It is common practice for employers to call a member of a dismissal appeal panel to give evidence at an unfair dismissal tribunal hearing. This case illustrates that a failure to do so will not be fatal in every case. This may particularly be so where no new evidence or arguments are raised by the employee at the appeal. However, if an employer is unable or unwilling to call an appeal witness at the hearing, it should ensure that the evidence provided by other witnesses regarding the rest of the dismissal procedure followed is thorough and robust.
While the point appears to not have been raised in this case, it is worth noting that Acas Guide, Discipline and grievances states that it is good practice for an employer to confirm in writing to an employee the results of their appeal and the reasons for the decision. It is therefore good practice for employers to set out the reasons why an appeal is dismissed or upheld in the appeal outcome letter.
Mrs Elmore was employed as a maths teacher at Darland High School (the school) from 2002 until her dismissal on capability grounds in April 2015. Inspections carried out at the school by the Welsh school inspectorate found its performance in maths was consistently lower than other schools. In January 2014, Mrs Elmore’s class performed particularly badly in their exams. The school took Mrs Elmore through its capability procedure. However, Mrs Elmore failed to improve to the extent required by the school and it dismissed her.
Mrs Elmore appealed her dismissal. The appeal panel upheld the decision to dismiss but provided no reasons for doing so in their letter confirming the outcome of the appeal.
Mrs Elmore brought a claim for unfair dismissal in the employment tribunal. No member of the appeal panel gave evidence at the hearing. The tribunal found that Mrs Elmore had been given adequate support and encouragement during the capability procedure and that the school had grounds for its conclusion that she had failed to reach the required standard. The tribunal concluded that Mrs Elmore’s dismissal was both procedurally and substantively fair.
The tribunal noted that the appeal panel had failed to set out their reasons for upholding the decision to dismiss. However it decided that it could be gleaned from their decision to uphold the dismissal that their reasons were the same as those of the dismissal panel.
Mrs Elmore appealed to the Employment Appeal Tribunal (EAT) on the basis that the employment judge 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 the appeal.
The EAT rejected Mrs Elmore’s argument that a tribunal cannot conclude that a dismissal is fair without hearing from a member of the appeal panel to explain the reasons for dismissing the appeal.
The EAT decided that the tribunal had been entitled to reach the conclusion that her dismissal was fair on the facts. In particular:
- The Head of Maths at the school had given evidence at the hearing. He had conducted many observations of Mrs Elmore’s lessons and out of eight lessons observed, five were classed as inadequate, three were adequate and none were good – the school’s required standard.
- A member of the capability hearing panel had given evidence at the hearing and the tribunal had found her evidence on the reasons for the decision to dismiss impressive. It found that the reason to dismiss was because Mrs Elmore had not achieved the target set by the school in relation to an important educational subject and because of her attitude towards achieving that target. The tribunal had concluded that the panel had approached the questions they had to decide in an objective, impartial and balanced way in coming to the decision they did.
- No new arguments or evidence had been put forward on appeal. There was no suggestion that the appeal panel was improperly constituted, biased or behaved improperly.
- Minutes of the appeal hearing were disclosed and considered by the tribunal. The minutes indicated discussion and exploration of the relevant issues and appropriate questions were asked by the panel. The discussion and questioning of Mrs Elmore was inconsistent with any suggestion that the appeal hearing was a mere formality or rubber-stamping exercise and provided no basis for thinking that irrelevant factors were in the mind of the appeal panel when reaching their decision.
- The appeal decision letter could be criticised for failing to set out the reasons for the decision to uphold the appeal, particularly as it was a career-ending letter for a long-standing member of staff.