Anderson v Chesterfield High School

An employer may have some other substantial reason for dismissal where it reasonably concludes that an indefinite arrangement to pay an employee from public funds without any services in return is inequitable, unsustainable and liable to attract criticism. That conclusion may fall within the range of reasonable responses.

A Polkey reduction may be 100% where the tribunal is entitled on the evidence to find that a fair consultation would inevitably have led to dismissal. A reduction for contributory conduct may also be just and equitable where an employee culpably fails to discuss a material change affecting an unusual employment arrangement.

The claimant had remained employed by a school while undertaking full-time local-government roles. Following the school’s conversion to academy status, it paid him for limited annual leave and retained his post although he had provided no services since 2010.

The Employment Tribunal held that the school had dismissed him for some other substantial reason. It found the dismissal procedurally unfair, but made a 25% reduction to the basic award for contributory conduct and a 100% Polkey reduction to compensation. The claimant appealed those deductions and challenged the identification of the decision-maker and reason for dismissal.

The central issue was whether the Tribunal had been entitled to find that a fair procedure would inevitably have resulted in dismissal and that the claimant’s conduct justified a contribution reduction.

1. Appeal dismissed. The Employment Tribunal was entitled to uphold the unfair-dismissal complaint because the procedure was deficient, while finding that the substantive reason for ending the employment relationship was potentially fair.
2. The decision to dismiss was made by the Governors at their meeting on 12 September 2012 and was communicated by the Chair’s letter of 13 September. The head teacher lacked authority and did not purport to dismiss. His earlier stoppage of pay and the issue of a P45 did not itself dismiss the claimant, although it might have amounted to a repudiatory breach had the claimant elected to treat it as such.
3. The Tribunal was entitled to find that the school reasonably regarded the continued arrangement as inequitable and unsustainable. It involved a publicly funded school paying an elected office-holder, for an indefinite period, despite receiving no services and no tangible benefit for its pupils. The risk of public criticism and the instability caused by retaining the post could properly constitute some other substantial reason for dismissal.
4. The 100% Polkey deduction was sustainable. On the Tribunal’s findings, a proper consultation would not have altered the school’s decision to end both the payments and the employment relationship. The finding that fair dismissal would inevitably have occurred was a permissible finding of fact.
5. The 25% contribution reduction was also justified. The claimant’s failure to consult the school before committing to a four-year mayoral office could reasonably be characterised as culpable and blameworthy conduct in the context of this exceptional arrangement. It was open to the Tribunal to find that the conduct contributed to dismissal and that a reduction was just and equitable.

• Employment Appeal Tribunal: Appeal dismissed: the Tribunal’s 100% Polkey deduction and 25% contribution reduction were upheld.
• Employment Tribunal, Manchester: Decision sent to the parties on 28 January 2014. The unfair-dismissal claim succeeded because the procedure was unfair, but the Tribunal made the deductions challenged on appeal.