Jones v Neath Port Talbot County Borough Council

The majority held that an appellate court should not decide difficult questions about statutory deeming provisions in the abstract where the Employment Tribunal has made no findings of fact. It was arguable that a dismissal purportedly made by a local education authority without a governing-body notification was not deemed to be a governing-body dismissal, and the earlier constructive-dismissal authority did not foreclose that issue. The tribunal should therefore investigate the facts with proceedings continuing against the governing body in the name of the Education Authority as successor, and against the Authority directly. The majority left liability, the effect of the statutory scheme and the relevance of redeployment conduct for the tribunal. The dissent would have treated the governing body as the sole proper respondent.

The appellant, a deputy head teacher, was dismissed after her infant school was closed and a replacement school was established. She brought unfair dismissal proceedings against the governing body and the local education authority. The Employment Tribunal refused to strike out either claim.

On appeal, the Employment Appeal Tribunal held that the governing body alone was the proper respondent and that the Education Authority was involved only because it had inherited the governing body’s liabilities under the School Standards and Framework Act 1988, Schedule 22 paragraph 7. The appellant appealed. The assumed issues were whether the Education Authority had dismissed without a governing-body notification under Regulation 17 and whether its alleged failure to seek alternative employment could support unfair dismissal or another direct claim. The central question was whether proceedings should continue against the Authority directly as well as in the governing body’s name.

1. Majority outcome. Pitchford and Carnwath LJJ allowed the appeal and restored the Employment Tribunal’s order. The proceedings were to continue against the governing body in the name of the Education Authority, as successor to its liabilities, and against the Education Authority directly. The Tribunal was to determine whether either body was liable and, if necessary, against which body an order should be made.
2. The case reached the Court of Appeal without findings of fact. The majority considered it unsafe to resolve difficult construction issues concerning the Education (Modification of Enactments Relating to Employment) (Wales) Order 2006 and the Staffing of Maintained Schools (Wales) Regulations 2006 in the abstract. On the assumed facts, it was arguable that a dismissal by the Education Authority without a governing-body notification was not deemed to have been given by the governing body under Articles 3 or 4. The decision in Kent County Council v Green, [2004] EWCA Civ 11, concerned constructive dismissal under equivalent legislation and did not foreclose the present argument.
3. Pitchford LJ rejected the conclusion that the governing body had adopted the dismissal merely because it could have prevented it and later acted on the assumption that it was effective. That question required evidence. Carnwath LJ similarly considered it unrealistic to impose notional responsibility on a governing body by inaction where the practical circumstances remained unresolved.
4. The majority did not decide whether the Education Authority was directly liable, whether its dismissal was lawful, or whether its redeployment conduct could affect the fairness of the dismissal. Those issues were left to the Employment Tribunal on the evidence.
5. Elias LJ dissented. He would have dismissed the appeal, holding that the governing body alone was the proper respondent for the dismissal, even without a notification, and that the Education Authority’s independent redeployment failures could not affect the fairness of a dismissal deemed to be by the governing body.

1. Court of Appeal (Civil Division): The appeal was allowed by majority. The Employment Tribunal’s order concerning joinder was restored, with the direct-liability issues left open for determination on the facts.
2. Employment Appeal Tribunal: In UKEAT/0083/10, HH Judge Peter Clark held that the governing body alone was the proper respondent and that the Education Authority was a respondent only because it had assumed the governing body’s liabilities.
3. Employment Tribunal: The employment judge refused to strike out the claims against either the governing body or the Education Authority.