Governing Body of Abergwynfi Infants School v Jones

Where a maintained school governing body has delegated budgetary powers, the statutory deeming provisions treat the governing body as the employer for unfair dismissal purposes. That remains so even where the Local Education Authority gives the notice of termination and the governing body has failed to follow the statutory dismissal procedure. The claim is therefore brought against the governing body, not directly against the authority. If the governing body is subsequently dissolved, its subsisting liabilities transfer to the authority under Schedule 22 to the Schools Standards and Framework Act 1988. The employment tribunal must assess unfairness and remedy by reference to the governing body’s position, subject to the statutory limits on enforcing reinstatement or re-engagement against the authority.

The claimant, a deputy head teacher, worked at an infants school that was closed and replaced by a new primary school. After she unsuccessfully applied for the corresponding post, the Local Education Authority gave notice terminating her employment for redundancy. The governing body was dissolved when the old school closed.

She presented an unfair dismissal claim against both the governing body and the authority. The Employment Tribunal refused applications to strike out the claims. The appeal concerned whether the authority was directly liable as employer, or whether liability was attributed initially to the governing body and then transferred to the authority on dissolution.

1. The appeal was allowed in part. The claim against the dissolved governing body could not continue against it as a respondent. Liability for any unfair dismissal and consequential remedy transferred to the authority.
2. Under article 3 of the Education (Modification of Enactments Relating to Employment)(Wales) Order 2006, the governing body was deemed to be the employer for the purposes of the Employment Rights Act 1996. Article 3(1)(d) extended the concept of dismissal to dismissal by the authority following a governing-body determination under regulation 17(1) of the Staffing and Maintained Schools (Wales) Regulations 2006, but did not confine dismissal to cases complying with that procedure.
3. The Court of Appeal’s reasoning in Kent County Council v Green established that no proper distinction should be drawn between actual and constructive dismissal for this purpose. The same approach applied here. The governing body was the deemed employer when notice was given, although the authority physically gave the notice.
4. By article 6(2), the complaint therefore lay against the governing body. The right to present an unfair dismissal complaint after notice had been given but before its expiry was sufficient to fix the relevant position before dissolution.
5. On dissolution, paragraph 7 of Schedule 22 to the Schools Standards and Framework Act 1988 transferred the governing body’s subsisting liability to the authority. The tribunal must determine unfairness and remedy by examining the governing body’s position. An order for reinstatement or re-engagement against the governing body was not enforceable against the authority.
6. The judge’s observations concerning the policy behind the legislation and dual employers in tort were expressly obiter.

• Employment Appeal Tribunal: allowed the appeal to the extent that the governing body was dismissed from the claim and liability for any unfair dismissal transferred to the Local Education Authority. The case was remitted to the Cardiff Employment Tribunal for a full merits hearing on that basis.
• Employment Tribunal: refused to strike out the claims against either respondent and directed that they proceed to a full merits hearing.