Education - Local government - Addition of parties - Boards of governors

Jones v Neath Port Talbot County Borough Council: CA (Civ Div) (Lords Justices Carnwath, Elias, Pitchford): 9 February 2011

The appellant deputy head teacher (J) appealed against a decision ([2010] ICR 1000) of the Employment Appeal Tribunal that the second respondent local education authority (N) was not potentially directly liable for her unfair dismissal.

J’s infants school had closed and become part of a new primary school. J unsuccessfully applied for a similar post at the new school and was dismissed for redundancy.

She claimed unfair dismissal against the first respondent governing body (G) and against N, on the basis that, as G no longer existed following the closure of the infants school, her dismissal had to be treated as being by N.

J also claimed that, contrary to regulation 17 of the Staffing of Maintained Schools (Wales) Regulations 2006, N had dismissed her without having been notified by G that it should do so.

G and N applied unsuccessfully for the claim to be struck out.

N had argued that, under the Education (Modification of Enactments Relating to Employment) (Wales) Order 2006, any liability lay with G, as under article 3 the governing body was treated as the employer whenever it was exercising its employment powers.

G contended that it could not be liable as it had ceased to exist. G and N appealed the tribunal’s decision.

Relying on the decision in Green v Victoria Road Primary School Governing Body [2004] EWCA Civ 11, [2004] 2 All ER 763, the EAT held that the tribunal was wrong to find that N could be a respondent in its own right.

It held that in principle G alone would be the respondent to J’s claim but as G had been dissolved that liability had been transferred to N. N accepted that it was potentially indirectly liable for J’s unfair dismissal.

J contended that where a local education authority had sought to exercise powers in a manner usurping the powers of the governing body, it should be directly liable in its own right.

Held: (Elias LJ dissenting) For the purposes of the Employment Rights Act 1996, a dismissal by the local education authority following notification by the governing body under regulation 17 was to be treated as dismissal by an employer under article 3(1)(d) of the 2006 order, and, for the purposes of Part X of the 1996 act, as a dismissal by the governing body under article 4(b).

On the assumption that G had given no notification to N under regulation 17, and that N had dismissed J, it was arguable that the notice of dismissal would not be deemed to have been given by G under article 3 or 4.

If that was the case, there would be no prohibition under article 6 of the order against N being made respondent in its capacity as employer, as found by the tribunal.

That was unlike the position in Green, where the court had not been considering who should be made respondent when a local education authority had purported to dismiss, and there had been no invocation of the statutory power of dismissal or exercise by the governing body of its statutory employment powers, Green distinguished.

The conclusion that the act of dismissal was G’s, as it could have prevented the effect of the notice of dismissal but had acted on the assumption that the dismissal was effective, was not open to the instant court in the absence of relevant evidence.

Factual assumptions regarding the role of G in J’s dismissal were to be resisted.

Those were matters which had to be resolved on the evidence. Permitting J to include N as a party to the proceedings in both its personal and vicarious capacities would not risk the mischief feared by the court in Green.

The facts of the instant case were exceptional; there would remain only one respondent as G had been abolished. The order of the tribunal regarding the joinder of N to proceedings would be restored (see paragraphs 56-61 of judgment).

Appeal allowed.

Patrick Green (instructed by Direct Public Access Scheme) for the appellant; Jonathan Walters (instructed by in-house solicitor) for the respondent.