Mrs N Thomas v The Governing Body of St Bridge School and Denbighshire County Council: 1601243/2017
JUDGMENT
[1]The claimant’s application to vary or revoke the Judgment is dismissed. ---1---REASONS
[1]By an earlier judgment I dismissed the claimant’s claim of unfair dismissal for the reasons set out in the judgment. The claimant has sought a reconsideration of that decision.[2]The reconsideration application sets out arguments in relation to a number of the paragraphs of the reasons which I shall deal with in turn. However before dealing with the individual submissions it is perhaps worth bearing in mind my overall conclusions. The respondent wished to continue to be able to each French and Spanish but with a reduction from 1.6 FTE to 1.0 FTE teaching staff. After an, in my judgement, fair redundancy selection process they chose to retain the services of the teacher they concluded was best able to teach both, a view they were in my judgment entitled to reach. Thus in my view the process was fair and the conclusion was one rationally and reasonably open to them on the information before them.[3]Paragraph 5 – The claimant contends that I should have found that the scoring matrix and the decision to allow Ms Brennan to teach French in 2017/18 were both deliberate acts to ensure that Ms Brennan was selected above the claimant. In my judgment there is no evidence that there was any pre-conceived plan or deliberate manipulation of the scoring system and I did not find that either had taken place in my earlier judgment. I can see nothing in the reconsideration submissions to cause me to alter that view.[4]Paragraph 6 – The claimant contends that I should have concluded that the Spanish teaching was in fact redundant. The basis for this is that the reduction of the teaching complement from 1.6 FTE to 1.0 FTE automatically limited the amount of language teaching that could be provided. This is necessarily correct but does not in my judgment lead to the conclusion that Spanish teaching was redundant. As I set out in the judgment I accepted the respondent’s evidence that they did intend to continue providing Spanish teaching.[5]Paragraph 11 – The claimant submits that if it is correct that the respondent intended to carry on providing French and Spanish that it was obliged to “mitigate the redundancy” by offering each of the teachers a pro rata reduction to reflect the existing breakdown of French and Spanish in 2017/18. I am not aware of an authority to this effect but in my judgment it is an obviously misconceived argument. Even if it was possible to provide a breakdown for one years’ teaching it could not do so thereafter. This appears to me to exemplify the claimant’s misunderstanding of the respondent’s case. It wished to be able to provide French and Spanish teaching in the future and clearly could not predict with any certainty what the breakdown between the two would be for any given year. To continue to retain two teachers both on reduced pro rata contracts would reduce flexibility not increase it and set in stone the division in the first year. Self-evidently the better option was to continue to employ a teacher who could teach both and adapt on a yearly/termly basis to fluctuations in the provision of each. ---2---[6]The claimant further submits that I ignored evidence that Consortia schools did not offer Spanish. This is irrelevant. I accepted the respondent’s evidence that it had decided to retain the ability to teach Spanish in future. It does not matter whether it was obliged to or simply chose to. It is not the function of the tribunal to determine whether an organisation could have made different decisions as to it future requirements but to assess the fairness of any redundancy selection process necessitated by those decisions.[7]Paragraphs 12/13 – The claimant re-iterates her argument that if the pool for selection was identified as Modern Foreign languages that it should be treated as single subject. The conclusion that they invited and invite me to draw (as is set out in paragraph 13) is that all teachers within the department should simply be assumed to be equally qualified to teach all modern languages if modern language teaching is one subject; and that actual differences in competence must be ignored in a redundancy selection exercise. This is in my judgement a baffling proposition. If the claimant is correct it defeats the whole purpose of holding such an exercise as the respondent is obliged to assume that all teachers are equally skilled in every language when this is obviously not true. As will be apparent I am no more convinced by this argument than I was when I first made my decision.[8]It follows that there is nothing in the reconsideration request which causes me to revoke or vary the original decision. Judgment entered into Register[1]This is the decision of the employment tribunal in the case of Mrs M Thomas and the Governing Body of St Brigids School and Denbighshire County Council. It has been accepted that the correct respondent is the Governing Body of St Brigids School and the claimant accepts the claim against the second respondent should be dismissed.[2]By a claim form submitted on 15 December 2017 the claimant brings a claim of unfair dismissal arising out of a redundancy selection process which resulted in her dismissal. There is little dispute of fact between the parties, the only significant one for my purposes being whether the school did or did not intend to continue to provide Spanish going forward. The tribunal has heard evidence from the claimant, and on behalf of the respondent from Ms Dawn Docx (a school governor and a member of the redundancy selection panel) and Ms Jane Wood (a school governor and member of the redundancy appeal panel)[3]The respondent is a relatively small voluntary aided state middle school catering for students of ages 3 to 18 based in Denbighshire in North Wales. The claimant was employed as a full-time French teacher in the Modern Foreign Languages department. She taught French to years 7, 8, 9 10 and 11 and had in 2016/17 taught year 12, the first sixth form/A-level year. There was only one other teacher in the MFL department, Ms Ciara Brennan (CB) who was employed as a part-time teacher on a 0.6 FTE contract. She had applied specifically for an advertised post of a Spanish teacher but had since 2015 taught A-level French and Spanish to GCSE.[4]The respondent’s evidence, which I accept, is that an Estyn inspection had criticised the level of staff salaries which were some 91% of the school’s total budget. The school needed to reduce that to at most 85% if not lower. On 30 November 2016 there was a joint meeting of the curriculum and staffing committees which met to discuss proposed changes to the following year’s curriculum to see whether it could be adjusted to result in a need for fewer staff. It was agreed that the MFL teaching provision could be reduced from a total of 1.6 FTE teachers (i.e. the combined total of the claimant and CB’s employment) to 1.0 full time equivalent. As a result a redundancy situation had arisen within the MFL department.[5]A redundancy consultation document was drawn up and on 13th February 2017 a consultation meeting took place. On 21 March 2017 the NASUWT sent in a response to the consultation making a number of comments on the proposed redundancy. As modern foreign languages was one of the areas in which redundancies were proposed the claimant and CB completed a skills audit. When the two were compared there were a number of differences and originally CB scored 40 whereas the claimant scored 34. In respect of the area “Leader of Subject” CB scored three and the claimant scored one, which was subsequently revised upwards to 3 thus increasing the claimant’s score to 36. However even with revised score she still scored less than Ms Brennan in respect of “Teaching Experience Other Subjects”. In respect of Key Stage3 CB scored three and the claimant 1; and in respect Key Stage 5 again CB scored three and the claimant one. Thus even after some revision of the scores there remained an overall four mark difference in CB’s favour. ---2---[6]On 4 April 2017 the redundancy committee met to apply the selection criteria and nominate employees for redundancy. The conclusion of the committee that was that the claimant should be provisionally selected for redundancy, and a hearing was arranged on 2 May 2017. The meeting was chaired by Ms Dawn Docx, a governor of the school. The claimant was represented by Mr Adkins at the meeting (as she is before me). Central to Mr Adkins contentions at the meeting was the proposition that the pool had not been correctly constructed. This derives from an argument that the redundancy selection pool should not been defined as modern foreign languages, but that French and Spanish should be treated as separate subjects not as part of the same department. He contended that if this analysis was correct then as Spanish was not to be taught the next year then Spanish teaching should be regarded as redundant and accordingly the claimant retained as a specialist French teacher. The head teacher who was present at the meeting asserted that there was an obligation to continue teaching both French and Spanish for years 11 and 13 for exam purposes and that in essence the school currently had two teachers one of whom was qualified to teach French and one of whom was qualified to teach both French and Spanish. The committee accepted this and concluded that the claimant would be made redundant.[7]The claimant appealed and the appeal was heard by the Redundancy Appeal Panel on 22nd May 2017. At the hearing Mr Adkins advanced similar arguments to those outline above but the appeal committee confirmed the redundancy.Conclusions
[8]The arguments before me are very similar to those pursued in the internal process.[9]The first question is whether the respondent has established a fair reason for dismissal. In this case it is redundancy, which is potentially capable of being a fair reason within s98(2) ERA 1996. As set out above I am entirely satisfied that redundancy was the genuine reason for dismissal. I accept that in order to comply with Estyn inspection requirements that the proportion of the schools budget spent on salaries had to be reduced, and that for the reason given the only area in which those salary reductions could be made was in staff salaries by the point the respondent had reached in 2017. It is in fact in any event not for me to judge whether there were other ways of making those savings, simply that the reasons put forward by the respondent were the genuine reasons. I am therefore entirely satisfied that the genuine reason for dismissal was redundancy.[10]In order to judge the fairness of a dismissal for redundancy the tribunal has to assess whether the composition of the pool for selection was a reasonable one, whether the scoring criteria were reasonable and applied fairly, and whether there was sufficient consultation. In this case while the first two questions are in issue there has been no suggestion that there was insufficient consultation. ---3---[11]A significant part of the claimant’s case is that the redundancy was selection was based on a factual misconception or misunderstanding. As advanced both in the redundancy and redundancy appeal meetings she maintains that it was not the school’s intention to teach Spanish the following year with the consequence that if there were to be a redundancy that it should automatically fall within the field of Spanish teaching, or at very least that there should be no advantage in having the ability to teach Spanish if it were no longer to be taught. This is not accepted by the respondent which asserts firstly that it was intending to continue to teach Spanish in years 11 and 13 (the GCSE and A level years) and that whilst a decision had been made not to offer it in year 9 no decision had been made in respect of other years; and that in any event the school was obliged to continue to offer Spanish as it hosted Spanish A level for a consortium of schools across Denbighshire. I accept the respondents evidence as to this, and therefore that there was a genuine requirement for the provision for teaching both French and Spanish going forward.[12]As set out above one of the claimant’s primary claims is that the pool for selection was wrongly identified as Modern Foreign Language teaching, as the two teachers involved should have been treated as teaching separate subjects. I confess this is an argument I do not follow. The school had identified that it could fulfil its language teaching curriculum requirements with one teacher, or at least a total of one full time equivalent even if not necessarily one individual. The curriculum that needed to be provided included both French and Spanish. It is therefore probably inevitable, and at very least within the range reasonably open to the respondent to construct the pool so as to include all those who taught French and Spanish.[13]The next issue is scoring. The claimant’s submission is that if it was acceptable to include all language teachers in the same pool, then there should be no distinction made between them on the basis of languages they were able to teach. Put simply Mr Adkins contends on the claimant’s behalf that if she is to be identified generically as a language teacher for the purpose of establishing the pool for selection, she should be deemed capable of teaching any language. In his final submissions he did not shy away from accepting that the logic of his position was that she should be deemed capable of teaching a language of which she did not speak a word. This seems to me an improbable suggestion. Self-evidently if a school is to reduce the number of teachers but maintain the number of languages, those who can teach more than one will score more highly than those who cannot. I agree with the claimant to the extent that where the pool consists of two teachers and one can and does already each both languages, and one does not, that the scoring and result might appear to be a foregone conclusion, and why the claimant should feel subjectively that she was effectively targeted in the redundancy selection process. However in my judgement it was reasonably open to the respondent to score in the way it did, and a scoring system which rewards more highly experience of and the ability to teach more than one language, is perfectly rational given that the outcome of the process was intended to allow the respondent to teach both languages with fewer teachers.[14]Looked at overall and in summary in my judgment the dismissal was genuinely by reason of redundancy, the pool was appropriately selected, and the scoring system ---4--- was a rational one open to the respondent; and the decisions of the redundancy panel and redundancy appeal panel were rational conclusions open to them to reach.[15]For these reasons the claimant’s claim of unfair dismissal is dismissed. Judgment entered into Register