When an appeal against dismissal involves no new arguments or evidence, the Employment Appeal Tribunal (EAT) has held in Elmore v The Governors of Darland High School and anor, that the dismissal will be fair even if the appeal panel failed to provide its own reasons for dismissing the appeal.
Ms Elmore, who qualified as a teacher in 1984, starting teaching maths at Darland High School in 2002. After a report found that the school’s performance in mathematics was consistently lower than that of comparable schools, it appointed a new head of maths. Along with other members of staff, he expressed concern about Ms Elmore’s performance in the classroom. Their observations were subsequently compounded by the results of exams in January 2014 which showed that her class performed particularly poorly.
The school initiated its capability procedures to help her improve. After observing eight lessons, it deemed that five were “adequate”, three were “inadequate” and none were “good”. It therefore concluded that her teaching did not achieve the required standard and dismissed her. The appeal panel upheld that decision in a letter dated 27 April 2015, but failed to give its own reasons.
She brought a claim for unfair dismissal.
Dismissing the claim, the tribunal held that the school was entitled to conclude that Ms Elmore could not meet the standard required of a maths teacher – that one out of eight lessons observed within a 12-month period should be assessed as “good”. This was both “realistic and reasonable”, given that an outside body had assessed the school as being weak in maths.
Although the appeal panel had not set out its own reasons for dismissal, the tribunal concluded that, by upholding the original panel’s decision, it had implicitly accepted the same reasons for dismissal. Considering the procedure as a whole, the decision to dismiss was both procedurally and substantively fair and fell within the band of reasonable responses.
Ms Elmore appealed on the basis that, as the tribunal did not hear evidence from anyone on the appeal panel, she had been denied the opportunity to test the reasonableness of their thought processes and analysis in upholding the decision to dismiss her.
The EAT rejected Ms Elmore’s argument, holding that there was no legal requirement for an appeal officer to give evidence at a tribunal even if the appeal panel had not provided reasons for dismissing the appeal.
Instead, this was a fact sensitive question that inevitably depended on the circumstances of the particular case. So for instance, if new evidence or new arguments had been put forward at the appeal stage then a failure to provide reasons for the decision and a failure to hear from an appeal panel witness might well lead to questions as to whether the employer had discharged their “evidential burden”. In this case, however, there was no new evidence or arguments available to the appeal panel that had not been heard by the original panel.
In addition, minutes of the appeal hearing were produced and made available to Ms Elmore, as well as the tribunal, which indicated that the panel had explored all the relevant issues. Far from being a rubber-stamping exercise, it had clearly engaged with the issues at stake.
Finally, although the appeal panel could be criticised for not explicitly setting out its own reasons in its letter to Ms Elmore, the tribunal was entitled to infer from the wording that it upheld the dismissal for the same reasons as those relied on by the capability panel itself.
This is an unusual decision and no doubt one that is welcomed by employers, but it should not be taken for granted. This was a fact specific case whereby the appeal did not hear any new evidence. Employees will continue to challenge the fairness of a decision should employers fail to give reasons for the appeal outcome and to call appeal officers as witnesses at a tribunal.