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Failure to call appeal officer wasn’t fatal

Elmore v The Governors of Darland High School

In most unfair dismissal cases, an employer will put its dismissing officer and its appeal officer in the witness box. It makes sense to give the tribunal a full account of what happened at each stage and why. But this case shows that a fair dismissal may be found even where the appeal officer does not give evidence.

Ms Elmore was a maths teacher, dismissed on capability grounds. She had failed to meet the standards expected by the school. The tribunal found that her dismissal was fair, and she appealed to the Employment Appeal Tribunal (EAT). Her employer’s appeal panel hadn’t given reasons for dismissing her appeal, she said. And no member of the appeal panel had given evidence at the tribunal hearing – so she hadn’t had an opportunity to test the reasonableness of the panel’s thought process and analysis.

She lost. The EAT held that the tribunal was entitled to find that the dismissal was fair. Firstly, there was no doubt that Ms Elmore’s teaching was below the standard set by the school. Secondly, the capability hearing was robust and fair and the panel’s decision was reached in an objective, impartial and balanced way. Thirdly, Ms Elmore hadn’t put forward any fresh evidence or new arguments at the appeal stage. The tribunal was permitted to draw the inference that the appeal panel dismissed the appeal on the same grounds and for the same reasons as those identified by the capability hearing.

In respect of the lack of an appeal panel witness at the tribunal hearing, the EAT did not accept that there is a legal requirement in every unfair dismissal case where reasons for dismissing an appeal aren’t given, for the appeal officer to give evidence at a tribunal hearing. A tribunal can still find that there was a fair dismissal procedure. But where new evidence or new arguments had been introduced at the appeal stage (and there hadn’t been a reasoned appeal outcome decision, and an appeal panel witness hadn’t appeared at tribunal) then an employer might not have discharged its evidential burden.

So, it will come down to the facts of the case. Employers would be best advised to avoid getting into this territory by, at the very least, making sure that dismissal and appeal panel decisions are communicated clearly and fully so that there is no doubt about the outcome and the reasons for it.