there is a redundancy selection but the local education authority itself cannot impose on any other school within its area the employment of somebody, such as the applicant, who is to be made redundant as alternative employment, but can only recommend such a person for the relevant vacancy".

6. In Paragraph 4, the Tribunal went on to say:-.

"The second matter that the Tribunal would wish to mention is the fact that until the early part of 1998 (and this was of some relevance in this case) there was agreed in the Humberside area and inherited from Humberside County Council, who had been the former education authority prior to its demise on 31 March 1996, a compulsory redeployment procedure. That procedure would have been expected to have applied in similar circumstances to those which became prevalent in this case and which are referred to briefly in the findings of fact hereafter, but because of a challenge that had been made to that procedure through one of the teaching Trade Unions by way of challenging its application through Hull City Council (one of the other unitary authorities similar to that of the second respondents), that procedure had been abandoned".

7. They conclude that the matter will no doubt need re-negotiating in the very near future. In paragraph 5 they say:-

"Certainly the statutory effect and the abandoning of the compulsory redeployment procedure causes restrictions to occur in the environment in which these particular circumstances set themselves which a Tribunal would not expect to have found in the commercial or industrial world".

8. Having expressed those misgivings however, the Employment Tribunal very properly directed itself that it had to work with what it had got. And they came to the conclusion, at the end of the facts which had been found proved, that the criteria for selection, under the compulsory redeployment procedure, was different to that which had to be applied under the redundancy procedure, and that it did result in a different selection in each of the cases.
9. They went on to point out that everybody was agreed that the procedure, whatever its shortcomings, was the one to be followed and it fell upon the headmaster to make nominations. They went on to decide to consider how he came to those conclusions.
10. In paragraph 7 the Tribunal said that it was satisfied that both the governing body and the local education authority had satisfied all the procedural requirements imposed upon them. They deal specifically with the points raised by Ms Shukla:-

"there was an argument that no skills audit was carried out, a matter that was in substantial dispute between the parties".

11. The Tribunal having again considered the relevant procedures found that the criteria do not demand such a skills audit whether or not one occurred or otherwise. The criteria require only a curricular analysis and that is precisely what is found to have happened here.
12. In Paragraph 9 the Tribunal say:-

"the Tribunal finds as a fact that the reason for dismissal was redundancy and that is a fair reason. In considering the provisions of Section 98(4) of the Employment Rights Act 1996, whilst the Tribunal ordinarily would have looked at the whole of the guidelines set out in the case of Williams V Compare Maxam Ltd [1982] IRLR 83 as referred to earlier, the specific and particular circumstances that are applicable in education authority situations satisfy the Tribunal in this case that the authority and the Board of Governors by way of delegation, have satisfied the requirements of themselves, albeit that the Tribunal has concerns that those requirements are not as wide as would normally be expected in a similar commercial or industrial area.

The Tribunal therefore has to be satisfied in these circumstances that the dismissal of the applicant by way of selection for redundancy was not unfair. Therefore the applicant's claim must fail".

13. Despite Ms Shukla's eloquence, we can find no mistake of law to fault the reasoning of the Tribunal and accordingly this appeal should be dismissed at this stage, because it has no prospect of success on full argument.