Unfair Dismissal and Procedural Fairness - Failure to Provide Reasons for Dismissing Appeal Against Dismissal

This issue was considered by the Employment Appeal Tribunal (EAT) in the case of Elmore v The Governors of Darland High School and another.

Best Practice

The failure to provide written reasons for rejecting the employee's appeal did not affect the outcome in this case. However it is still good practice for an employer to confirm the result of any appeal together with the reasons for their decision in writing in an outcome letter.

This particular case was decided on its facts and, in other circumstances, the failure to provide written reasons could have contributed to a finding against the School. In addition the ACAS Guide confirms that written reasons should be provided.

The Facts

The Claimant joined Darland High School (DHS) as a full-time Maths teacher in September 2002. DHS was subject to regular inspections by the Welsh School Inspectorate and in 2013, the Inspectorate reported that DHS had performed consistently lower in Maths than other schools. The Claimant's lessons were observed by a number of teachers, who expressed concerns about her teaching. In January 2014, the Claimant's class performed particularly poorly in their exams and this resulted in DHS implementing its capability procedure. Despite offering the Claimant adequate support and an opportunity to improve, DHS felt that her performance failed to meet the required standard and it subsequently dismissed her on capability grounds.

The Claimant appealed against DHS's decision to dismiss, however the appeal panel upheld the dismissal on capability grounds albeit without giving written reasons for their decision. The Claimant brought a claim for unfair dismissal in the employment tribunal on the basis that the panel had failed to provide any reasons for upholding the dismissal in its letter to her confirming the outcome of the appeal.

During the hearing at the employment tribunal, DHS did not call a member of the appeal panel to give witness evidence. Whilst the tribunal recognised that the Claimant was a 'career teacher' and the consequences of dismissal were 'severe', it was satisfied that the Claimant had received suitable supervision and encouragement and rejected her argument that DHS was not entitled to treat a teacher whose lessons were found to be 'adequate' as not meeting the required standard. The tribunal accepted that the standard set by DHS was reasonable and that the decision to dismiss her was both procedurally and substantively fair.

The Claimant appealed to the EAT on the grounds that the tribunal had erred in law by concluding that her dismissal was procedurally fair when there was insufficient evidence to conclude that there had been a fair appeal.

Decision

The EAT dismissed the appeal. It held that the tribunal had been entitled to conclude that the Claimant's dismissal was fair on the facts for a number of reasons:

1. There was no dispute that the Claimant's teaching was regarded as below the standard required by DHS
   
   
2. The capability procedure was robust and fair, and the appeal panel reached its decision in an "objective, impartial and balanced way".
   
   
3. The Claimant did not advance any fresh evidence or new arguments at the appeal stage, but rather a recap of the arguments and material originally relied on.
   
   
4. The appeal panel explored the question of future improvement in the Claimant's level of performance and found that the panel was entitled to conclude that she gave no assurance of future improvement based on the answers she gave.

In light of the above, the EAT held that the tribunal had drawn a permissible inference that the appeal panel dismissed The Claimant's appeal on the same grounds and for the same reasons as those identified in the original capability hearing.

For more information, please contact Nick Murrell in the Employment Law team on 0117 314 5627.