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Is an employee’s dismissal fair if the employer has failed to call witness evidence of the appeal stage at the hearing?

Napthens - July 27th 2017


Following the case of Elmore v The Governors of Darland High School and another UKEAT/0209/16, the EAT were tasked with assessing whether a dismissal could be construed as unfair if an employer had failed to call witness evidence of the appeal stage at the hearing. As many will be aware the test for determining the fairness of a dismissal consists of 3 key elements, namely:

  • Whether the employer believed the employee was guilty of misconduct;
  • Whether there were reasonable grounds for the employer to have held that belief; and
  • Whether the employer had carried out as much investigation as was reasonable in the circumstances of the particular case.

If all 3 limbs of the test are satisfied, then a dismissal is likely to be considered fair.

The Facts

The Claimant, Ms Elmore had been employed in the capacity of a Maths Teacher at Darland High School from 2002 until her subsequent dismissal on grounds of capability in April 2015.

During the course of the Claimant’s employment, inspections highlighted that the School’s performance in maths was consistently lower than others Schools and this was supported by poor examination results in January 2014. As a result, the School invoked its capability process and subsequently dismissed the Claimant on grounds of capability.

The Claimant appealed against the decision, but the dismissal was upheld, however, no rationale was outlined in the Claimant’s appeal outcome letter. The Claimant therefore pursued a claim of unfair dismissal in the Tribunal, however, no member of the appeal panel attended the hearing.

The Tribunal concluded that a fair procedure had been followed, including the offer of support to the Claimant and that as the Claimant had failed to reach the required standard, there were reasonable grounds for dismissal. The Tribunal also concluded that whilst there was no definitive reasons provided in the appeal outcome letter, it could be inferred by the decision to uphold the dismissal, that their views were the same as the dismissal panel.

The Claimant appealed to the EAT, alleging that it was an error of law for the Tribunal to come to this conclusion in the absence of any such evidence.

Decision by the EAT

The EAT dismissed the appeal. Whilst it was accepted that the Claimant’s dismissal effectively ended the Claimant’s teaching career, there was nothing to prevent the Tribunal concluding that her dismissal was fair on the facts. The EAT made particular reference to the following points of evidence, namely:

  1. The Head of Maths who had provided evidence at the hearing, highlighted that following 8 observations of the Claimant, 5 classes were inadequate, 3 were adequate and none were good.
  2. A member of the capability hearing panel had given evidence at the hearing and it was accepted that the Claimant’s dismissal was due to her failure to achieve the necessary school targets.
  3. There was no suggestion that the appeal panel was improperly constituted, biased or behaved improperly.

The EAT held that all the evidence should be looked at in context, and unless there was information to suggest that the appeal had been approached in a bias or improper way, it was permissible for the Tribunal to conclude that the appeal panel upheld the dismissal for the same reasons as the dismissing panel.

Note for Employers

Whilst appeal officers/panellist members are usually called to a hearing to provide their evidence to a Tribunal, this case highlights that a failure to call a witness will not always be fatal. That being said, the case should not be used as a safety blanket for employers to rely upon, as this will depend on the circumstances of the claim, the nature of the appeal and the detail and approach taken in respect of the other evidence relating to the individual’s dismissal.

Equally, although an inference was drawn as to the rationale for the appeal in this case, this does not necessarily extend to future cases and therefore this is an important reminder to employers to make sure that the rationale for their decision is clearly identified in the outcome letters, both for clarity and to serve as a paper trail for the decisions taken.  This can also serve as a useful document where perhaps an Appeal Officer has subsequently left the business and unable to give evidence at a Tribunal. As a result, you will have a document detailing an explanation as to how that decision was reached and why.

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