Tavistock And Summerhill School & Anor v Richards & Ors

A dismissal remains by reason of redundancy where that was the genuine reason when notice was given and a later offer to renew employment is made before termination. Under section 141 of the Employment Rights Act 1996, the material question is whether an employee unreasonably refused suitable alternative employment.

A redundancy dismissal may nevertheless be unfair under section 98(4) where suitable alternative employment was available but the employer took insufficient steps to offer it. In determining contractual terms, a tribunal may decide from the parties’ true agreement that an orally agreed term prevails over an inconsistent written term.

Consultation about potential redundancies is distinct from management discussions aimed at saving an undertaking.

Eight former employees of an independent preparatory school were given notice of dismissal when the school was expected to close because of falling pupil numbers. Parents later secured the school’s continuation. Six employees received late offers of continuing employment; the acting deputy head did not receive one before termination, and the head teacher received none.

The Employment Tribunal held that all eight employees were entitled to redundancy payments and protective awards. It also upheld the head teacher’s unfair-dismissal and notice-pay claims, and awarded the acting deputy head an additional month’s acting-up payment. The employers appealed five findings.

The central issues were the reason for dismissal at the effective date of termination, the effect of late offers of renewed employment, the true contractual notice term, consultation, and whether the acting-up award was perverse.

1. The appeal was allowed only in respect of the acting-up payment. The Employment Tribunal’s award to the seventh claimant was reduced by £312.66. The remainder of the appeal was dismissed.
2. A genuine redundancy reason existed when notice was given. The late offers to renew the first six claimants’ unchanged employment did not alter that reason. Section 141 of the Employment Rights Act 1996 expressly addresses an offer made after notice of redundancy but before termination. Although the offers were suitable, the Tribunal was entitled to find that the claimants had not unreasonably refused them, since they had already made alternative arrangements.
3. The head teacher’s dismissal was unfair. Redundancy was a potentially fair reason, but the employer had failed to take sufficient steps to identify and offer her available alternative employment, namely her own head teacher role. Alternatively, if the reason had changed during notice, no other potentially fair reason had been established.
4. The Tribunal’s conclusion that the acting deputy head was entitled to an August 2011 supplement was perverse. Its finding was that the supplement continued only until new deputy heads were appointed. They had been appointed by late June, and no finding supported payment for August.
5. Applying Autoclenz v Belcher, the Tribunal was entitled to determine the terms actually agreed. It could therefore find that the head teacher had orally agreed entitlement to two terms’ notice despite a later written contract providing for a probationary one-term entitlement.
6. The protective awards stood. Discussions between senior staff and governors about saving the school did not constitute consultation with employees about prospective job losses for section 188 purposes.

• Employment Appeal Tribunal: Allowed the employers’ appeal only as to the unauthorised-deductions award for the acting-up supplement, and otherwise dismissed it.
• Employment Tribunal (Havant): By a judgment promulgated on 13 February 2013, upheld redundancy-payment claims, protective awards, the head teacher’s unfair-dismissal and notice-pay claims, and the acting deputy head’s acting-up claim.