Gwynedd Council v Shelley Barratt and Ioan Hughes
| Jurisdiction | England & Wales |
| Judge | Lord Justice Nugee,Lord Justice Bean,Lady Justice Asplin |
| Judgment Date | 02 September 2021 |
| Neutral Citation | [2021] EWCA Civ 1322 |
| Docket Number | Case No: A2/2020/1458/EATRF |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1322
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE CHOUDHURY, MRS G SMITH AND MR M WORTHINGTON
UKEAT/0206/18/VP
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Lady Justice Asplin
and
Lord Justice Nugee
Case No: A2/2020/1458/EATRF
Owain James (instructed by Gwynedd Council Legal Services) for the Appellant (Defendant)
Claire Darwin (instructed by Mark Underhill, NASUWT) for the Respondents (Claimants)
Hearing date: 28 July 2021
Approved Judgment
The Claimants, Shelley Barratt (formerly Shelley Thomas) and Ioan Hughes, are former employees of the Appellant (“the Council”), which is the local education authority for the county of Gwynedd. Both were employed by the Council as teachers of physical education at Ysgol y Gader, a community secondary school (11–16) in Dolgellau maintained by the Respondent; were dismissed on 31 August 2017 upon the school's closure; and are members of the National Association of Schoolmasters/Union of Women Teachers (NASUWT).
Ms Barratt and Mr Hughes brought claims for unfair dismissal against Gwynedd Council. These were heard together by Employment Judge Tobin (sitting alone) at Wrexham on 4 July 2018. The Claimants were represented by Mr Adkins, an official employed by NASUWT; the Council was represented by its solicitor, Mr Edwards. By a reserved decision sent to the parties on 1 August 2018 EJ Tobin upheld the claims for unfair dismissal.
Unusually, the case was heard in the ET on the basis of a statement of agreed facts. Paragraphs 3–17 read as follows:-
“3. On 19 May 2015, having followed the relevant statutory procedures the respondent's cabinet resolved to implement a reorganisation of its primary and secondary education provision in the Dolgellau area.
4. This reorganisation involved the discontinuance (i.e. permanent closure) on 31 August 2017 of Ysgol y Gader as well as all 9 primary schools within the secondary school's catchment, and in their place the establishment on 1 September 2017 of a new community all-through school (3–16) named Ysgol Bro Idris.
5. By the same resolution on 19 May 2015 the respondent approved the establishment of a temporary governing body (“TGB”) for Ysgol Bro Idris. That TGB determined the staffing structure of the new school and appointed its teachers, pursuant to powers under regulations 12 and 36 of the Staffing of Maintained Schools (Wales) Regulations 2006 (“Staffing Regulations”).
6. Between 19 May 2015 and 1 September 2017 the respondent kept informed affected schools, including the claimants, on the progress of the reorganisation process, including proposed changes and staffing implications. This included inter alia informing affected staff:
• that all existing contracts of employment would be terminated as of 31 August 2017.
• that the staffing of the new school would be determined by an application/interview process,
• that unsuccessful candidates would be made redundant as of 31 August 2017 unless they were successfully redeployed at a suitable alternative post within the respondent authority,
• the respondent also kept trade unions updated regularly via meetings with its Unions Forum.
7. Each claimant applied [for] posts at Ysgol Bro Idris: a. Head of Health and Wellbeing. b. Physical Education Teacher.
8. Both claimants were interviewed for both posts, on 15 December 2016 for the Head of Health and Wellbeing, and on 25 January 2017 for the Physical Education Teacher. Both claimants were unsuccessful. In each case, the posts were offered to a successful third candidate.
9. By letter to IH on 9 May 2017 and to SB on 24 May 2017 the respondent gave written notice of termination on the grounds of redundancy with expiry on 31 August 2017.
10. Following receipt of these letters, the claimants presented representation via their union representative to the respondent, querying that they had not been given the opportunity to make representations or appeal to the Governing Body of Ysgol Bro Idris [sic – but it is agreed that this reference should be to Ysgol y Gader] in respect of the decision to dismiss, pursuant to regulation 17 of the Staffing Regulations.
11. In response, on 18 August 2017 the Chair of the Governing Body of Ysgol y Gader sent a letter to the claimants' union representative apologising that no such opportunity had been given in this instance. The same letter also pointed out that the failure to allow an appeal did not cause any disadvantage to the claimants, that an appeal would have made no difference as the dismissals were caused by the closure of the school and that no appeal panel would have been able to reverse the fact of closure and thus avoid dismissals.
12. In September 2017 Ysgol Bro Idris opened. Ysgol Bro Idris operates its school from 6 sites, all of which were previously occupied by schools which were discontinued as a result of reorganisation. Primary school education is provided from 5 sites, each one serving a separate catchment area. Secondary education is provided from a single site formerly occupied by Ysgol y Gader.
13. On 4 September 2017 the claimants' union representative emailed the respondent's Senior HR Adviser requesting the authority's response to Ysgol y Gader's failure to follow regulation 17 of the staffing regulations and that the authority offer to pay compensation for this failure.
14. In October 2017 the respondent paid the claimants their redundancy payments. SB received £4,401.00 and IH received £7,824.00.
15. On 3 October 2017 the respondent emailed the claimants' union representative, in response to the email of 4 September 2017. The respondent stated that the claimants were not disadvantaged in any way by not [having] been allowed to submit an appeal under regulation 17 of the Staffing Regulations as such an appeal would not have been able to reverse the decision to close the school. The respondent also stated that it believed that the staff were properly compensated by the redundancy payment.
16. On 23 October 2017 the TGB ceased to exist and the Governing Body of Ysgol Bro Idris was formally incorporated. The employment liabilities of the former are transferred to the latter.
17. The parties acknowledge that:
a. prior to dismissal, the claimants were entitled to make representation and appeal to the Governing Body of Ysgol Bro Idris [again this should read “of Ysgol y Gader”] in respect of the decision to dismiss, pursuant to regulation 17 of the Staffing Regulations;
b. the claimants were not given an opportunity to make such representations or lodge an appeal;
c. without prejudice to the question of whether the dismissal is fair, the claimants were dismissed on the grounds of redundancy;
d. exercising the statutory right of appeal under regulation 17 would not have made any difference to the outcome. Had the claimants been given such an opportunity, they would still have been dismissed on the grounds of redundancy.”
It is convenient to refer, as counsel did before us, to Ysgol y Gader as “School 1” and Ysgol Bro Idris as “School 2”.
In the ET1s lodged by NASUWT on behalf of each Claimant the Council had been named as the First Respondent and the governing bodies of the two schools as Second and Third Respondents. However, it is common ground, as it was before the ET and EAT, that the Claimants were employed by the Council, not by the governing body of either school; the decision to dismiss was in law that of the Council alone; and that accordingly the Council was the correct Respondent to the claims for unfair dismissal. At paragraph 23 of his decision EJ Tobin, after referring to the decision of this court in Abergwynfi Infants School Governors v Jones [2011] EWCA Civ 92 said:-
“This case confirms Mr Edwards' contention that the respondent is capable of being directly liable for the claimants' dismissal in similar circumstances. I am not sure that this issue was still in dispute at the hearing because the respondent accepts that it is the correct – and only – party to these proceedings and at the hearing Mr Adkins raised no dispute in this regard.”
Community schools
Community schools in England and Wales were established by Part 3 of the Education Act 2002 (“the 2002 Act”). They are maintained by funds provided by local authorities. Section 19(1) of the 2002 Act provides that every maintained school shall have a governing body, which is a body corporate constituted in accordance with regulations. The conduct of a maintained school is under the direction of the governing body: s 21 of the 2002 Act.
The governing body of a community school in Wales must consist of certain prescribed categories of governors (for example staff governors and parent governors); and must include five local authority governors.
While at some types of school, for example voluntary aided and foundation schools, teachers are directly employed by the governing bodies of those schools, in community schools the teachers are employed by the relevant local authority. Section 35(2) of the 2002 Act provides that:
“Any teacher or other member of staff who is appointed to work under a contract of employment at a school to which this section applies is to be employed by the local authority.”
Section 98(4) of the 1996 Act deals with the fairness of dismissals. It provides:
“(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a...
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