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Welsh council loses appeal over unfair dismissal claims brought by PE teachers affected by school reorganisation

Gwynedd Council has lost a Court of Appeal case over the redundancy of two physical education teachers after a school reorganisation.

It had earlier lost in both an Employment Tribunal and the Employment Appeals Tribunal.

Teachers Shelley Barratt and Ioan Hughes brought the case after the Ysgol y Gader secondary school, at which they taught, was closed during an amalgamation of various schools in the county.

They claimed unfair dismissal because they were not allowed to submit an appeal to the school’s governors against their redundancy.

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Gwynedd argued this would have been pointless as their redundancy was a consequence of the reorganisation, which the governors were powerless to alter.

In Gwynedd Council v Barratt & Anor [2021] EWCA Civ 1322 Lord Justice Bean said that there were four grounds of appeal brought by the council.

The first was that the tribunal erred in law in finding that the dismissal was unfair because it failed to identify to whom an appeal should have been made and that Regulation 12(9) of the Staffing of Maintained Schools (Wales) Regulations 2006 did not afford a right of appeal and it did not form part of the claimants' case on unfairness before the ET.

Gwynedd also argued that it was an agreed fact that exercising a right of appeal was futile and this was one of the exceptional circumstances in line with the decision in Polkey v AE Dayton Services Limited [1988] UKHL 8.

Other grounds of appeal included that it was an error of law to apply a test of ‘truly exceptional circumstances’ in determining the fairness of the lack of a right of appeal, and also an error for the tribunal not to make a 100% Polkey reduction where the new school had refused to employ the claimants and could not be compelled to reconsider its decision.

Bean LJ dismissed the first ground saying: “The Staffing Regulations plainly do not produce the result that when a teacher is dismissed in the course of a reorganisation of a local authority's schools there is no respondent against which he or she can bring an effective claim.

"The council, as employer, remains subject to its obligations under the Employment Rights Act 1996. These include, where teachers are made redundant, the obligation to ensure that a fair process is followed.”

Ground 2 fell because “even if the [employment judge] was wrong to hold that there is a test of truly exceptional circumstances, that did not invalidate his conclusions on overall fairness,“ the judge said.

He rejected the argument about the Polkey deduction saying the Employment Tribunal had been entitled to take the view “that it was impossible to formulate, or at any rate to answer, the hypothetical question of what percentage chance either of the claimants would have had of being dismissed even if a correct process had been followed.”

Commenting on the case Claire Darwin, a barrister at Matrix Chambers who appeared for the two teachers, said it showed “employers must usually give priority to employees at risk of redundancy over external candidates when seeking to fill available vacancies.

“For the purposes of suitable alternative employment, an employer's ‘organisation’ includes, in the private sector, associated employers; and, for maintained schools, other schools within the area of the same local education authority.”

Mark Smulian

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