Maths teacher’s dismissal fair despite school’s failure to provide witness evidence of the appeal stage at the Employment Tribunal
Mrs Elmore was a maths teacher at Darland High School from 2002 until her dismissal on capability grounds in April 2015. Inspections carried out at the school in 2013 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. She failed to improve to the extent required by the school and dismissed her.
Mrs Elmore appealed but the appeal panel upheld the decision to dismiss but provided no reasons for doing so in their letter confirming the outcome of the appeal.
A claim for unfair dismissal was issued in the Employment Tribunal (ET). 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 concluding she had failed to reach the required standard. Therefore Mrs Elmore’s dismissal was procedurally and substantively fair.
Mrs Elmore appealed to the Employment Appeal Tribunal (EAT) who dismissed the appeal. They rejected Mrs Elmore’s argument a tribunal cannot conclude a dismissal is fair without hearing from a member of the appeal panel to explain the reasons for dismissing the appeal.
The EAT accepted Mrs Elmore’s dismissal effectively ended her teaching career and her appeal was not necessarily bound to fail. However, it held the tribunal had been entitled to reach the conclusion her dismissal was fair on the facts.
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 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 the non-statutory Acas Code of Practice 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.
For further information about taking an employee through a capability process and how this could affect your business, please get in touch with Sally Morris at email@example.com or on 01905 734032.