In the recent case of Elmore v The Governors of Darland High School the Employment Appeal Tribunal (EAT) considered whether the dismissal of a school teacher on capability grounds was fair. The school’s appeal panel failed to give any reasons for its decision and no members of the appeal panel were called as witnesses at the tribunal hearing.
In a judgment which emphasised that each case will turn on its own facts, the EAT held that the dismissal was fair.
The employee’s argument was that there was not enough evidence to conclude that she had been given a fair appeal. However, the tribunal was satisfied from the minutes of the appeal hearing that the appeal panel had properly engaged in the process and explored the relevant issues at hand: it was a fair appeal and not a mere formality.
The tribunal was entitled to infer that the appeal panel upheld the employee’s dismissal for the same reasons relied upon by the panel which took the decision to dismiss.
The EAT held that it is not a legal requirement for the appeal officer to give evidence at the tribunal in every case in order for the tribunal to determine that the dismissal procedure was fair on the whole.
In this particular case, it was helpful to the employer that the appeal was a re-running of arguments that had already been heard. Had any fresh evidence or arguments been raised, the decision would likely have been different. It may be said that the school was lucky with the specific facts of this case: so you should not discard your reasons just yet.
It remains good practice to give reasons for appeal outcomes and to call appeal officers as witnesses in the tribunal, where appropriate. We recommend continuing to do so. However, this case indicates that a failure to do so will not always be fatal to an employer’s case.