United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR OLIVER HYAMS (of Counsel) Instructed By: Director of Finance & Corporate Services Neath Port Talbot County Borough Council Civic Centre Port Talbot SA13 1PJ
For the Respondent	MS JENNIE WATSON (Representative)


 


MR JUSTICE NELSON:

1. Mrs Cerys John was employed by the Respondents as a Special Needs teacher at Coedffranc Junior School with a morning contract and an afternoon contract. She had been employed by the Respondents or their predecessors from 1973 onwards, and had taught as a support or Special Needs teacher as well as in an infants school, and a primary school. She had also been a nursery teacher. She started her employment at Coedffranc Junior School in September 1989. The school has some 300 pupils and the governors of both the junior school and the infant school which is adjacent, numbered about 20.
2. The second Respondent is responsible for some 70 primary schools with about 20,000 pupils for which there was a budget of about £28M per year of which £1M was allocated to Special Needs education. In 1997/1998 59 children at Coedffranc Junior School attracted Special Needs funding. The system for allocating finance changed however in 1998/1999 with the consequence that only 18 children attracted such funding. This change in the allocation system resulted in a reduction of funding to the school of about £17,000 on the information presented to the governors but is described as a reduction of approximately £10,000 by the Tribunal. In addition the school roll for the next year had diminished by 18 which resulted in a claw back of some £11,000.
3. A special finance meeting of the governing body of the school met on the 23rd April 1998 to discuss the reduction in funding and reduced school roll. Later the same day a meeting of the governing body took place at which two possibilities were considered. Firstly redundancies and secondly taking the deficit out of the school reserves. The meeting resolved, on a vote, that the reserve was not to be touched and that a staffing panel should look at possible reductions in the teaching and non-teaching staff.
4. The staffing panel appointed at the conclusion of the governor's meeting on the 23rd April 1998 met on the 29th April 1998. The file note of that meeting shows that they considered the changes that had taken place since the 23rd April which consisted of the information that the school roll was going to be reduced further than had originally been thought with a consequent claw back the next year of £11,000 rather than £7,000 as previously estimated. Further cuts had been made to the budget estimate for 1998/99 which resulted in a lower deficit of £6,000. If this sum was taken from the reserves together with the £11,000 claw back, there would be £6,000 in the reserves which then stood at £23,000. The fact that one teacher, Mrs Gough, would not have her temporary contract renewed had already been taken into account. The panel agreed that in addition to Mrs Gough's departure, further cuts would have to be made.
5. The file note continues:-

"The school has had a drastic reduction in Special Needs funding, down by £17,000 (58 pupils to 18). Therefore, it was obvious where the cuts in staffing would be: Mrs Cerys John has two contracts. It was decided to make the afternoon contract redundant (12½ hours - temporary) saving £7,000?"

Savings were also to be made in respect of a classroom assistant and supervisory assistants.

6. It was considered whether the two teachers who had less than 2 years service should be the first to be considered for reduced hours but the head teacher, Miss Ball, who was present at the staff meeting said that she did not consider that Mrs John could fulfil the requirements of either of those posts as her experience and training had been nursery and support. Mr R F Lewis of the Education Authority was later asked to consider this question and his view was expressed in the last paragraph of the file note to the effect that the identification of the class teacher for redundancy would necessitate a re-organisation of the class structure and this, when taken into account with Miss Ball's opinion that Mrs John did not have the skill or experience to take either of their classes meant that those two teachers with less than 2 years service should not be the first to be identified. Mr R F Lewis is recorded as expressing the view that the drastic cut in Special Needs funding clearly showed where the redundancy should be.
7. On the 1st May 1998 a letter was sent to all staff warning of a reduction in the staffing levels because of a budget crisis and stating that the current thinking was that because Special Needs spending had been sharply reduced savings would have to be made in that area and perhaps supervision and classroom support. The letter, which stressed that no decision had yet been taken, invited any member of staff who had any queries or comments to make to meet Miss Ball in the first instance.
8. When it became clear on the 13th May 1998 that another member of staff, Miss Daffon, was to resign at the end of the term, the question arose as to whether the applicant could be appointed to her job or the school staff re-organised so as to avoid Mrs John being made redundant. This matter was discussed at the staffing panel meeting on the 18^th May 1998 immediately prior to the meeting with the Trade Unions. The head teacher, Miss Ball, expressed the opinion that Mrs John could not take over Miss Daffon's role because of her lack of experience in teaching a junior class or National Curriculum subjects, without considerable length of support and training which would be impossible for the school to undertake.
9. The Unions then joined the meeting. Mr Benjamin, the chairman, explained that the deficit in the budget for 1998/99 of £16,258 was caused mainly by the drastic drop in school needs funding and the fall in pupil numbers. The file note records that for this reason, the panel was of the opinion that there would have to be staffing cuts of Mrs Gough's contract, Mrs Cerys Johns afternoon contract, classroom support of 15 hours and a supervisory assistant. The staffing cuts which were put to the Unions at this meeting were the same as those which had been stated in the file note of the staffing panel meeting of the 29th April 1998.
10. Miss Ball stated in answer to questions from the Union that it was not possible to cut other areas of the budget as it had been cut back as far as possible. The staffing panel were asked whether Miss Daffon's resignation would remove the need for the redundancies but were told by Miss Ball that the Special Needs teacher who was likely to be made redundant was not able to match the requirements of the vacant job. She described the criteria for the job vacancy and Mrs John's skills and experience. She said that as Mrs John did not have experience of junior teaching it would not be possible to re-train her and that there was no-one in the school to fill the vacancy.
11. After the meeting with the Trade Unions the staffing panel "considered the discussion that had taken place" and "decided that Mrs John's temporary contract (afternoon) would be cut", that the classroom support of 15 hours would be cut, but that there would be no cut in supervisory assistant. There is no record of any further discussion on consideration of redeployment or whether the reserves should be drawn upon.
12. On the 20th May 1998 Mrs John was informed that her afternoon part time contract had come to an end by virtue of redundancy. Mrs John appealed against her dismissal for redundancy and that appeal was heard by the governing body on the 22nd June 1998 when they decided that the reserves should not be used and that the action taken by the staffing panel should be supported.
13. The redundancy scheme adopted by the Neath Port Talbot County Borough Council required that staff should be selected for redundancy from the curricula or operational area identified as requiring fewer staff. (1.1). It is stated that it is important that the governing body do not pre-empt the panel's decision in any way and that the panel must be free to resolve the situation by methods other than compulsory redundancy if possible. When they do decide on redundancy as a possible option, they are then responsible for consulting with staff and relevant Unions. (2)

The Tribunal's findings.

14. The application by Mrs John to the Cardiff Employment Tribunal complaining of unfair dismissal and unfair selection for redundancy was heard over some ten days between May and July 1999.
15. The Tribunal made the unanimous finding that the applicant had been unfairly dismissed. It concluded that the governors' decision to dismiss Mrs John by reason of redundancy was fatally flawed in that they had misinterpreted the Special Needs audit by finding that it indicated "a reduction in the level of identified need" whereas in fact it only identified a reduction in funding. Although the file note referred to a drastic reduction in Special Needs funding, the notice of appearance on behalf of the governors and the Education Authority referred to the cut in Special Educational Needs funding because of the diminished need and the submissions made on behalf of the governors and the Education Authority at the Tribunal hearing echoed that statement. Furthermore Mrs Preece said in evidence that the head teacher had led her to believe that standards in the school were improving and that hence the need for Special Needs teaching would be less. In fact as the Tribunal found, and Mr Hyams on behalf of the Appellants conceded, the children still had the same needs even if the funding was reduced, and that the governors may have confused funding and needs.
16. In this context the Tribunal made important findings of fact. It found that the governors relied heavily on Miss Ball's input and advice on the matter but that whilst Miss Ball did not deliberately mislead the governors her subconscious dislike of the Applicant led her to give misleading advice to the governors. The Tribunal found that Miss Ball's behaviour in 1998 was unusual because of her serious illness and because of the fact that Mrs John had supported another teacher, Mr Powis, who was facing disciplinary action and in respect of whom the media had called Miss Ball's own actions into question. The Tribunal found that Miss Ball's activities in July in "upgrading" children on the school's Special Needs register "strange and disturbing" and that her judgment and behaviour were unusual and unreliable in the Spring of that year. They concluded that she subconsciously denigrated the ability of the Applicant as a class teacher and exaggerated the extent to which Miss Daffon's replacement had to be highly qualified and, if replaced by someone like the Applicant, would involve considerable retraining. In relation to Miss Daffon the Tribunal concluded:-

"Miss Ball's state of mind as she approached the redundancy problem, has, in our view, considerably adversely affected her judgment including her ability objectively fairly and accurately to assess the Applicant's ability as a main stream teacher, when advising her fellow governors."

17. There are therefore findings by the Tribunal that the head teacher behaved in a strange and disturbing manner in relation to her upgrading of pupils on the Special Needs register and gave the governors misleading advice in relation to her opinion as to Mrs John's capability of carrying out Miss Daffon's duties.
18. The Tribunal also found that the governors had already decided on the 23rd April not to touch the reserves and hence determined a redundancy policy. It also found that the staffing panel had decided to dismiss Mrs John by reason of redundancy at their meeting of 29th April, and hence that no proper consultation took place when they met the Unions on the 18th May.
19. The Tribunal concluded that although it was a matter for the governors as to whether the reserves should be dipped into or not, no reasonable governors would have reached the decision not to dip into the reserves before consulting the Trade Unions.
20. It was not "obvious where the cuts in staffing would be" in view of the fact that there was a reduction in the school roll as well as a reduction in funding. Furthermore, the governors' acceptance of the incapacity of Mrs John to perform Miss Daffon's work, was based upon the advice of the head teacher which was not objectively given. If the governors and the Education Authority had behaved as reasonable employers would, and should, have behaved, the probability, the Tribunal found, is that the Applicant would have been retained as a full time teacher in one role or another.
21. It is submitted on behalf of the Appellants that the Tribunal have effectively usurped the commercial and economic decision made by the governors, generally misinterpreted the events which occurred and made perverse findings of fact. The Respondent submit that the Tribunal correctly decided the matter on the facts and that their decision is unimpeachable.

The Appellants grounds of appeal

22. The Appellants submits under ground 1 that by finding that the first Appellant decided to dismiss the Respondent because there was a diminution in the need for Special Needs teachers when in fact there was no substantial alteration in the number of children at the school who had Special Educational Needs but only a reduction in funding, the Tribunal were effectively substituting their own view for that of the governing body which they were not entitled to do. By analogy with the decision of James W Cook and Co. (Wivenhoe) Limited -v- Tipper (1990) ICR 716, a case concerned with the closure of a business, it was contended that an Employment Tribunal cannot investigate the commercial and economic reasons which prompted the decision to dismiss one or more staff by reason of redundancies.
23. Here the Appellant contends the Employment Tribunal were challenging the governors' decision that they could select only from Special Needs teachers; in other words they were challenging whether the pool was properly chosen which they are not entitled to do. Mr Hyams on behalf of the Appellants conceded that the governors may have confused funding and needs but submitted that that did not matter as the question remains whether the pool is properly chosen.
24. We do not accept the Appellant's submissions. The Employment Tribunal made no finding that there should have been no redundancies, nor that redundancies could not be made from the Special Needs teaching staff nor that any decision to make such staff as the Respondent redundant was one which no reasonable employer would or could have made. What the Tribunal found was that the governors failed to understand the distinction between reduction in needs and reduction in funding, and that this fundamental flaw in their approach rendered their subsequent consideration of the matter, and of the selection of Mrs John for redundancy, unfair. This error was compounded by their failure to consult before the decision that the reserves should not be drawn upon was made.
25. It should also be noted that the governors relied upon the advice from the head teacher Miss Ball but the Tribunal found that the advice that she gave to them, albeit subconsciously, was misleading. Mrs Preece, the LEA adviser to the staffing panel, said in evidence that it was Miss Ball who had led her to believe that the standards in the school were improving and that therefore the requirement of Special Needs would be less. The Tribunal found that "Miss Ball's activities in July in 'upgrading' children on the school's Special Needs Register strange and disturbing." They further concluded that her judgment and behaviour were unusual and unreliable in the Spring of that year. The governors reliance upon such misleading advice undermined their decision as a whole.
26. The decision which the Tribunal found was fatally flawed was that which they held was made on the 29th of April, namely the selection of Mrs John for redundancy. Their finding therefore related to the selection of Mrs John rather than the selection of the pool. It also appears from paragraph 2 of their decision that they were not in any way challenging the governors authority to decide on redundancies at the school. They there said "having decided upon cuts in other areas, we find that, if the reserves were not to be used, it was reasonable for the Respondents to dismiss a teacher or teachers."
27. The Tribunal specifically reminded itself that the question that they had to answer was whether or not the governors had acted reasonably, and that it was imperative that the Tribunal did not substitute or attempt to substitute its own judgment for that of the governors. Indeed it was only if the governors had acted in a way in which no reasonable governors could have acted that the Applicant could succeed. We are satisfied that the Tribunal had the relevant and proper considerations in mind when making their decision.
28. We conclude that the first ground relied upon by the Appellant misinterprets the Tribunal's findings and cannot succeed.
29. Under ground 1(A) the Appellants contend that the Tribunal stated in paragraph 2A of its decision that it did not consider it of great importance whether the actual reason was 'redundancy' or 'some other substantial reason' because they were satisfied that the reason was a section 98 reason. This, the Appellants submit, constitutes a failure to decide whether the reason for the dismissal was redundancy or some other substantial reason and had the unfortunate effect of preventing the Tribunal from applying its mind properly to the relevant principles.
30. There is however, as Lord Justice Waite said in the case of British Railways Board -v- Jackson (1994) IRLR 235, no express requirement in section 98 that the Tribunal should state the reason found for dismissal. It is the ordinary practice to specify the reason for dismissal so as to ensure that the Tribunal properly applies the criteria of reasonableness and sufficiency involved in the remaining questions which they are required by the Act to answer. But a failure to specify the precise reason will not amount to an error in law unless it can be shown that the failure so to specify has led the Tribunal to fail properly to apply the criteria set out under the Act.
31. We for our part are satisfied that the Tribunal did give proper consideration to the matters that they were obliged to consider under the Act and any failure to specify a precise reason for dismissal has not led them into any error in their evaluation of the case.
32. In ground 2 the Appellants contend that the Tribunal in effect found that the failure to consult the relevant Trade Union in broad terms made the dismissal automatically unfair, a decision which is contrary to Hough -v- Leyland DAF Limited (1991) ICR 696.
33. The Tribunal's decision on this aspect of the case is found in paragraph 9 where it said:-

"It is not for us to decide whether the Respondents should have dipped into the reserves to avoid making the Applicant redundant or, generally, to keep within their budget. That is a matter for the governors. However, in a potential redundancy situation, where that clearly was one of the alternatives to redundancy, we are satisfied that no reasonable governors would have reached the decision not to dip into the reserves before consulting the Trade Unions. While it can be argued that no amount of consultation would have caused the Respondents to use the reserves, some authorities have done that, and the matter is certainly worthy of argument, discussion and representations."

34. The First Appellant's redundancy policy stated that where the panel decide on redundancy as a possible option they are then responsible for consulting with staff and relevant Unions, and that the panel must be free to resolve the situation by methods other than compulsory redundancy if possible. The Tribunal found that the decision of the governing body of the 23rd April not to draw on the reserves, pre-empted the staffing panel's decision on that matter and thereby prevented them from considering methods other than compulsory redundancy. The failure to consult was not a failure to consult in broad terms but a specific failure on the facts of this particular case to consult at a time when options other than compulsory redundancy were still open. The failure to consult must also be set against the background of the Tribunal's finding that the decision to dismiss was fundamentally flawed by a serious misunderstanding and confusion as to the difference between reduction in funding and a reduction in the number of pupils with Special Needs. The failure to consult prior to the decision to dismiss was but one of the pointers towards the "failure by the Respondents properly to appreciate the way in which redundancy should be carried out." (Paragraph 8).
35. When the finding that no reasonable governors would have reached the decision not to dip into the reserves before consulting the Trade Unions is considered in the context of the decision of the Tribunal as a whole and its findings of fact, it is in our view clear that the Tribunal was not stating that a failure to consult the relevant Trade Union in broad terms made the dismissal automatically unfair.
36. Grounds 3 and 4 relate to the question of whether Mrs John should have been redeployed to Miss Daffon's post. In ground 3 it is contended that the Tribunal substituted its own judgment for that of the employer, the First Appellant by deciding that the First Appellant should have redeployed the Respondent to Miss Daffon's job. In ground 4 it is said that the Tribunal failed to ask itself whether it was within the range of reasonable responses of a reasonable employer to decline to redeploy the Respondent to that post contrary to Iceland Frozen Foods -v- Jones (1983) ICR 17 at 24G and Haddon -v- Van den Bergh Foods Limited (1999) ICR 1150 para 25.
37. The Appellant relies upon paragraphs 4G, 7, 10, 11, 12 and 13A of the Tribunal's decision in arguing these two grounds. The Tribunal found that the governors relied heavily on Miss Ball's input and advice on this matter but that that advice was affected subconsciously by Miss Ball's illness and dislike of Mrs John resulting in the denigration of Mrs John's ability as a class teacher and the extent to which Miss Daffon's replacement had to be highly qualified or require considerable re-training. Miss Ball did not objectively or fairly or accurately assess Mrs John's ability as a main stream teacher when advising her fellow governors. This amounts to a finding that her advice was therefore tainted by bias.
38. These are strong findings of fact which the Tribunal was entitled to make having heard the evidence called before it. Mrs John however impressed the Tribunal as a witness and they accepted her judgment that she could have done the job made available by Miss Daffon's departure with little or no further training. Again, the Tribunal was entitled to accept Mrs John's evidence including her own judgment of her abilities. They were not finding that Mrs John should have been redeployed to Miss Daffon's job, but that she could have been. The Tribunal's assessment of Miss Ball's evidence and Mrs John's evidence are not examples of the Tribunal's substituting its own views for that of the governors, but findings of fact which they were entitled to make on the evidence.
39. The reference to the alternative jobs in Coedffranc Infants School and the jobs of Mrs Poole and Mrs Morrison in paragraph 12 of the decision demonstrates that the Tribunal was not making a finding that Mrs John should have been given Miss Daffon's job, but was dealing with all the potential alternative employment situations open to her. This view is reinforced by the reference in paragraph 11 of the decision to offering the Applicant the 'Miss Daffon' job or 'to use it as a way in which to avoid redundancy'. This again demonstrates that the Tribunal did not simply have in mind redeployment to Miss Daffon's job but the need for consideration of all the employment alternatives available. This view of the Tribunal's findings is put beyond doubt by the finding in 13A that 'if the Respondents had behaved as reasonable employers would, and should, have behaved, the probability is that the Applicant would have been retained as a full time teacher, in one role or another, with the Respondents'. This finding, made in the context of remedy, does not deal with the redeployment of Mrs John to Miss Daffon's post but retention 'as a full time teacher in one role or another'.
40. We conclude that the Tribunal was not substituting its own views for that of the governors but coming to a clear view on the evidence that the head teacher's misleading advice prevented proper consideration of Mrs John's capability to take on other teaching roles within the school.
41. We are equally satisfied that the Tribunal gave proper consideration to the question of whether the employer acted reasonably in considering the question of redeployment. It is not necessary for a Tribunal to recite passages from Iceland Frozen Foods relating to a band of reasonable responses, in order to demonstrate that they have considered matters properly. If it is clear, as we find it is in this case, that proper consideration has been given to the question of whether or not the employer acted reasonably, no criticism can be made of the Tribunal for failing to state how it went about that task.
42. The Appellants contend under ground 5 that the Tribunal's finding that the decision not to offer Miss Daffon's job to Mrs John, or to use it as a way in which to avoid redundancy was taken before any consultation with the Unions took place, was a perverse finding.
43. They submit that the decision not to redeploy Mrs John to Miss Daffon's post cannot have been made before the 18th May 1998, that the Union had already been notified of the proposal to dismiss staff for redundancy and general terms by the letter of the 1st May 1998 and that the Union was in fact consulted at length on the 18th May 1998 about the proposed decision not to redeploy Mrs John to Miss Daffon's post.
44. It is accepted on behalf of the Appellant that the staffing panel met alone on the 18th May 1998 before meeting the Unions and that they discussed the matter again having met the Trade Unions. The statement of Linda Preece, the principal personnel officer with responsibility for advising governing bodies of schools, who attended all relevant meetings and drew up the file notes, makes it clear in paragraphs 24 and 25 that genuine consultation with the Unions took place before a final decision was made about the redeployment of Mrs John. When the file notes at R106, 107 and R15 are also considered it is, the Appellants submit, clear that after the meeting with the Unions all matters were genuinely revisited.
45. The Respondent submits that although paragraph 24 states that the governors gave further consideration to the matter in the light of the Trade Union comments and decided that they would have to confirm the redundancies except for the lunch time supervisor, the rest of Linda Preece's statement makes it abundantly clear that the decision not to redeploy had already been made. Firstly in paragraph 16 Mrs Preece states that:-

"the staffing committee delayed the start of the meeting with the Trade Union so that they could consider whether or not this vacancy would alter their decision on the possible redundancies."

In paragraph 17 Mrs Preece states:-

"having looked at the criteria for the senior teaching post and Mrs John's experience and skills, the governors were of the view that Mrs John's experience and skills did not meet the requirements for the vacant post. Therefore the possible redundancies would still stand and the meeting with the Trade Unions went ahead."

46. The Respondent also points out that in paragraph 22 of the statement it is said that the Trade Unions were given a copy of the criteria for the vacant senior teaching post and the governors 'outlined why Mrs John could not be put into the vacancy..'.
47. Furthermore the Respondent submits the file note of the discussion following the meeting with the Trade Union affirmed the decision that the redundancies would stand but makes no mention of any reconsideration or discussion of the redeployment of Mrs John to Miss Daffon's post.
48. In her evidence to the Tribunal Miss Ball is recorded at page 53 of the chairman's notes of evidence as stating in response to a question from the chairman as to whether there had been a decision or provisional decision in relation to redeployment, that the 'governors decided Applicant's experience made unsuitable for this post'. At page 55 she is recording as stating that the Applicant could not even do classroom teaching she would need to attend course for two full terms or a full academic year or be trained in school. At page 57 it was noted that Miss Ball said that the governors did not consider the possibility of moving other teachers around.
49. There was therefore the Respondent submits ample material before the Tribunal upon which it could properly reach the decision that the governors had decided not to redeploy Mrs John before meeting the Unions.
50. In any event, the Respondent submits, any consultation which did take place was at a very short meeting with no documents whatsoever provided for consideration or discussion. That fact together with the tenor of the notes shows that there was no serious reconsideration of the matter by the governors at the meeting with the Trade Unions.
51. Mr Benjamin, the chairman of the governors, agreed when it was put to him in cross-examination that all the Trade Unions could do on the 18th May was object or appeal and that that was not a consultation, that it did not sound like a consultation but said that the governors followed the LEA guidelines. The Respondent also relies upon the fact that Mr Benjamin's unenthusiastic answers as to whether consultation had taken place were echoed by the fact that in his statement he made no reference whatsoever to the meeting with the Unions on the 18th May.
52. We are conscious in considering this ground, as well as ground 5(A) that care must be taken to distinguish between a decision made and a provisional or proposed decision being made which is then subject to consultation and then changed or confirmed as a result of that consultation. We are however of the view that there was material before the Tribunal upon which they could properly conclude, as they did, that the decision not to redeploy had in fact been made before any consultation with the Unions took place. We are not satisfied that the Tribunal's finding in this regard was perverse.
53. Ground 5(A) is another contention on behalf of the Appellants that a finding of the Tribunal was perverse. The finding which is challenged is that set out in paragraph 5 of the decision which concludes that the decision to dismiss was taken at the staffing panel meeting on the 29th April 1998. The Tribunal concluded that a decision, as opposed to a provisional decision, was reached on that date.
54. The Tribunal makes it plain in paragraph 5 of its decision that the starting point for its conclusion that the decision to dismiss was taken on the 29th April, was the content of the file note at R105, but that was not the only basis of its decision. The relevant part of the file note states:-

"therefore, it was obvious where the cuts in staffing would be; Mrs Cerys John has two contracts. It was decided to make the afternoon contract redundant (12½ hours - temporary) saving £7,000?.."

55. When Mrs Preece, who had drawn up the file note, was cross-examined, she said that the word 'decided' in her file note was a mistake, that she had used the incorrect word and put 'decided' rather than 'proposed'. In her statement she used the word 'decided', in paragraph 13 but then referred to 'possible' redundancies in paragraphs 16 and 17. It should be noted, the Respondent submits, that the file note of the meeting of the 29th April 1998 records Mrs John's name which is more consistent with a specific decision having been made on that day than an area for possible redundancies being chosen. By contrast there was no reference to Mrs John's name in the letter to staff and Unions of the 1st of may nor in paragraph 13 of Mrs Preece's witness statement. Furthermore the Respondent submits, Mrs Gough's temporary contract was not to be renewed, and her Union was invited to attend the meeting on the 18th of May, but she had already been told by Miss Ball that her contract was not to be renewed.
56. Mr Benjamin's evidence was that only a 'possible' decision had been taken on the 29th April rather than an actual decision and that the decision on specifics was made after the governors had met the Unions. The Respondent points out however that the chairman's notes indicate that the Tribunal considered that he prevaricated in his evidence (page 5 chairman's notes) when being asked questions about the passage on the file note of the meeting of the 18th of May 1998 as to staffing cuts of the four categories there set out. It is also noted on page 8 of the chairman's notes that the chairman appears to have considered that Mr Benjamin was giving inconsistent answers as to whether the panel could decide to draw from the reserves or whether they would have to go back to the governors.
57. When Miss Ball was giving evidence and gave two alternative explanations for the words 'it was decided' in the file note at R105, the chairman wrote in the margin of his notes 'a snide cynic would say "decided" = decided'.
58. There was therefore the Respondent submits material upon which the Tribunal could make the finding that it did that the decision to dismiss was taken on the 29th April. Firstly the file note said 'it was decided', secondly the naming of specific individuals in that file note supported the fact that a decision had been made, and thirdly the evidence of Mrs Preece, Mr Benjamin and Miss Ball on this matter was not consistent and clearly, from the chairman's notes albeit not recorded in the decision itself, found in part to be unconvincing. The decision in paragraphs 5 and 6 of the decision cannot therefore be properly described as perverse as there was proper material upon which such a decision could be based.
59. We have considered the submissions with care and reminded ourselves of the need to distinguish between a 'decision' and a 'possible' decision and the fact that such expressions might be used in an imprecise way or wrongly treated as being interchangeable. We are nevertheless of the view that the Respondent's submissions are correct and that there was material before the Tribunal upon which it could make the finding it did. It was entitled on its view of the witnesses for the Appellants, to conclude that their explanation for the words 'it was decided' in the file note, were inadequate and should be rejected.
60. Under ground 6 it is contended that the appeal hearing on the 22nd June 1998 before the school governing body was a full and fair appeal hearing which reconsidered the question whether to dismiss afresh and hence cured any procedural failures in the making of the original decision. It is further submitted that the Tribunal paid no or no proper regard to the fact that the appeal committee consisted of different members of the First Appellant from the members of the staff panel who had made the initial decision to dismiss the Respondent.
61. The Appellants rely upon the case of Whitbread & Co. Plc -v- Mills (1988) ICR at 794, 795 where it was said that whether or not an appeal procedure has rectified the situation must depend upon the degree of unfairness at the initial hearing. If there was to be a correction by appeal then such an appeal must be of comprehensive nature, in essence a rehearing and not a mere review. This case was followed in Lloyd -v- Taylor Woodrow Construction (1999) IRLR 782.
62. The Appellants submit that the governing body reheard the whole matter including whether the reserves should be drawn upon or not, and that the procedural faults which existed in the initial dismissal where thereby cured. The Appellants rely upon the statement of Mr R F Lewis of the Education Authority which was before the Tribunal. He refers to a considerable debate taking place and the options of the use of the reserves, redeployment to Miss Daffon's job, or rejection of the appeal being considered. (Paragraph 9).
63. The Respondent submits that paragraph 9(a) of Mr Lewis' statement indicates that the governors noted 'the fall-off in Special Needs requirements', thereby falling into the same error as was made in the initial dismissal. Furthermore, the Respondent submits, the decision not to use the reserves had already been made upon a vote of the governors on the 23rd April 1998 and the appeal panel could not therefore use the reserves to fund the deficit even if it wanted to. The fact that several members of the governing body which had made the decision on the 23rd April 1998 were also on the appeal panel meant in any event that any rehearing of the issue of reserves could not be such as would cure the original defect.
64. As to a rehearing on the question of redeployment the governors expressed the view at the very outset of the appeal hearing (R109) that the cost of retraining Mrs John to suit the vacancy within the school would cost considerably more than the school had in the budget. This again demonstrated that the appeal could not properly be described as a true rehearing on the merits.
65. It is important to note in this context that the finding of the Tribunal in relation to the appeal hearing was expressed as follows in paragraph 4H:-

"we considered whether the holding of the appeal in any way remedied the defects which we have found in the reaching of the decision to dismiss, and the failure to consult the Applicant/her Union prior to the dismissal. We are satisfied that nothing which occurred at the appeal was in any way sufficient to overcome the serious effect the absence of consultation had upon the decision to dismiss taken on 29 April and the errors in thinking which led to the decision. We are satisfied that, by June, nothing that could have been said would have made any difference to the Respondents or caused them to reconsider, let alone alter their decision to dismiss the Applicant."

66. The fact that some of the same governors who had decided not to use the reserves on the 23rd April were sitting on the appeal panel and that the governors expressed their view as to redeployment at the outset of the appeal hearing adverse to Mrs John's interests, support the conclusion which the Tribunal reached. On the basis of these facts it seemed to us impossible to say that the appeal was an open minded comprehensive rehearing of the initial decision. Furthermore Mr Lewis' statement indicates that the appeal body were labouring under the same misapprehension as to a reduction in Special Needs when there was only a reduction in funding, which prevented a true analysis of the situation in the same way as it had done when the initial decision was made.
67. The Tribunal effectively found that the minds of the appeal body were closed when the appeal hearing took place. On the basis of the facts we have just recited there is no basis upon which it would be appropriate for us to interfere with that finding.
68. We would further add that the failure to hold a genuine consultation with Mrs John's Union, was not a matter which was cured by the hearing by the Appellant body on the 22nd June.
69. We are satisfied that the appeal hearing was neither comprehensive enough, nor open minded enough, to rectify the unfairness of the initial hearing.
70. Lastly, under ground 7, the Appellant contends that the Tribunal adopted an 'all or nothing' approach to the question of whether Mrs John would have continued to be employed full time by the First Appellant if a fair procedure had been followed. They should have considered the percentage chance of her continuing in full time employment if a fair procedure had been followed in accordance with Wolesley Centres Limited -v- Simmons (1994) ICR 503.
71. The Tribunal's decision on this matter is at paragraph 13A where they stated that:-

"taking a broad view of the matter, we find that the probabilities are that, if the Respondents had behaved as reasonable employers would, and should, have behaved, the probability is that the Applicant would have been retained as a full time teacher, in one role or another, with the Respondents."

72. The Appellants submit that this finding precludes the question of compensation being properly considered as the Tribunal failed to consider the percentage chance. A remedies hearing could not now make a percentage assessment.
73. The Respondent submits that no decision either on reinstatement or compensation has been made, merely that had the Appellants behaved as they ought to have done the probability is that Mrs John would have been retained. Paragraph 14 states:-

"subject to practicability we lean towards the remedies sought by the Applicant, i.e. either reinstatement or re-engagement."

74. It is submitted that this paragraph makes it abundantly clear that whilst encouraging the Appellant to consider reinstatement, which the Respondent submits they later in fact rejected, the Tribunal was not deciding that issue but leaving open the question of whether reinstatement or compensation should be the remedy.
75. We are satisfied that the Respondent's submissions are correct and that there is no error as to the treatment of remedy in the Tribunal's decision.

Conclusion.

76. The Tribunal considered this case with considerable care over some 10 days and came to clear and robust conclusions on the evidence and the merits. Their conclusion that the dismissal was unfair was based upon those robust findings of fact and we see no error of law in their conclusions. We must therefore dismiss the appeal.

Costs.

77. In a letter dated the 29th December 2000 and in her skeleton argument, Jenni Watson on behalf of Mrs John applies for Mrs John's costs in the event of the appeal being dismissed.
78. The application is made upon the basis that Mrs John or her husband have funded the application to the Tribunal and the appeal, and that that appeal was always without merit. She submits that the appeal had no evidential base and rested upon verbal sleight of hand.
79. The application is resisted in a letter of the 10th January 2001 in which the Appellants assert that the appeal was neither unnecessary, improper nor vexatious and as there has been no unreasonable delay or other unreasonable conduct there is no basis on which costs can be awarded.
80. We have reminded ourselves that unless an appeal can properly be described as groundless or hopeless costs will not be in the ordinary event be awarded. We have considered the application and have come to the conclusion that whilst the appeal has failed completely it cannot properly be said that it falls within one of those exceptional cases which merit an award of costs. We therefore refuse the Respondent's application for costs.