Appeal No. EAT/291/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 2 February 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR K M HACK JP

	MISS A MADDOCKS OBE

MR J WARD	APPELLANT

(1)  CORNWALL COUNTY COUNCIL	RESPONDENTS
(2)  THE GOVERNORS OF CALLINGTON SCHOOL

	Transcript of Proceedings

	JUDGMENT

Revised	 

	APPEARANCES

For the Appellant	MR STUART WILLIAMS
	(OF COUNSEL)
Messrs. Robin Thompson & Partners
18 Lawford Street
Bristol BS2 0DZ

	

	MR JUSTICE MUMMERY (PRESIDENT):  This is the preliminary hearing of an Appeal against the decision of the Industrial Tribunal held at Plymouth on 20 and 21 January 1993.  The reasons were notified to the parties on 18 February 1993.  The majority of the Tribunal dismissed an application for unfair dismissal brought by a school teacher, Mr Ward, against the Cornwall County Council, who were his employers, and also against the Governors of Callington School.

	Mr Ward was dissatisfied with the decision and appealed to this Tribunal by a notice of appeal dated 25 March 1993.  The Appeal is on a limited point relating to the interpretation of the Education (School Government) Regulations 1989 in relation to the composition of Committees established to deal with delegated functions concerning dismissal of staff.

	At this preliminary hearing we have to decide where there is an arguable point of law on the interpretation of those Regulations.  The point argued by Mr Williams on behalf of Mr Ward arises in this way.  By a notice of application presented on 30 September 1992, Mr Ward complained of unfair dismissal and unfair selection for redundancy.  He had been a teacher at the Callington Community School from 1 September 1982 until 31 August 1992.  

	He said in his complaint that he had been given notice of the grounds of redundancy on 26 May 1992, having been previously warned in June 1991 of possible redundancy.  He stated that his redundancy was declared and confirmed before the Governors of the School had set a budget for the financial year, April 1992 to April 1993.  He did not believe that the subcommittees which met to decide on redundancies at the School were given full and fair information concerning the department in which he worked.  If they had been properly acquainted with the details, he did not believe that the department would have been chosen nor does he believe that he would have been nominated.  He considered his dismissal unfair and the method and information used to select him for redundancy unfair to him.

	Cornwall County Council in their notice of appearance dated 20 October 1992 accepted that he had been dismissed as a school teacher in the design technology department of the School with effect from 31 August 1992 on the grounds of redundancy.  It was pointed out in particular, that Mr Ward and his representative had been given an opportunity to make representations to independent subcommittees of the governing body against his selection for redundancy.  Full consideration was given to all the matters raised on his behalf.  They included proper consideration of his candidature for a vacant maths-physics post within the School.

	When the matter came before the Industrial Tribunal there was argument on the only point relevant to this Appeal, namely the procedure concerning the Appeal by Mr Ward against the decision of what is described as the First Committee.

	To understand the point, it is first necessary to refer to the Education (School Government) Regulations 1989, Regulation 26, which concerns the establishment of Committees.  Regulation 26(5) reads as follows:

	"(a)	A Committee to which any functions are delegated under regulation 25(3) shall include not less than three members of the governing body, and where a committee is established to take any initial or preliminary decisions as to the dismissal of any member of staff (referred to below in this paragraph as a 'first committee'), no member of that committee shall take part in the proceedings of any committee established to consider any appeal against that decision (referred to below in this paragraph as an 'appeal committee'); and

	(b)	the membership of an appeal committee shall include no fewer members of the governing body than that of the first committee, the decision of which is subject to appeal;"

	There is a proviso.  Subrule 6 provides:

	"A committee to which any functions are delegated under regulation 25(4) shall include not less than three members of the governing body, none of whom shall be the head teacher."

	The procedure followed in this case was that the decision to select Mr Ward for redundancy was made by the First Committee.  There was then an appeal to the Second Committee.  In paragraph 31 of its decision, the Industrial Tribunal pointed out that under the Regulations, there must be on the Appeal Committee be at least as many Governors as on the First Committee.  

	The Tribunal found these facts:  the First Committee had two meetings, one on 31 March 1992.  That had four members.  The second on 14 April had three members.  The Second Committee, or the Appeal Committee, which met on 21 May, had three members.  

	The argument was that the decision, which was appealed to the Appeal Committee, was made by the First Committee on 31 March.  As there were four members of that Committee, the Appeal Committee was not properly constituted, because it did not have sufficient members.  If, on the other hand, the decision, which was the subject of the appeal by Mr Ward, was made at the second meeting on 14 April, the Appeal Committee was properly constituted because there were three members at the meeting of 14 April.

	The Tribunal referred to the details of the two meetings.  As to the first meeting on 31 March, the minute reads:  

	"That having due regard to the agreed criteria Mr John Ward should be selected as the person to be made redundant."

	The Tribunal comment:

	"That certainly has an air of finality about it but everybody knew that there would be another meeting (that is, another meeting of the First Committee] when representations would be heard."

	A letter was sent to Mr Ward on 2 April telling him that there had been unanimous agreement on a proposal that he should be made redundant from 31 August.  He was invited to respond within five days.  The result was that there was a second meeting on 14 April.  The minute of that meeting reads:

	"It was unanimously resolved that Mr John Ward should be finally selected for redundancy."

	On those facts the majority of the Tribunal concluded that the decision which was the subject of appeal to the Appeal Committee on 21 May, was not made until 14 April.  There were three governors present.  As there were three present at the hearing of the Appeal Committee, the Appeal Committee was properly constituted.  One member disagreed.  He took the view that the decision was made at the first meeting on 31 March, although they were willing to receive representations and willing to change their minds.  Since there were four members present, the Appeal Committee was not properly constituted.

	The Tribunal concluded:

	"Taking all those points into consideration the majority view is that this was not an unfair dismissal.  [The minority] would have found it unfair on the question of the appeal.  Had we all taken the same view we would have had to consider whether there would have been a difference when it came to assessing the compensation.  The probability is that we would have decided that in the circumstances, even though it was technically unfair in this respect, there would be no compensation because the result inevitably would have been the same.  Assuming that a fourth member was appointed and disagreed, there would simply have been a majority decision of the appeal panel."

	The appeal against the majority decision has been presented by Mr Williams.  Mr Williams says that the Industrial Tribunal misdirected itself in law by asking itself the wrong question.  It asked itself at what point was the decision made to dismiss Mr Ward for redundancy.  He submitted that the Industrial Tribunal wrongly failed to consider and answer the true question, which is posed by the wording of Regulation 26(5)(b), namely, how many members of the governing body were members of the First Committee.  If they had asked themselves this question they would have answered that there were four members of the First Committee.  They attended the meeting on 31 March.  If that was the right question to ask, then the Appeal Tribunal was not properly constituted.

	Mr Williams amplified his arguments orally with the help of a skeleton argument.  He submitted that the appeal turned on the question whether the Appeal Committee established under Regulation 26(5)(b), which dismissed Mr Ward's appeal against the decision to make him redundant, was properly constituted.  The skeleton argument then refers to the facts, of the meetings of 31 March and 14 May and to the presence of three people at the Appeal Committee of 21 May.

	The substance of Mr Williams' submissions was that the Tribunal had regarded as two separate decisions at the two separate meetings what were in substance one decision, taken by the First Committee, which consisted of four members.  We are unable to accept that that is an arguable way of construing these regulations.  

	It is necessary to go back to the Regulations.  The crucial question under the Regulations is what is the decision which is subject to appeal?  There appear to us, on the findings of fact made by the Tribunal, to have been two decisions.  The first may be called a preliminary or initial decision, made on 31 March 1992, to select Mr Ward for redundancy.  That was subject to representations from him or made on his behalf.  Those representations were made on 14 April.  What was decided on 14 April was described in the minute as a unanimous resolution that he should finally be selected for redundancy. 

	There was then an appeal.  The appeal was from that decision.  It is not, on the proper construction of these regulation, possible to say that the decision made on 14 April 1992 was really part of an earlier decision, made on 31 March 1992.  There was not one decision - there were two decisions.  The decision appealed against was the second.  The number of governors present at the meeting which took the final decision was three.  The Appeal Committee was, therefore, properly constituted.

	There is no any arguable point of law in this case.  The appeal will therefore be dismissed.