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07 August 2017

64: Employment Appeal Tribunal rules dismissal was fair despite failure to provide reasons for rejecting appeal

In Elmore v The Governors of Darland High School and another, the EAT had to consider whether to uphold an Employment Tribunal’s decision that a dismissal was fair where no reasons were given for rejecting the employee’s appeal against dismissal, and where the employer had failed to call a member of the appeal panel to give evidence at the Tribunal hearing.

Mrs Elmore was employed as a maths teacher at Darland High School (DHS). In 2013, the school inspectorate reported that DHS’ performance in maths was consistently lower than other schools. In January 2014, Mrs Elmore’s class performed particularly badly in their exams and this resulted in DHS taking her through its capability procedure. After offering Mrs Elmore additional support and an opportunity to improve, DHS concluded that she had failed to meet the required standard and dismissed her on capability grounds. Mrs Elmore appealed. The appeal panel upheld her dismissal without providing her with reasons for their decision. She then brought a claim for unfair dismissal in the Employment Tribunal.

The Tribunal held that Mrs Elmore’s dismissal was both procedurally and substantively fair. It held that she had received suitable supervision and encouragement, and that DHS had grounds for concluding that she had failed to reach the required standard. The Tribunal noted the appeal panel’s failure to provide specific reasons for upholding the decision to dismiss, and DHS did not call a member of the appeal panel to give evidence at the Tribunal. However, the Tribunal concluded that it could be gleaned from the appeal panel’s decision to uphold the dismissal that their reasons were the same as those of the original dismissal panel.

Mrs Elmore 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.

The EAT dismissed her appeal, ruling that the Tribunal had been entitled to conclude that Mrs Elmore’s dismissal was fair on the facts. The Head of Maths, who had conducted many observations of Mrs Elmore’s lessons, had given evidence in the Tribunal hearing. A member of the capability hearing panel had also given evidence on the reasons for the decision to dismiss. Minutes of the appeal hearing had been disclosed and considered by the Tribunal from which it was clear that the appeal panel had explored relevant issues and asked the appropriate questions, and that no new evidence had been introduced by Mrs Elmore. In addition, although the appeal decision letter could be criticised for its lack of reasons, the letter did set out the capability panel’s reasons for dismissal. The EAT concluded that, in the context of what had happened before the appeal stage, the Tribunal had drawn a permissible inference that the appeal panel upheld Mrs Elmore’s dismissal for the same reasons as those identified in the original capability hearing.

Although the failure to provide reasons for rejecting the employee’s appeal did not affect the outcome in this case, it is good practice to provide written reasons for dismissing or upholding an appeal. This case may have been decided differently if the appeal had involved any fresh evidence or new arguments. It should also be noted that DHS was able to demonstrate that its capability procedure had been robust and fair, and that the appeal panel had reached its decision in an objective, impartial and balanced way.

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