Elmore v Darland High School & Anor

Procedural fairness in an unfair-dismissal case requires examination of the process as a whole. An Employment Tribunal may infer that an appeal panel upheld a dismissal for the original panel’s reasons, despite an unreasoned appeal outcome and no appeal-panel witness, where the appeal repeated the same evidence and arguments, the hearing minutes show genuine engagement, and there is no evidential basis beyond speculation for alleging an improper process.

There is no universal rule that an employer must call an appeal officer whenever appeal reasons are absent. The need for such evidence is fact-sensitive. The position may differ where the appeal introduces fresh evidence or new arguments.

The claimant, a long-serving mathematics teacher, was dismissed under the school’s capability procedure after failing to meet a reasonable target for teaching performance. The Employment Tribunal found both the capability procedure and dismissal fair.

On appeal, the claimant challenged only procedural fairness. The appeal panel’s letter upheld the dismissal but gave no express reasons, and no panel member gave evidence before the Employment Tribunal. The central issue was whether the Tribunal was entitled to find that the internal appeal was genuine and that the dismissal process as a whole was fair.

1. Appeal dismissed. The Employment Tribunal was entitled to find the dismissal procedurally fair. Its inference that the appeal panel upheld dismissal for the same reasons as the capability panel was permissible on the evidence.

2. The capability hearing had been found robust, objective, impartial and balanced. The employee had been able to challenge the evidence and the reasons for dismissal. Her appeal advanced neither fresh evidence nor new arguments; it re-ran the case made at the original hearing.

3. The appeal minutes showed that the panel questioned the employee about the required teaching standard, her performance and the prospect of future improvement. That engagement was inconsistent with a sham or rubber-stamping exercise. There was no allegation of defective constitution, bias or improper conduct, and no evidential basis, other than speculation, for inferring irrelevant or irrational considerations.

4. Although the unreasoned appeal letter was open to criticism, it recorded the original grounds for dismissal. In the circumstances, the Tribunal could infer that the appeal panel adopted those grounds when it upheld the dismissal.

5. The EAT also stated, in case that inference were wrong, that no rule requires an appeal officer to give evidence in every unfair-dismissal case where appeal reasons are absent. Whether such evidence is required depends on the facts. The absence of reasons and appeal-panel evidence may carry greater significance where the appeal raises new evidence or arguments.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s conclusion that the capability dismissal was fair was upheld.
• Employment Tribunal: Wrexham Employment Tribunal, Employment Judge P Davies; reasons promulgated on 25 April 2016. The claim of unfair dismissal was dismissed.