Jones v Neath Port Talbot County Borough Council

The Court of Appeal considered whether, for the purposes of an unfair dismissal claim, a governing body of a maintained school (a body with delegated employment powers under the Education (Modification of Enactments Relating to Employment) (Wales) Order 2006) is to be treated as the sole employer and therefore the sole proper respondent, or whether the local education authority (LEA) can be directly liable in its own right. The court analysed Articles 2, 3, 4 and 6 of the 2006 Order together with Regulation 17 of the Staffing of Maintained Schools (Wales) Regulations 2006 and section 35(2) of the Education Act.

The lead judgment (Elias LJ) held that where a governing body has employment powers the statutory scheme deems that body to be the employer for the purposes of unfair dismissal and related proceedings; the fairness of a dismissal is to be judged by reference to the actions (or inaction) of the governing body and not by independent failings of the LEA. Accordingly, an LEA’s failure to seek alternative employment for a redundant teacher cannot of itself render a governing-body-instigated dismissal unfair, and the LEA is only in the frame where it is exercising powers outside those conferred on the governing body or where it has inherited liabilities as a successor.

The majority (Pitchford LJ and Carnwath LJ), however, considered it inappropriate in the absence of factual findings to conclude at this stage that the LEA could not be directly liable. The Court therefore allowed the appeal and restored the Employment Tribunal order permitting the LEA to remain a respondent so that the factual issues could be determined.

Background and nature of claim

The appellant, formerly deputy head teacher at Abergwynfi Infants School, brought an unfair dismissal claim. The school was to be replaced by a new primary school; head and deputy posts were publicly advertised and the appellant was unsuccessful. The LEA issued notice of dismissal by reason of redundancy. The claimant alleged unfair dismissal and also raised concerns about the LEA’s handling of redeployment and possible sex discrimination.

Procedural history

• The Employment Tribunal refused applications to strike out the claim against both the governing body and the LEA.
• On appeal to the Employment Appeal Tribunal (HH Judge Peter Clark) the EAT concluded the governing body would have been the proper respondent and that the LEA was respondent only because it had succeeded to the governing body’s liabilities; the appellant appealed to the Court of Appeal.

Issues framed

• Whether, under the 2006 Order and related regulations, the governing body is to be treated as the sole employer/respondent for all dismissal claims relating to staff at a school with a delegated budget.
• Whether, and in what circumstances, the LEA can be directly liable (rather than merely a successor) for an alleged unfair dismissal.
• Whether failures by the LEA in seeking alternative employment could be relevant to the fairness of a dismissal deemed to be by the governing body.

Court’s reasoning

Elias LJ undertook detailed statutory construction of the 2006 Order and the Staffing Regulations 2006, observing that Articles 3 and 4 treat the governing body as the employer when it acts in exercise of employment powers and Article 6 generally requires proceedings to be brought against the governing body. He concluded that the fairness of a dismissal is to be judged by reference to what the governing body did or failed to do, and that the LEA’s independent failings (for example in redeployment) cannot of themselves render the governing-body-instigated dismissal unfair. He relied on prior authority such as Kent County Council v Green, Pinnington and Clifton Middle School v Askew to support the principle that the governing body is the focus for fairness inquiries.

Pitchford LJ and Carnwath LJ dissented on disposal. They considered the matter premature to decide in the abstract without factual findings. They favoured restoring the Employment Tribunal’s order so that the LEA could remain a respondent and the tribunal could determine the facts and whether the LEA was directly liable or was only a successor to the governing body.

Practical outcome: the majority allowed the appeal and restored the tribunal order permitting the LEA to be a respondent so that factual issues about notification, exercise of employment powers and redeployment could be resolved.

Appeal allowed. The majority concluded it was inappropriate to rule at this abstract stage that the LEA could not be directly liable; factual findings were required and the Employment Tribunal’s order permitting the LEA to remain a respondent should be restored. The lead judgment emphasised that as a general principle, where governing bodies exercise delegated employment powers they are to be treated as the employer for unfair dismissal purposes and the fairness inquiry focuses on the governing body, but the majority required a factual investigation before excluding direct LEA liability.

On appeal from the Employment Appeal Tribunal (HH Judge Peter Clark) UKEAT/0083/10, following an Employment Tribunal decision refusing to strike out the claims. Determined by the Court of Appeal, [2011] EWCA Civ 92.