United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A CHOUDHURY (of Counsel) Instructed By: Reynolds Porter Chamberlain 278/282 High Holborn London WC1V 7HA
For the Respondents	MR D OUDKERK (of Counsel) Instructed By: Peterborough City Council Environmental & Legal Services Town Hall Peterborough PE1 1HG


 


MR JUSTICE LINDSAY (PRESIDENT):

1. Mr Raja, a schoolteacher employed by the second Respondent, Peterborough City Council ("PCC") was told by the first Respondent, the Governing Body of Jack Hunt School, that he had failed in his interview for a prospective job at the school which was to begin when the running of the school was shortly to pass to that Governing Body. Mr Raja complained to the Employment Tribunal of, inter alia, unfair dismissal. The Employment Tribunal at Leicester held that his dismissal was not unfair. Mr Raja appeals. His appeal requires us to look in some detail at some provisions of the School Standards and Framework Act 1998 and to touch on the Education (Modification of Enactments Relating to Employment) Order 1998. We shall also need to consider the position in law where a contractual disciplinary appeals process has been departed from without blame for that falling on the employee.

The procedural background

2. Although Mr Raja's appeal is only against the conclusion of the Tribunal that he was not unfairly dismissed, the findings of fact relative to that part of the case are intermingled with the Tribunal's consideration of the other matters of which he complained, namely breach of contract and racial discrimination. Accordingly we will not keep those parts separate but will cover the procedural background without attempting such a separation.
3. On that basis the procedural history began when Mr Raja, who is described in the papers as "black" but whose race is not further described, presented an IT1 on the 8th February 2000 against "Jack Hunt School". It was said to be an IT1 for "racism". He said that he had been dismissed on the 26th January 2000 with effect from the 30th April 2000 and that he had been required to compete for his own job. He had failed in that competition and had been replaced by a white teacher. Whites who had done the same job as he had done, he said, had stayed on at the school.
4. On the 28th February 2000 the Governing Body of the school put in an IT3. They emphasised that the Governing Body was not Mr Raja's employer but rather that Peterborough City Council ("PCC") was. A change in funding and a reduction in funding was explained. From the 1st May 2000 the Governing Body, it said, would be the employer. The structure was to change in that way. The Governing Body said that it had considered who to employ as from the 1st May 2000 and had made selections based on fair and full interviews for the reduced number of jobs thereafter to be on offer. Mr Raja had been unsuccessful in obtaining a post but not, said the Governing Body, because of any racism. Discrimination was denied.
5. On the 10th March 2000 Mr Raja's Union, NASUWT, came on to the scene to represent Mr Raja and asked for leave to amend the IT1. The Union wished to make PCC the first Respondent and the Governing Body of the school the second Respondent. It may be that other changes also were proposed. We do not have a record of leave being given for that amendment but plainly some such leave was given and an amended IT1 emerged.
6. On the 7th April 2000 the Governing Body added to its IT3 in the course of meeting the amended IT1. The order in which the Respondents were listed, however, was that the Governing Body remained the first Respondent and the PCC was added as second Respondent. This amended IT3 asserted that the school was a "foundation" school. It employed its own staff.
7. On the 9th May 2000 PCC put in its IT3. It asserted that it was the Local Education Authority. It accepted and averred that it was Mr Raja's employer (by way of an earlier transfer from Cambridge County Council). Mr Raja's position, it said, was funded by a special grant, the Ethnic Minority and Travellers' Grant ("EMTAG"), from the Department of Education and Employment. The IT3 asserted that Central Government had then changed the system. Individual schools were to become responsible for providing the services funded by EMTAG and the new budget was going to be smaller than it had been. Redundancy, asserted PCC, therefore threatened the multi-cultural service, including Mr Raja, who was employed within it. The IT3 asserted that PCC had given notice to the Unions and had conducted meetings with staff and that individual schools including the Jack Hunt School had conducted a recruitment and selection process. Mr Raja, in the course of that selection process, proved an unsuccessful candidate. PCC had therefore given him a redundancy notice. Efforts had been made to find alternative employment for him but none could be found. He was therefore dismissed but, said PCC, he was dismissed fairly and for redundancy. His contract, asserted PCC at that stage, did not provide for any appeal against the redundancy notice or dismissal.
8. Between the 16th and 20th October 2000 there were 5 days of hearing at the Employment Tribunal at Leicester. Mr Raja appeared by a Union officer, Mrs Mahoney. Both Respondents together were represented by Mr Oudkerk. He also appears for them on this appeal. On the 26th October 2000 the Tribunal's unanimous decision, which was the decision of a Tribunal under the Chairmanship of Mr J.A. Threlfell, was sent to the parties; it was that Mr Raja's complaint of breach of contract failed and was dismissed because it was outside the jurisdiction of the Tribunal. It was held that Mr Raja had been dismissed by the PCC but that the dismissal was not unfair; the complaint of racial discrimination failed and was also dismissed.
9. On the 6th December 2000 the Employment Appeal Tribunal received a Notice of Appeal settled by Mr Choudhury, who has appeared for Mr Raja on this appeal. On the 24th May 2001 at the Preliminary Hearing at the Employment Appeal Tribunal leave was given for an amendment to that Notice of Appeal and it is the amended Notice of Appeal that has been conducted before us. Both Respondents have put in one joint Respondents' Answer.
10. Before going to the argument it may be convenient to summarise some of the factual conclusions at which the Tribunal below arrived.

The facts as found by the Employment Tribunal

11. Mr Raja was in the employ at all relevant times of PCC. He was based 100% at the Jack Hunt School. He was in the multi-cultural education service. His pay and that of others within that service came under grant funding from EMTAG; there was an identifiable but small body of staff funded by the EMTAG system. He was a respected teacher. In September 1999 the school became a "foundation school" with its own devolved budget but the EMTAG budget was not devolved to the school at that stage. It had been proposed that the EMTAG budget was going to pass to the school in the Spring of 1999 but that proved not to be feasible and arrangements were made for PCC to control budgets for a further year. The outcome was that as from the end of April 2000 the Governing Body not PCC would be the employer of teachers at the school, including, from that date, the employer of EMTAG-funded staff. Until that date PCC would remain the employer of the EMTAG staff. The staff at the school were warned that the Governing Body would not necessarily take on all PCC employees; redundancies were possible. There were consultations with Unions. As the facts fell out, the budget for the school was reduced and the Governing Body decided that, in relation to EMTAG-funded teachers, it would not exceed its EMTAG budget and, in turn, that there would therefore have to be a reduction in the aggregate number of EMTAG staff. However, to sweeten the pill, the Governing Body of the school "ring-fenced" the jobs it was going to offer, limiting applicants to those already working at the school for PCC.
12. Applications were made for the new jobs at the school and interviews were arranged. An interview panel was arranged of which the Tribunal said as follows:

"The interviews took place on 26th January. The panel was the Head Teacher, Mr Hilliard, the Deputy, Mr Duncan, Mrs A. Perkins, who was Head of Learning Support and the Line Manager, therefore, of the EMTAG team at the school, Mr Jones the LEA Link Inspector for the school and the Chairman of the panel was Mr Barrett, a Governor. All had training in interviewing. The school did have two Governors from an ethnic minority background; one was recently appointed and had no interview training and the other, for personal business commitments, did not want to be involved in job interviews, except for the odd occasions for very senior posts. Mr Jones from the Education Authority was late and the start of the interviews was delayed.

12. The order of the interviews was the bi-lingual assistants, Mr Kirwan, Mr Heraty, Mrs Keber and Mr Raja who was last. It was clearly a disadvantage for Mr Raja to be last, particularly because the interviews had been delayed by somewhere in the order of 1½-2 hours."

Mr Raja did not perform well at the interviews, the Tribunal said:-

"Mr Kirwan was the clear winner for the co-ordinator post, Mrs Keber for the Deputy and Mr Heraty was the unanimous choice for the Standard Scale post. The view of the panel was that Mr Raja had not performed well at the interview. We accept on the evidence that that was correct. For whatever reason he had not performed well at the interview. We found the four witnesses from whom we heard, who were on the panel, to be honest in their evidence, but we have also taken account of the fact that Mr Raja himself confirmed a number of important points made by the panel. In particular, he agreed that when he was asked about his extra curricular activities, the Head had said the examples given were all at least two years old and asked for recent examples. All Mr Raja could add to that was that he had recently helped Mrs Keber in her drama productions, but he liked to keep a low profile. It is easy to see why that answer would be very damaging to his prospects."

13. Mr Raja was then told that he was unsuccessful. Exactly how it was put does not appear from the Tribunal's decision, nor is any confirmatory letter amongst our papers.
14. By way of his Union Mr Raja asked for an appeal but PCC - his employer - pointed out that it was not it but the Governing Body that had interviewed him and which had decided that he was unsuccessful as to prospective employment, employment after his employment at the school by PCC would have ended by reason of the employment of teachers passing to the Governing Body. He was referred by PCC to the Governing Body. The Tribunal said:-

"He was not offered an appeal by Peterborough despite his contractual right to an appeal under the Burgundy Book Conditions of Service. The [Governing Body] offered him a debrief, but that was not taken up by Mr Raja or the Union."

15. PCC tried to find alternative employment for him; all available vacancies within PCC were considered but Mr Raja himself accepted that none was suitable for him. Accordingly PCC gave him notice of termination on the 3rd February 2000 to expire on the 1st May 2000; that length of notice was his contractual entitlement.
16. As to breach of contract the Employment Tribunal held that that it had no jurisdiction because the original complaint and the amended complaint were both presented before the termination of Mr Raja's employment. There has been no appeal against that conclusion. However, the subject of breach of contract led the Tribunal inescapably to consider by whom Mr Raja was employed and their conclusion was:-

"It follows, therefore, that Mr Raja was employed by Peterborough at all times and it was Peterborough who dismissed him under his contract by letter of the 3rd February. He was never an employee of the Jack Hunt School."

The Tribunal held also that there was no contractual requirement for PCC to give notice in any different way to the notice which it gave.

17. As for unfair dismissal, the Tribunal, having found that PCC were the employers of Mr Raja, said "It is clear that the school has no involvement in his dismissal". It was, said the Tribunal. for Peterborough, as the employer, to show the reason for dismissal and that the reason fell within section 98 of the 1996 Act. The reason shown by PCC was redundancy; the Tribunal say:-

"Here they say it was redundancy. Peterborough was closing its EMTAG service; it was no longer going to employ any people doing the kind of work done by Mr Raja in teaching support. The needs of Peterborough for anyone doing that kind of work was going to disappear completely. That is undoubtedly a redundancy dismissal and we are satisfied that Peterborough has shown that that was the reason for dismissal."

As for the fairness of the dismissal under section 98 (4) the Tribunal said:-

"In determining whether Peterborough did act reasonably in treating these circumstances as sufficient reason to dismiss the applicant, the answer we come to is "yes". The service would no longer exist because of a Government decision. There was nothing that Peterborough, Mr Raja or the Unions could do to influence that decision."

A little later the Tribunal added:-

"It is common ground that Peterborough did everything that it could to find alternative employment, but that there was nothing that was considered suitable by both parties. In that situation we are satisfied that the decision to dismiss the applicant was a reasonable decision which fell within the range of responses open to a reasonable employer and was not an unfair dismissal."

As for racial discrimination, so far as concerned PCC the Tribunal said:-

"There is no allegation suggesting that Peterborough was involved in any way in any act of discrimination against the applicant."

So far as concerned the Governing Body, the Tribunal saw three areas where Mr Raja claimed that he had been treated differently from his white comparators. Of the three it is only the second, relating to the interview process, that needs to be mentioned at all, given the limited nature of the appeal. As to the interview process and the complaint by Mr Raja that he was interviewed late in the day the Tribunal said:-

"The listing is a situation where someone has to be last on the list. We can see no reason to doubt that the explanation that Mr Duncan [the Deputy Head Teacher and member of the interview panel] has given as to why the listing was arranged in the order that it was and once again that is a reason which has nothing to do with the race of any of the candidates, but was based on the posts applied for."

More importantly, the third issue raised by Mr Raja was dealt with by the Tribunal as follows. In their paragraph 34 they said:-

"The third issue and perhaps the most important is the fact that Mr Raja was not selected for employment, but Mrs Keber and Mr Heraty were. The explanations given by the Respondent for that is that both performed better at interview than Mr Raja. As we have already indicated, we have found as a fact that that was the case and it would follow from that that it was proper that they should be the people selected. We reject the suggestion that Mr Raja should have been selected because of his race, as a rôle model and for his ability with a number of languages, useful for the ethnic minority community. We can see the advantage that all of that would have had for him in his job but where that was not a genuine occupational qualification for the post, under the Race Relations Act 1976, it would undoubtedly have been an act of race discrimination if the school had taken that into account. It follows, therefore, that as we are satisfied that any difference in the treatment was not by reason of Mr Raja's race, whether or not there were issues within the process which were unfair on him, the reason for his non-selection was not on the grounds of his race and, therefore, we find that the race discrimination complaint is not made out."

18. That is enough of the wide range of matters as to which the Employment Tribunal made findings of fact; it will be remembered, though, that the appeal to us is solely as to the decision that Mr Raja was not unfairly dismissed.

The questions arising on the appeal.

19. Against that background of fact as found by the Employment Tribunal the appeal, as it seems to us, raises 5 broad questions as follows:-

1. What was the correct disciplinary appeals procedure to be applied in Mr Raja's case?

2. Did the Tribunal below examine the fairness of Mr Raja's dismissal in the light of that correct procedural code;

3. If the Tribunal did not so examine Mr Raja's dismissal, what are the consequences of their not having done so;

4. Is the appellant circumscribed in his argument as to question (3) by reason of not having raised any material point at the Tribunal below;

5. Was there any alternative procedural code available relative to Mr Raja's dismissal and, if so, was his dismissal examined by the Tribunal in the light of that alternative?

We will deal with each of these questions in turn.

The correct procedural code.

20. The Jack Hunt School, as the Tribunal below held, was a "foundation school" for the purposes of the School Standards and Framework Act 1998 ("SSFA"). Schedule 17 of SSFA makes provision as to the staffing of foundation schools. Paragraph 24 of Schedule 17 deals with most dismissals at foundation schools but its paragraph 27 provides:-

"Staff employed by LEA

27. - (1) Nothing in paragraph 24 applies in relation to a person employed by the Authority to work at the school;

(2) Paragraphs 25-29 of Schedule 16 apply in relation to the dismissal or withdrawal from the school of any member of staff who is employed by the Authority as they apply in relation to the dismissal or withdrawal from a school to which that Schedule applies of a person who is employed to work at the school."

As Mr Raja was employed by PCC to work solely (100%) at the school, questions as to his dismissal were thus taken out of Schedule 17 and were made subject to paragraphs 25-29 of Schedule 16.

21. Turning to those, the relevant provisions of paragraphs 25-29 of Schedule 16, as far as material, provide as follows:-

"25. - (1) Where the governing body determine that any person employed by the local education authority to work at the school should cease to work there, they shall notify the authority in writing of their determination and the reasons for it.

(2) If the person concerned is employed to work solely at the school (and he does not resign), the authority shall, before the end of the period of 14 days beginning with the date on which the notification under sub-paragraph (1) is given either -

(a) give him such notice terminating his contract of employment with the authority as is required under that contract, or

(b) terminate that contract without notice if the circumstances are such that they are entitled to do so by reason of his conduct.

(3) ..........

27. - (1) The governing body shall -

(a) make arrangements for giving any person in respect of whom they propose to make a determination under paragraph 25 (1) an opportunity of making representations as to the action they propose to take (including, if he so wishes, oral representations to such person or persons as the governing body may appoint for the purpose), and

(b) have regard to any representations made by him.

(2) The governing body shall also make arrangements for giving any person in respect of whom they have made a determination under paragraph 25 (1) an opportunity of appealing against it before they notify the local education authority of the determination.

(3) .............

29. - (1) The local education authority shall not dismiss a person employed by them to work solely at the school except as provided by paragraph 25."

22. Mr Choudhury submits that, given the mandatory language of paragraph 29 (1) supra, the correct procedural code in Mr Raja's case required up to eight steps in sequence as follows:-

(i) A provisional proposal by the Governing Body that Mr Raja should cease to work at the school (paragraph 25 (1));

(ii) An opportunity should then have been given by the Governing Body to Mr Raja to make representations on the subject (paragraph 27 (1) (a));

(iii) The Governing Body was then to have regard to those representations (paragraph 27 (1) (b));

(iv) If the Governing Body still remained of their provisional view, then there would be a determination that Mr Raja was to cease to work at the school (paragraph 25 (1));

(v) An opportunity was then to be given by the Governing Body to Mr Raja to appeal against that determination (paragraph 27 (2));

(vi) The practical outcome of that appeal then had to be awaited - consider Howard -v- Brixington Infants School and Another [1999] ICR 1096; [1999] ELR 191 EAT;

(vii) If the appeal were to be unsuccessful, then the Governing Body was to notify PCC in writing of their decision and the reasons for it (paragraph 25 (1));

(viii) PCC would then be obliged within 14 days to give notice to Mr Raja terminating his contract of employment (paragraph 25 (2) (a)).

23. We accept that this was the correct procedural code.

Was fairness considered by reference to that correct code?

24. The Tribunal dealt with the applicability of paragraphs 16 and 17 of SSFA as follows:-

"Although the provisions of Schedule 17 say that Schedule 16 applies to Local Education Authority staff employed at a foundation school, which would apply to Mr Raja, those provisions, including the rights of notice before action and rights of appeal before a notice of dismissal can be given, only apply to actions of the Governors not actions of the Local Education Authority."

With respect to the Tribunal below, that cannot be accepted. Paragraph 29 of Schedule 16 makes it quite plain that Schedule 16 applies to the actions of LEAs by providing that LEAs shall not dismiss except as paragraph 25 provided. The Tribunal, in our judgment, was here in error of law. Having thus (wrongly) rejected the applicability of Schedule 16, the Employment Tribunal, not unnaturally, did not consider the fairness of Mr Raja's treatment in the light of the provisions of Schedule 16.

The consequences of not having considered fairness in the light of Schedule 16.

25. We were taken to authorities dealing with the position where a contractual disciplinary appeals process has been departed from.
26. The first was Stoker -v- Lancashire County Council [1992] IRLR 75 C.A.. Mr Stoker was employed by the County Council at a Polytechnic. He was suspended for misconduct. He had the benefit of a very elaborate disciplinary procedure. There was to be (1) a hearing before the Polytechnic's own disciplinary sub-committee, then (2) a hearing before the Polytechnic's appeals sub-committee. Those decisions were then to be subject to (3) confirmation by the County Council's disciplinary sub-committee and (4) as a further appeals stage, to the County Council's appeals sub-committee. Stages (1) and (2) were determined against Mr Stoker. The County Council in relation to stages (3) and (4) held that its rôle should be limited to reviewing the sanction applied, not in conducting a full hearing. Mr Stoker was dismissed. He claimed unfair dismissal. The Employment Tribunal and the Employment Appeal Tribunal took the view that he had been granted every reasonable opportunity in the first two stages and dismissed his claim.
27. In the Court of Appeal it was held that the procedural provisions required a full hearing at stages 3 and 4 at which, so to speak, both "conviction" and "sentence" could be challenged. In relation to the Employment Tribunal's view that Mr Stoker had nonetheless been given every reasonable opportunity (at stages (1) and (2)) and that no reasonable employer could have been expected to have done more, Dillon L.J., with whose judgment McCowan and Nolan L.J.J. agreed, said at paragraph 20:-

"It might be the view that a reasonable employer could be expected to comply with the full requirements of the appeal procedure in its own disciplinary code."

A little later Dillon L.J. added at paragraph 23:-

"But the [Employment] Tribunal necessarily erred in law. They misinterpreted the procedures which were to be followed under the disciplinary code."

As for the ensuing arguments that the error of law made no practical difference and that the employer had nonetheless acted reasonably in treating the outcome of stages (1) and (2) as a sufficient reason for dismissing Mr Stoker, Dillon L.J. said at paragraph 23:-

"As it seems to me the [Employment] Tribunal and the Employment Appeal Tribunal never addressed their minds to the right question in considering whether the County Council had acted reasonably. Therefore, it must follow, in my judgment, that they erred in law in the circumstances of this case and this appeal must succeed."

Accordingly the matter was remitted to a differently constituted Employment Tribunal for it to be reconsidered in the light of the Court of Appeal's judgment and in particular in the light of the fact that Mr Stoker had not been accorded the rights of appeal to which he was entitled.

28. Stoker supra was, with other cases, considered by the Court of Appeal in Westminster City Council -v- Cabaj [1996] IRLR 399; [1996] ICR 960. In Westminster the employer was contractually entitled to an appeal hearing before 3 councillors. Only two turned up. The Employment Tribunal held he had nonetheless been fairly dismissed. On appeal the Employment Appeal Tribunal held that there had been a significant contractual and jurisdictional failure (p. 966 a) which was so fundamental that, were the matter to be remitted, the Employment Tribunal could only conclude that the dismissal had been unfair. The Court of Appeal allowed the appeal and remitted the matter to a differently constituted Employment Tribunal. Amongst the cases cited in Westminster, were West Midlands Cooperative Society Ltd. -v- Tipton [1986] ICR 192 H.L., Polkey -v- A.E. Dayton Services Ltd. [1988] ICR 142 H.L. and Post Office -v- Marney [1990] IRLR 170.
29. Drawing these authorities together so far as they assist on the particular question before us, where the employee cannot be blamed for the departure from the contractual procedure, we would summarise the law as follows.

(i) An employer can be expected to adhere to the appeals procedure which is to be found in the procedural code contractually subsisting between him and his employee;

(ii) It will generally be a breach of contract for him to fail to do so;

(iii) But it is not every contractual breach of such a kind that results in the dismissal being unfair;

(iv) It is not for an Employment Tribunal to consider the hypothetical question of whether the employer would have come to the same conclusion if he had honoured or performed the correct contractual appeal procedure;

(v) It is, though, open to a tribunal to consider whether the employer, had he reflected upon the matter, would fairly and reasonably have concluded that it would have been quite futile to implement (in the detail whose absence is complained of) the contractual appeal provisions;

(vi) Absent a conclusion as in (v) the question is always whether the employee has by reason of the contractual breach been denied the opportunity of demonstrating that the reason for his dismissal truly harboured by the employer was not a reason sufficient to justify his dismissal;

(vii) If, on appeal to the Employment Appeal Tribunal, the Employment Appeal Tribunal duly holds that the sole answer that could properly have been arrived at by the Employment Tribunal to question (vi), if only the Employment Tribunal had properly directed itself on the matter, would have been negative, then and only then is it open to the Employment Appeal Tribunal to substitute its own view;

(viii) But, in other cases where the Tribunal has failed to consider or answer question (vi), the correct course is for the Employment Appeal Tribunal to remit the matter to the Employment Tribunal for that question to be answered.

30. As the Employment Tribunal concluded that the elaborate code of paragraphs 25-29 of Schedule 16 SSFA did not apply in Mr Raja's case, they, in consequence, did not turn their minds to whether Mr Raja had thereby been denied the opportunity of demonstrating that the true reason given by PCC for his dismissal was not, in all the circumstances, a sufficient one. Nor (although on the facts a case for futility could be raised) was there any finding that could be said to be a conclusion of the kind described in paragraph 29 (v) above. If our summary of the relevant authorities is correct, the Employment Tribunal, as in Stoker supra, never addressed itself to the right question, question (vi). That, in our judgment, was an error of law. Moreover, given the comprehensive provisions under which Mr Raja could have made representations to the Governing Body and then, if necessary, could have appealed, we see the matter as one in which, if we may adopt the sentence in Westminster supra at p 971 g, for our part we do not think that it can be predicated that the Tribunal must necessarily have answered question (vi) in the sense which would justify a conclusion that the dismissal was fair. They might have done so but we do not think they would have had to have done so. The case, subject to the considerations we shall deal with below, is thus, in our judgment, one such as requires the appeal to be allowed, the decision to be set aside and for there to be a remission to the Employment Tribunal.

Was such an argument sufficiently raised below?

31. The true construction and effect of SSFA Schedule 17 paragraph 27 and Schedule 16 paragraphs 25-29 was plainly raised before the Employment Tribunal which, as we have seen, held that the Schedule 16 code for representations and appeals did not apply. The respondents were at first minded to argue that it had not been raised below that the Employment Tribunal should have considered whether PCC's failure to perform the Schedule 16 code so denied Mr Raja opportunities to which he was contractually entitled as to make his dismissal unfair. However, in the course of argument and perhaps with a view to obtaining a judgment going beyond the particular case, PCC generously conceded that Mr Choudhury's argument was not to be barred on the ground that some such had not been raised below. In the circumstances we do not need to deal with whether, save for that concession, the argument would have been barred although, given that the questions of construction and effect which we have described were fully before the Employment Tribunal, our inclination would have been that it would have been difficult to shut out Mr Choudhury's argument. In the event, the appellant is not circumscribed in his argument by reason of his not having raised any material point at the Tribunal below.

A possible alternative procedure - "EMEREO".

32. From September 1999 the school had a delegated budget. On the 1st September 1999 there came into effect the Education (Modification of Enactments Relating to Employment) Order 1999, which was conveniently called "EMEREO" during the hearing. EMEREO affected a number of enactments including Part X (Unfair Dismissal) of the Employment Rights Act 1996. So far as relevant it provided:-

"2. Interpretation

(1) ..........

(2) In this Order references to employment powers are references to the powers of appointment, suspension, discipline and dismissal of staff conferred by or under sections 54 and 57 (1) to (3) of, and Schedule 16 and paragraph 27 of Schedule 17 to, the 1998 Act [viz SSFA].

(3) ...........

3. General modifications of employment enactments

(1) In their application to governing bodies having a right to a delegated budget, the enactments set out in the Schedule shall have effect as if -

(a) any reference (however expressed) to an employer, a person by whom employment is offered, or a principal included a reference to the governing body acting in the exercise of their employment powers and as if that governing body had at all material times been such an employer, person or principal;

(b) in relation to the exercise of the governing body's employment powers, employment by the local education authority at a school were employment by the governing body of that 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 local education authority following notification of a determination by a governing body under paragraph 25 (1) of Schedule 16 to the 1998 Act; and

(e) ...........

(2) ...........

(3) ...........

4. Dismissals

Without prejudice to the generality of article 3, where an employee employed at a school having a delegated budget is dismissed by the local authority following notification of a such a determination as is mentioned in article 3 (1) (d) -

(a) section 92 of the 1996 Act shall have effect as if the governing body had dismissed him and as if references to the employer's reasons for dismissing the employee were references to the reasons for which the governing body made their determination; and

(b) Part X of the 1996 Act shall have effect in relation to the dismissal as if the governing body had dismissed him, and the reason or principal reason for which the governing body did so had been the reason or principal reason for which they made their determination."

33. The Employment Tribunal held that EMEREO did not apply. They said:-

"Similarly the provisions of [EMEREO], which make Governors the employer for certain purposes under the Acts that we have to apply, including the Race Relations Act, only apply where the decision is the decision of the Governors rather than the Local Education Authority. That is where the Governors are acting in accordance with their employment powers."

34. Whilst Mr Choudhury argues that the Employment Tribunal erred in so holding it has to be said that neither side greatly pressed its arguments under EMEREO. Thus, although we shall come to conclusions as EMEREO, it cannot be said they emerge from a background of full argument and hence, in our very first paragraph above, we described ourselves as only "touching on" EMEREO.
35. The Tribunal, says Mr Choudhury, was required by EMEREO to consider the Governing Body's reasons for dismissal and whether the Governing Body acted fairly in treating that reason as sufficient to dismiss Mr Raja. That, he says, was never done. We agree that it never was done but we do not see that as being an error of law.
36. The Governing Body never was Mr Raja's employer. It never decided to dismiss him but rather not to take him on. He was just told by the Governing Body that he had not been successful in interview. The dismissal, when it came, was from his employer, PCC. Mr Raja's appeal is only as to his unfair dismissal, not that he was not taken on (e.g. by way of racial discrimination). Only an employer can be proceeded against for unfair dismissal. Paragraph 3 (1) (a) of EMEREO is of no material effect as there is no need to treat the Governing Body as the person who, in exercise of its employment powers, was offering or not offering employment (albeit prospective employment) as that was manifestly the case without any such need to call upon any deeming provision. As for 3 (1) (b), in relation to the possible offer and failure to offer employment by the Governing Body to Mr Raja, it would have been meaningless to treat Mr Raja's employment by PCC as already being employment by the Governing Body as Mr Raja's complaint, were that to be so, would be that it was wrong of the Governing Body not to offer him the job he already had, a complaint which, whatever else could be said of it, could not be described as unfair dismissal.
37. As for 3 (1) (d), on which Mr Choudhury relies, although there was a dismissal by the LEA, PCC, there is nothing to suggest it followed a notification by the Governing Body under paragraph 25 (1) of Schedule 16. Paragraph 3 (1) (d) of EMEREO therefore does not apply and, for a similar reason, nor does paragraph 4 of EMEREO.
38. In the circumstances we do not see that EMEREO had any effect on Mr Raja's case and the Employment Tribunal did not err in its conclusion to that effect. EMEREO, in other words, did not, in the event, provide some alternative effective disciplinary appeals procedure to that required under Schedule 16.

Conclusion

39. For the reasons we have given above we allow the appeal as to unfair dismissal only and remit the matter to the Employment Tribunal. This is not a case where either party has any ground for lack of confidence in the Tribunal that previously heard the matter and accordingly, unless the Regional Chairman decides that to remit to the original Tribunal is either impossible or would be likely substantially to delay the hearing of the remission, we remit to the same Tribunal as before.
40. It is only the question of unfair dismissal which will be before the Tribunal but it may be that they would wish to hear further evidence. That is a matter entirely for them. It may also be (and this, too, is a matter for the Employment Tribunal) that the Tribunal will wish to have a Directions Hearing. On the remission, argument as to unfair dismissal may, if the parties so wish, range beyond the way in which it was argued first time round. For example, arguments might be raised under the so-called "Burgundy Book", which contained the provisions for disciplinary process in Mr Raja's contract. If new arguments are to be raised the Tribunal may prefer that written outlines be supplied and exchanged in advance but that, too, will be a matter entirely for the Employment Tribunal, perhaps best considered at a Directions Hearing.
41. Accordingly, we allow the appeal to the extent we have described above, set aside the decision as to unfair dismissal and (subject as explained) remit it to the same Tribunal as before in the manner we have indicated.