CHRISTOPHER LEWIS v GOVERNING BODY OF JOHN BEDDOES SCHOOL AND ANOTHER [2004] UKEAT 0422_04_1711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0422_04_1711Case No Appeal No. UKEAT/0422/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CHRISTOPHER LEWISAPPELLANTGOVERNING BODY OF JOHN BEDDOES SCHOOL AND ANOTHERRESPONDENT
Before
Mr Justice Rimer Mrs R Chapman Dr S R CorbyDate 17 November 2004
[1]APPEARANCES For the Appellant MR PATRICK GREEN (of Counsel) Instructed by: Messrs Brian Barr Solicitors Enfield House Bury Old Road Manchester M7 4QX For the Respondent MR OWEN PRYS LEWIS (of Counsel) Instructed by: Head of Legal Services County Hall Llandrindod Wells Powys LD1 5LG THE HONOURABLE MR JUSTICE RIMER Introduction This appeal is against a decision of an employment tribunal sitting at Cardiff over three days in February 2004 and chaired by Dr Rachel Davies. The tribunal's extended reasons were sent to the parties on 19 March 2004. The applicant was Mr Christopher Lewis, who is the appellant before us. The respondents are the Governing Body of John Beddoes School, Presteigne ("the School") and the Powys County Council ("the Council"). Mr Lewis was represented before the tribunal by Mrs Jenni Watson, a lay advocate, but was represented before us by Mr Patrick Green. The respondents were represented before us, as before the tribunal, by Mr Owen Prys Lewis.[2]Mr Lewis's claim was for compensation for unfair dismissal and for detriment in consequence of the making of public interest disclosures. The tribunal dismissed both claims, saying they were without merit. As regards the unfair dismissal claim, the respondents' case was that Mr Lewis had been dismissed on the grounds of redundancy and the tribunal held that he had been and that the dismissal was fair. Mr Lewis's case was that there was no real redundancy situation; that he had been targeted for dismissal at the outset; that the School did not apply its own declared redundancy policy; and that there was also no prior consultation with him about his proposed redundancy. He added that, once he was dismissed, other teachers took over some 77% of the teaching hours he had been doing. His complaint on this appeal is that the tribunal gave no express consideration to his case in these various respects beyond an unelaborated rejection of his assertion that he had been targeted. As for his public interest disclosure complaints, the tribunal rejected them on the grounds that there was "no evidence whatsoever" supporting them, about which Mr Lewis complains that they gave no consideration to a material part of his case (his "targeting" allegation) which he says was also directly relevant to this head of his complaints. He says the tribunal ignored this evidence. Before coming more specifically to Mr Lewis's grounds of appeal, we will set out the findings and decision of the employment tribunal. The findings and decision of the employment tribunal[3]Mr Lewis was employed as a teacher of geography and history at the School from 1 January 2000 to 31 August 2002. By 2001/02, the School was operating at a financial deficit. Forecasts showed that, if staff were maintained at the current level, the deficit for 2002/03 would be over £100,000. A local authority licence was required for any deficit and the School was not allowed to exceed a shortfall of £50,000. At a meeting on 12 December 2001, the School Governors resolved to inform the Council that at least one School post would have to be redundant.[4]Any such redundancy would affect the School's curriculum, which would need to be adjusted. On 28 January 2002, the School's Curriculum and Personnel Sub-Committee met to consider three curriculum models. They decided that the model proposing a cycle of 50 teaching periods over two weeks would best meet the pupils' needs and enable cuts to be made. On that basis, and with an eye on the need to safeguard the core subjects of Welsh, Maths, English, Science and Religious Education and the interests of special needs pupils, the Sub-Committee decided that any redundancies should come from the Humanities Department (i.e. Geography and History).[5]On 10 February 2002, Mr Stocker, the School's Head Teacher, wrote to all staff saying that on 28 January the Sub-Committee had put forward the "notion" that a redundant post be found in Humanities. He said the Sub-Committee would meet again on 13 March, in advance of a meeting of the Governors on 18 March at which the Governors would consider the proposals, for which purpose it was important that the Governors should have as much information as possible. He asked the staff to let him know, in confidence, by 8 March whether he or she wished to be considered for voluntary redundancy. He added that:
"Governors will have to use a set of criteria and a skills analysis to help them make a decision about any redundancy. I feel it is right that staff have the opportunity of putting forward their own views. Consequently I would be grateful if staff could consider the criteria and guidance overleaf and give me their suggestions for amendments where necessary by 8 th March."
[6]The "criteria and guidance" so enclosed are not in our bundle, but we do have a version said to incorporate certain later (and immaterial) amendments. The enclosures, although described as "criteria and guidance," were in fact in the nature of detailed requests for information as to the qualifications for appointment to the post of a full-time head History teacher, a full-time head Geography teacher and a part-time History teacher. In paragraph 6 of their reasons, the tribunal referred to Mr Morgan's letter as saying that by it "staff were invited to fill out a skills audit." That was incorrect. The letter contained no such invitation, it merely invited the staff to consider the enclosures and make suggestions for their amendment. Further, the enclosures were of no relevance to staff members who had not taught, or did not teach, either History or Geography: they were not directed at achieving an audit of skills in other School disciplines.[7]Mr Lewis responded on 15 February, asserting that the criteria identified one person as selected for redundancy, the tribunal finding that he was thereby alluding to himself. On 6 March, Mrs Ann Goodwin, a part-time teacher of French and History (she took two History lessons a week), wrote to Mr Stocker saying she would like to give up the History and concentrate on teaching French.[8]Also on 6 March, the Council consulted with the Trade Union representative of staff in eight schools, including the School. The result was that the proposed criteria for redundancy were adjusted in accordance with Union suggestions (these were the immaterial amendments we have mentioned). The tribunal summarised these criteria as including teaching skills, experience, leadership and personal qualities, with length of service as a tie-breaker. The Governors met on 18 March and approved the criteria as adjusted. The tribunal summarised the outcome of this meeting as one at which the Governors concluded that, as a result of budgetary problems, two out of four posts in Humanities would have to go. The Governors appointed a Staff Dismissal Sub-Committee and a Staff Dismissal Appeals Sub-Committee. The tribunal found that each comprised six Governors, although the minutes show that each comprised only five Governors. No Governor sat on both Sub-Committees.[9]The tribunal do not mention it, but on 19 March, immediately following this meeting, Mr Stocker wrote to three staff members in the Humanities department, including Mr Lewis, informing them that the criteria for making a post within the School redundant had been finalised. He pointed out that there had been some changes to the criteria sent out on 10 February. He said that "[a]s you are aware it has been decided to make a humanities post redundant. The selection of an individual for redundancy, against the agreed criteria, will be undertaken by a panel of governors. The panel will meet on Wednesday 10th April 2002." He asked the addressees to return their skills audit. The tribunal also do not mention that on 7 April Mr Lewis returned his completed skills audit, covering some six pages.[10]The Staff Dismissal Sub-Committee met on 10 April. The minutes record that they "analysed submissions of evidence from the four members of teaching staff affected against the agreed criteria …". We were told that that analysis would have been of the skills returns from the three staff members who returned them and of Mrs Goodwin's letter of 6 March. The tribunal found that they took into account the need for History teaching to A and A/S level. Mrs Goodwin was identified as one potential redundancy, she having requested to be released from History teaching. Mr Lewis was identified as the other, he being unable to teach History to A and A/S level. The minutes of this meeting do not themselves prove what the tribunal found. The minutes record simply that as Mr Lewis had "least met the requirements of the agreed criteria" it was resolved that he be the person selected for compulsory redundancy. As for Mrs Goodwin, the minutes merely record the approval of her request to reduce her teaching commitment by two sessions of History per week.[11]The tribunal found that both Mrs Goodwin and Mr Lewis were notified of their potential redundancies the following day. Our bundle includes a copy of the Council's letter of 12 April to Mrs Goodwin, which informed her that, following a meeting of the Staff Dismissals Sub-Committee on 11 April (the minutes show they in fact met on 10 April), "the hours you currently work in Humanities will be redundant. The hours you work in the Modern Foreign Languages Department will be unaffected." We do not have a copy of the letter to Mr Lewis but the tribunal found that it made him angry. He asserted that certain (unidentified) A level students had told him some time earlier that they had seen documentation saying he was to be made redundant. The tribunal found that Mr Stocker questioned certain (also unidentified) A level students who denied having seen any such documentation. There is no finding as to whether any students had had any conversation on the topic with Mr Lewis. A Mr Dean gave evidence to the tribunal that he had seen a document stating that a "History/Geography teacher" was to be redundant but the tribunal said there was no evidence suggesting that this was a reference to Mr Lewis.[12]On 24 April, Mr Lewis attended a meeting with the Staff Dismissal Sub-Committee. His trade union representative was also there in order to support him, but Mr Lewis sent him away. Mr Lewis asserted to the Sub-Committee that they had been formed unconstitutionally and that their proceedings were ultra vires . He made no representations to them about his potential redundancy and offered no explanation as to why he considered they had been formed unconstitutionally. The tribunal explained the basis on which the Sub-Committee had been formed and concluded that the Sub-Committee were reasonably entitled to conclude there was no flaw in their establishment. In the absence of representations from Mr Lewis as to his selection for redundancy, they confirmed his selection. He was notified on 25 April of his right of appeal to the Appeals Sub-Committee. He did appeal, the hearing being on 29 May. It was said on his behalf that there were vacant posts in Maths, PE, Physics and GCSE English to which he could be redeployed but the tribunal found he was unqualified to teach any of these. Mr Lewis made the point that this Sub-Committee was also formed unconstitutionally but the tribunal found that it was not.[13]The tribunal made findings as to certain subsequent events occurring between June and August 2002. We do not think it necessary to detail them. We should mention that there was a meeting on 5 July 2002 between Mr Stocker, Mr Lewis and the latter's union representative. Mr Lewis took the opportunity to raise the matter of an informal disciplinary hearing to which he had been subject on 13 June 2001 arising out of complaints that he had slapped a child and taken unauthorised absences. The outcome of the meeting on 5 July was that that disciplinary hearing would be reviewed and that Mr Lewis could work at home for the remaining two weeks of term. There followed copious correspondence, continuing into 2003, but in the meantime the effective date of the termination of Mr Lewis's employment was 31 August 2002.[14]In expressing their conclusions, the tribunal dealt first with the public interest disclosure complaints and then with the unfair dismissal claim. We will summarise their decisions in reverse order, since it was the unfair dismissal claim which featured most prominently in the appeal just as, so we understand, it did before the tribunal.[15]The tribunal referred to section 98 of the Employment Rights Act 1996 ("the ERA "), and pointed out that redundancy was a potentially fair reason for dismissal. They said they must then be satisfied that the respondents acted reasonably in treating redundancy as a sufficient reason for dismissal. They said that in a redundancy situation the reasonable employer is normally expected to work and consult with those potentially affected, unless there is good reason for not doing so; to identify a pool for selection, if appropriate; to establish reasonable criteria for selection; and to apply them objectively.[16]The tribunal referred to section 139(1)(b)(i) of the ERA . They found that a redundancy situation existed because the need to cut costs required a reorganisation of the curriculum and meant that the School's requirement for employees had "diminished" within the meaning of section 139. They found that the curriculum models were a reasonable way of identifying the department in which redundancies should fall because they reflected the needs of the School. They found that the establishment of a selection pool of Humanities employees (excluding the Assistant Head) was reasonable because that was the area in which cuts could be made with least harm to the curriculum and to the pupils. They found that the criteria for selection based on skills, qualification, leadership and experience were reasonable. They found that the criteria were objectively applied in that the Governors gave long, careful and balanced consideration to the representations and skills audit of each member of the pool. They found that the respondents had applied reasonable procedures in that on 7 December 2001 they had warned staff of the possibility of a redundancy situation (they do not appear to have referred to the latter fact in reciting the evidence, and we do not know what the evidence for it was); that they had applied objective criteria after consultation with the union; that "they gave opportunities for written consultation by inviting representations and completion of skills audits from all those within the "selection pool"; and that they gave Mr Lewis "opportunities for oral consultation with union representation at the meetings of 10 and 24 April, and 29 May". They rejected the suggestion that he had been targeted. They expressed their satisfaction that:
"… the Governors made prolonged, serious and genuine efforts in identifying the appropriate area for redundancy, in application of the criteria, and in reaching the conclusion that they did."
[17]The tribunal concluded overall that the dismissal was for a fair reason, namely redundancy, that the respondents acted reasonably for the purposes of section 98(4) of the ERA and that therefore Mr Lewis's dismissal was fair.[18]Mr Lewis also complained to the tribunal that his dismissal was a detriment in consequence of his having made public interest disclosures. These included complaints as to smoking on the School premises and as to a locked fire door, both of which (in paragraph 23 of their reasons) the tribunal found amounted to qualifying disclosures under section 43B(d) and (e) of the ERA 1996. In paragraph 24, they expressed brief conclusions to the effect that various "detriments" of which Mr Lewis complained were not occasioned by any acts by the School "on the ground" that he had made a protected disclosure (see section 47B of the ERA ); and, in paragraph 25, they said "there was no evidence whatsoever" that he had been subjected "to any detriment whatsoever on the ground that he had made a protected disclosure." The appeal against the dismissal of Mr Lewis's unfair dismissal claim[19]Mr Green advanced two main arguments as to why there were significant errors in the tribunal's reasoning. The first centred on the fact that, as he told us was common ground before the tribunal, the School's employment contracts with staff incorporated a redundancy policy that the LEA had promulgated and the School had adopted. The policy is contained in a document headed "Powys County Council Redundancy Policy". It opens by noting the Council's recognition that uncertainty about future employment is likely to be damaging to employees. Paragraph 1 outlines the policy's objectives of which the first two are directed at ensuring that:
"(a) employees who may be affected by the discontinuance of their work are given fair and equitable treatment, in compliance with the law; (b) as far as possible, changes are effected with the complete understanding and agreement of the employees and unions concerned;"
[20]Paragraph 2, headed "Definitions of Compulsory Redundancy," summarises the circumstances in which redundancy arises under section 139(1) of the ERA . Paragraph 3 is at the heart of the argument and we should set it out:
"3. Means of Avoiding Redundancy In order to avoid possible redundancy each of the following strategies will be investigated and considered: - a complete skills audit of teaching staff - internal reorganisation, leading to internal redeployment with the school - voluntary reduction in hours - job share - re-training of staff to meet requirements of posts vacant internally - restriction on recruitment and non-replacement of posts - termination of temporary, short-term contracts (less than 1 year) - natural wastage - making details available of any early retirement or voluntary redundancy package that may be available - redeployment within the LEA Under the present legislation (particularly Section 46(5) (6) of ERA 1988 for schools with a delegated budget), participation in any redeployment system must be voluntary and by agreement."
We do not need to refer to any more of the redundancy policy.[21]Mr Green's submission was that it is obvious that whole point of paragraph 3 of the policy is that the investigation and consideration of the various listed strategies must be carried out in advance of any decision to impose any redundancies. The paragraph opens with a mandatory "will", not a merely permissive "may." The reason for the "will" is that the declared objective of paragraph 3 is to achieve, if possible, an avoidance of redundancies. Mr Lewis' complaint – which he made to the tribunal – is that in the present case the School made no attempt to investigate, consider or apply certain of the critical strategies listed in paragraph 3.[22]In particular, the tribunal found that the Governors made a decision on 12 December 2001 to inform the Council that at least one post would have to be made redundant, following which, on 28 January 2002, the Curriculum and Personnel Sub-Committee considered three alternative curriculum models, plumped for the one that favoured a 50-period cycle over two weeks and concluded that any redundancies should come from the Humanities Department. Mr Green's criticism of this is that the decision was reached without anyone first doing "a complete skills audit of teaching staff", which is the first "strategy" listed in paragraph 3 of the redundancy policy. Such an audit required returns from all staff in all disciplines so that consideration could then be given to solving the problems by an internal reorganisation of the nature referred to in the second listed "strategy". The School did no such audit and so was in no position to consider such a reorganisation. Nor was it in a position to give any informed consideration to the basis on which it might seek a voluntary reduction in hours or achieve some job sharing. Instead, on the basis simply of the three models, a decision was made that any redundancies would be in the Humanities department. The School followed that up by merely seeking skills audits from three members of that department. In the meantime, Mrs Goodwin had responded to the letter of 10 February 2001 by saying that she wanted to give up her two lessons a week of History teaching because she wanted to concentrate on French, yet immediately after Mr Lewis's dismissal she took on more History teaching than she had been doing before her letter of 6 March: whereas at that point she was teaching History for four periods of 50 minutes each over two weeks, following his dismissal she was doing six one-hour periods over two weeks. In addition, a further 15 hours of History teaching that Mr Lewis had been doing before his dismissal was taken on by other members of staff. The net result of his dismissal was a saving of six hours of History teaching.[23]Mr Green submitted that all this suggests that a proper, and timely, implementation of the strategies required by paragraph 3 of the redundancy policy could or might have avoided Mr Lewis's redundancy. At the very least, the complete failure to implement them made the process leading to his redundancy manifestly unfair, an unfairness compounded by the fact that the decision to make him redundant was not preceded by any form of consultation with him. His only opportunity for making known his views was on 24 April 2001, which was after the decision had been made. In the meantime, and during the currency of the redundancy process, the School was busy recruiting new members of staff, although admittedly not in disciplines in which, at any rate according to Mr Stocker's evidence, Mr Lewis was qualified to teach. Mr Green submitted that again, on the face of it, such recruitment at such time was inconsistent with paragraph 3 of the redundancy policy.[24]In summary, Mr Green's submission was that the School's failure to implement the redundancy policy rendered the whole process of Mr Lewis's redundancy unfair. The failure went directly to whether any redundancy was necessary in the first place; to the selection of the pool from which any redundancies were to be made; and to selection from within that pool. Mr Green's criticism of the tribunal's reasoning was that, although these points were at the forefront of Mr Lewis's case before the tribunal, the tribunal made no reference to them in their extended reasons. They did not even refer to the redundancy policy. The complaint is that the tribunal wholly failed to deal with a serious and responsible case which Mr Lewis claims ought to have resulted in a victory for him rather than defeat. Since the tribunal did not bother to refer to such case, he is left in a position of not knowing why he has lost. If, for any reason, the points were bad ones, the tribunal did not explain why. If, however, they were good ones, then the tribunal needed to explain why they were not good enough to entitle Mr Lewis to win.[25]Mr Green's second point on this aspect of the case was that there was also a good arguable case on the facts that the School had targeted Mr Lewis for dismissal right from the outset of the redundancy considerations. Mr Green did not question that the School needed to save money, but he said that Mr Lewis's case was that, as soon as the School decided to set about it, it deliberately pointed the finger at him as the person who would enable costs to be saved. This aspect of the case was largely based on the curriculum models produced by Mr Stocker and others in December 2001 and used at the 28 January 2002 Governors' meeting. The modules are not without complications of comprehension but the point Mr Green derived from them is that they all showed Mr Lewis as having so-called surplus hours far in excess of any other employee and that they thus effectively identified him as the most likely candidate for redundancy. It is not suggested that Mr Stocker positively encouraged the Governors or the Staff Dismissal Sub-Committee to the view that Mr Lewis was the man who had to go, but what is said is that he and others generated material which planted that idea right from the start. Again, if so, Mr Green submitted that it is a matter which went directly to the fairness of the redundancy process.[26]For the respondents, Mr Prys Lewis submitted that the essence of Mr Lewis's case was that the reality of the matter was that there was no real redundancy situation at all and that the whole process was a sham directed at achieving the removal of Mr Lewis. He said there was no basis for such a suggestion and that the tribunal were entitled to find, as they did, that there was a genuine redundancy situation. He said the evidence showed that the situation the School was facing by the end of 2001 was such that it had no choice but to impose a redundancy. He accepted that no skills audit of the entire School staff was carried out, but he said there was a good reason for that. He relied upon the evidence of Eileen Bellamy, the Council's Principal Education Officer. She apparently said in cross-examination that it was entirely reasonable to identify at the outset an area in the School most suitable for redundancies before going on to consider a skills audit. Otherwise, she said, there would be a waste of resources. Her evidence was that she regarded the process as fair. Mr Prys Lewis adopted that evidence as providing a complete answer to Mr Green's point based on the failure to implement the redundancy policy. As for Mr Green's targeting point, Mr Prys Lewis said that the tribunal were entitled to find that there was nothing in it and that their conclusion in that respect cannot be faulted. He said the only targeting was the Humanities Department as a whole, which was reasonable, not any particular individual within it.[27]In our view, there is no doubt that the tribunal went badly wrong in the manner in which they dealt with Mr Lewis's unfair dismissal claim. It is not in dispute that the School's failure to have regard to the redundancy policy represented a material part of Mr Lewis's unfair dismissal case. The points made in reliance upon that, including that relating to the absence of consultation before the decision to make him redundant, are points which went to the heart of the fairness of his dismissal, yet the tribunal did not even mention them. Whether they even had any regard to the redundancy policy in coming to their decision is unknown. What, however, is clear is that their failure to make any reference to it means that their decision cannot stand. The omission means that, in a fundamental respect, their decision is an unreasoned one which leaves Mr Lewis in ignorance of why he lost. That is an error of law which requires the setting aside of the tribunal's decision that Mr Lewis's dismissal was fair. His claim for unfair dismissal will have to be remitted for re-hearing. As the tribunal appear to have adopted a critical view of the fact that Mr Lewis even brought his claim at all – observing that his case was "without merit" – we also consider that this is a case in which better justice will be seen to be done if the re-hearing is by a freshly constituted tribunal. Having so concluded, we find it unnecessary to say more at this stage about the criticism of the tribunal's rejection of the "targeting" case except that, once again, it was wholly unreasoned. The tribunal nowhere explained what the "targeting" case was or why they were rejecting it. The appeal against the dismissal of the public interest disclosure claim[28]This apparently formed a relatively minor part of the hearing before the tribunal. It also occupied only a relatively small part of the tribunal's reasons and a like part of the argument before us. The essence of Mr Green's argument on this was that the tribunal had failed in its reasons to deal properly with Mr Lewis's "targeting" case apart from summarily rejecting in two unreasoned sentences. He said that this was a material error on the part of the tribunal. They ought to have considered the evidential case that was being made in this respect, to have made primary findings of fact about it and, having done so, considered whether any, and if so what, inferences as to the School's attitude towards Mr Lewis might properly be drawn. He said that if the exercise had been performed properly, it could have resulted in a finding that Mr Lewis was targeted for dismissal by Mr Stocker from the outset. Such a finding would have been highly relevant in considering Mr Lewis's public interest disclosure claims since it would go to the School's motives for the matters of which he complained. Mr Green said that the tribunal's failure to consider the targeting case properly meant that they had never been in a position to approach this part of Mr Lewis's case properly.[29]We regard this head of Mr Lewis's appeal as less solidly founded than that complaining of the rejection of his unfair dismissal claim but have decided that we ought to accept Mr Green's argument on this aspect of the appeal as well. We are satisfied that the tribunal did not address themselves properly to a material part of Mr Lewis's case – namely, the targeting allegation – and we accept Mr Green's submission that a proper consideration of this was a pre-condition to a fair disposal of his public interest disclosure claim. We also allow this head of Mr Lewis's appeal. Result[30]We will allow Mr Lewis's appeal, set aside paragraphs (i) and (ii) of the tribunal's decision and remit Mr Lewis's unfair dismissal and public interest disclosure claims for a re-hearing by a freshly constituted tribunal.