Cyngor Gwynedd Council recently lost yet another Employment Tribunal. This case involved the Council dismissing two local school teachers.
So the Council appealed to the Employment Appeal Tribunal in London - and lost again.
The full judgment can be found here - Copy and paste the address into your browser.
https://assets.publishing.service.gov.uk/media/5ed79310e90e0754cd08d6c4/Gwynedd_Council_v_Shelley_Barratt_and_Other_UKEAT_0206_18_VP.pdf
Below are extracts from the judgment.
My emphasis in bold.
The Claimants were dismissed for redundancy following the closure of the school where they worked. They were unsuccessful in applying for positions at a new school that opened at the same location. The Tribunal held that the dismissals were unfair because of the failure to provide the Claimants with a right of appeal, the absence of consultation and because of the manner in which they were required to “apply for their own jobs”.
The Respondent local authority appealed on the grounds that the Tribunal had erred in its approach to the assessment of fairness under s.98(4) of the 1996 Act in that it had treated guidelines as to what an employer should do in a redundancy dismissal as inflexible legal requirements; and had failed to take account of the particular limitations on the Respondent’s role in relation to recruitment at a maintained school.
8. On 18 August 2017, the chairperson of the Governing Body of School 1, Mr Siencyn, wrote to the Claimants’ representative apologising for the fact that no opportunity to make representations or appeal had been given.
However, Mr Siencyn went on to say that the failure to allow an appeal did not cause any disadvantage to the Claimants and that the appeal would have made no difference as the dismissals were caused by the closure of School 1,which was something that no appeal panel would have been able to reverse so as to avoid dismissals.
The Tribunal found that the assertion by the chair of the Governing Body of School 1 that denying the Claimants their right of appeal did not cause any disadvantage was “extraordinary”, “ill-conceived”, and “emphatically wrong”.
6.An appeal is ingrained in principles of natural justice and, although I do not say that the absence of an appeal would render every dismissal unfair, I do determine that it requires truly exceptional circumstances to refuse an employee the right to appeal against their dismissal. Such exceptional circumstances do not exist in this case, particularly where the Claimants have a statutory and contractual right of appeal. It was substantively and procedurally unfair to deny the Claimants in the case the right of appeal. Furthermore, no reasonable employer would refuse to consider an appeal in circumstances where an employee had a clear right of appeal.
37.Mr Siencyn was also wrong in his contention that the claimants’ appeals would have challenged the closure of the school. Both he and the Respondents conflate the closure of [School 1] with the inevitable dismissal of the claimants. The claimants were merely 2 teachers of many. They had never complained about the reorganisation of educational provision in general nor the decision to close [School 1].There is no factual basis to support the contention that the Claimants were opposed to the reorganisation affecting their school. Indeed they cooperated with the Governing Bodies by applying for their jobs/substantially similar jobs in the new school. It is a fiction (and indeed disingenuous) for Mr Siencyn to say what the claimants appeal would have been about without asking them. The vast bulk of teachers were not dismissed and were able to continue their employment with the respondent as (sic) the new school.
39. Threatening to dismiss staff and compelling them to apply for their own jobs or similar jobs ignores years of jurisprudence on dealing with potential redundancy situations. It abrogates the employer’s responsibilities and seeks to circumvent employment rights. Mr Adkins submitted that the appeals would have challenged the Respondent’s approach to this reorganisation/redundancy and this was something that Mr Siencyn should have allowed.
From the original Tribunal hearing -
41.... Some processes adopted by the employer are so unfair and so fundamentally flawed that it is impossible to formulate the hypothetical question of what would be the percentage chance the employee had still been dismissed even if the correct process had been followed: see Davidson v Industrial Marine Engineering Services Ltd EAT/0071/2003. This is an instance where the breach of a proper process was fundament (sic) and profound. I am not prepared to make a Polkey deduction in such circumstances.
********************
The school in question, Ysgol y Gader, had long been dogged by claims of poor management and heavy absenteeism of teachers leading to poor educational standards.
On the 15th March,2014, the Daily Post published an article with the subheadline -
'Governors raise concerns over the number of experienced staff who have recently left the Dolgellau school and parents have signed a petition.'
It continued -
One of the main concerns are pupils complaining of not having formal lessons and being taught by classroom assistants.
There are also concerns about the number of experienced staff who have recently left the school, and claims of a culture of “overbearing management” causing “a serious issue with staff morale”.
The full article can be found here -
https://www.dailypost.co.uk/news/north-wales-news/gwynedd-ysgol-y-gader-pupils-6835574
The Daily Mail also reported on March, 27th -
Cllr Dyfrig Siencyn, chairman of governors at Ysgol y Gader said: 'The governing body recognises that there are concerns regarding staff absenteeism at Ysgol y Gader during the current academic year.
From the parent's petition -
We believe that the school is failing to provide suitably-qualified staff to cover lessons during long-term staff absences, which leads to a lack of consistence and rigour in the standard of teaching and learning.
The full article can be found here -
https://www.dailymail.co.uk/news/article-2590885/School-fire-high-levels-absent-teachers-holds-public-meeting-discuss-issue-head-fails-attend.html
Ysgol y Gader was closed in 2017 and replaced by a 3-16 all-through, super school, Ysgol Bro Idris.
Dyfrig Siencyn is now leader of Gwynedd Council.
So the Council appealed to the Employment Appeal Tribunal in London - and lost again.
The full judgment can be found here - Copy and paste the address into your browser.
https://assets.publishing.service.gov.uk/media/5ed79310e90e0754cd08d6c4/Gwynedd_Council_v_Shelley_Barratt_and_Other_UKEAT_0206_18_VP.pdf
Below are extracts from the judgment.
My emphasis in bold.
The Claimants were dismissed for redundancy following the closure of the school where they worked. They were unsuccessful in applying for positions at a new school that opened at the same location. The Tribunal held that the dismissals were unfair because of the failure to provide the Claimants with a right of appeal, the absence of consultation and because of the manner in which they were required to “apply for their own jobs”.
The Respondent local authority appealed on the grounds that the Tribunal had erred in its approach to the assessment of fairness under s.98(4) of the 1996 Act in that it had treated guidelines as to what an employer should do in a redundancy dismissal as inflexible legal requirements; and had failed to take account of the particular limitations on the Respondent’s role in relation to recruitment at a maintained school.
8. On 18 August 2017, the chairperson of the Governing Body of School 1, Mr Siencyn, wrote to the Claimants’ representative apologising for the fact that no opportunity to make representations or appeal had been given.
However, Mr Siencyn went on to say that the failure to allow an appeal did not cause any disadvantage to the Claimants and that the appeal would have made no difference as the dismissals were caused by the closure of School 1,which was something that no appeal panel would have been able to reverse so as to avoid dismissals.
The Tribunal found that the assertion by the chair of the Governing Body of School 1 that denying the Claimants their right of appeal did not cause any disadvantage was “extraordinary”, “ill-conceived”, and “emphatically wrong”.
6.An appeal is ingrained in principles of natural justice and, although I do not say that the absence of an appeal would render every dismissal unfair, I do determine that it requires truly exceptional circumstances to refuse an employee the right to appeal against their dismissal. Such exceptional circumstances do not exist in this case, particularly where the Claimants have a statutory and contractual right of appeal. It was substantively and procedurally unfair to deny the Claimants in the case the right of appeal. Furthermore, no reasonable employer would refuse to consider an appeal in circumstances where an employee had a clear right of appeal.
37.Mr Siencyn was also wrong in his contention that the claimants’ appeals would have challenged the closure of the school. Both he and the Respondents conflate the closure of [School 1] with the inevitable dismissal of the claimants. The claimants were merely 2 teachers of many. They had never complained about the reorganisation of educational provision in general nor the decision to close [School 1].There is no factual basis to support the contention that the Claimants were opposed to the reorganisation affecting their school. Indeed they cooperated with the Governing Bodies by applying for their jobs/substantially similar jobs in the new school. It is a fiction (and indeed disingenuous) for Mr Siencyn to say what the claimants appeal would have been about without asking them. The vast bulk of teachers were not dismissed and were able to continue their employment with the respondent as (sic) the new school.
39. Threatening to dismiss staff and compelling them to apply for their own jobs or similar jobs ignores years of jurisprudence on dealing with potential redundancy situations. It abrogates the employer’s responsibilities and seeks to circumvent employment rights. Mr Adkins submitted that the appeals would have challenged the Respondent’s approach to this reorganisation/redundancy and this was something that Mr Siencyn should have allowed.
From the original Tribunal hearing -
41.... Some processes adopted by the employer are so unfair and so fundamentally flawed that it is impossible to formulate the hypothetical question of what would be the percentage chance the employee had still been dismissed even if the correct process had been followed: see Davidson v Industrial Marine Engineering Services Ltd EAT/0071/2003. This is an instance where the breach of a proper process was fundament (sic) and profound. I am not prepared to make a Polkey deduction in such circumstances.
********************
The school in question, Ysgol y Gader, had long been dogged by claims of poor management and heavy absenteeism of teachers leading to poor educational standards.
On the 15th March,2014, the Daily Post published an article with the subheadline -
'Governors raise concerns over the number of experienced staff who have recently left the Dolgellau school and parents have signed a petition.'
It continued -
One of the main concerns are pupils complaining of not having formal lessons and being taught by classroom assistants.
There are also concerns about the number of experienced staff who have recently left the school, and claims of a culture of “overbearing management” causing “a serious issue with staff morale”.
The full article can be found here -
https://www.dailypost.co.uk/news/north-wales-news/gwynedd-ysgol-y-gader-pupils-6835574
The Daily Mail also reported on March, 27th -
- Parents at Ysgol y Gader school, Wales, created petition about absent staff
- Meeting arranged and staff absenteeism was put at the top of agenda
- But headteacher Peter Maddocks was not present - and is now not at work
- One parent said: 'The meeting was a farce. Someone needs to step in'
Cllr Dyfrig Siencyn, chairman of governors at Ysgol y Gader said: 'The governing body recognises that there are concerns regarding staff absenteeism at Ysgol y Gader during the current academic year.
From the parent's petition -
We believe that the school is failing to provide suitably-qualified staff to cover lessons during long-term staff absences, which leads to a lack of consistence and rigour in the standard of teaching and learning.
The full article can be found here -
https://www.dailymail.co.uk/news/article-2590885/School-fire-high-levels-absent-teachers-holds-public-meeting-discuss-issue-head-fails-attend.html
Ysgol y Gader was closed in 2017 and replaced by a 3-16 all-through, super school, Ysgol Bro Idris.
Dyfrig Siencyn is now leader of Gwynedd Council.
