Introduction

Governors in our schools have the duty, in accordance with the social teaching of the Church and in compliance with employment law, to act fairly in handling issues, which might result in dismissal. Where such cases arise they should seek the advice of officers in the Schools Administration Department of the Westminster Diocese Education Service (WDES) and of the Local Education Authority (LEA).

Under the provisions of Schedule 17 to the School Standards and Framework Act 1998 (SS&FW Act 1998) governors are solely responsible for decisions over whether or not staff should be dismissed from their employment. The Act also lays down certain procedural requirements for governing bodies to follow when considering such decisions. Since the decisions taken by governors can be challenged in Employment Tribunals it will be helpful to set out briefly the law of unfair dismissal.

A member of staff who is dismissed will, subject to certain qualifications, like 1 year of service, have a right to complain of unfair dismissal to an Employment Tribunal.

Where such a complaint is made it is for the employer (i.e. the governing body) to show the reason or, if there is more than one reason, the principal reason for the dismissal. The employer has also to show that the reason is one of the following potentially fair reasons:

(a) capability or qualifications for performing the work concerned;

(b) conduct;

(c) redundancy;

(d) contravention of a legal requirement;

5. some other substantial reason which would justify dismissal. This might be a breakdown of trust or a

reorganisation.

There are, conversely, certain inadmissible reasons for dismissal for example, pregnancy, sexual or racial discrimination; or related to trade union membership or activities or health and safety matters. Advice on those should be sought from officers of the WDES or the LEA.

 Where the employer meets the statutory requirements over the reason for dismissal, the Tribunal then considers the facts and circumstances of the case, including the size and administrative resources of the employer, in deciding whether the employer acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissal. That question has to be"determined in accordance with equity and the substantial merits of the case". (Section 57 of the Employment Protection (Consolidation) Act 1978).

The Tribunal is not permitted to ask itself what they, the members of the Tribunal, would do in the particular case. They have to look at the case objectively and decide whether the decision to dismiss "fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair." It is recognised, therefore, that one employer might take a more serious view of an act of misconduct than another employer in quite different circumstances. For example, in a Catholic School certain behaviour by a member of staff might be wholly unacceptable whereas similar conduct in a Local Authority School might not be so regarded. See Section 60 (5)(b). SS&FW Act 1998.

Governing bodies are legally obliged to adopt appropriate disciplinary procedures. In this diocese the Bishops expect governors to adopt the procedures published by the CES. Employment Tribunals attach substantial importance to the adoption of fair procedures by employers. Governing bodies are required to establish a Staff Discipline Committee, (the First Committee) consisting of not less than 3 governors with power to dismiss, if necessary, a member of staff and an Appeal Committee, also consisting of not less than 3 governors with power to uphold a decision to dismiss, to cancel such a decision or to impose an alternative sanction. (There are regulations concerning the number of governors required to constitute a properly formed committee). See School Government Regulation 47.

Before a disciplinary issue is referred to a Staff Committee an investigation into the facts of the case should have been conducted by the headteacher or some person(s) designated by the headteacher. Where the headteacher is the subject of possible disciplinary or other action the investigation may be undertaken by a governor or by an officer of the Diocese or the LEA.

Both stages, that is involving the Staff Dismissal Committee and the Appeal Committee, where the member of staff wishes to appeal, form part of the total procedure.

Hearings by Staff or Appeal Committees must be conducted in accordance with the rules of Natural Justice. Essentially this means that:

The procedure to be adopted during hearings is laid down in the disciplinary, procedures published by the CES

It is the proper practice to afford a right of representation to a member of staff appearing before a Staff or Appeal Committee. Representation maybe provided by an official of a Professional Association, a friend or a solicitor. It is also permissible for a headteacher presenting a case against a member of staff to be advised and accompanied by a representative of his professional association.

At the conclusion of a hearing the parties, that is the person(s) putting the case on behalf of the school and the member of staff in question plus any representative(s) are required to withdraw. The committee, assisted by advisers if the committee so wishes, discuss the case and reach their decision. The clerk will be present to offer procedural advice and to note the decision and the reasons for it. The decision is solely for the membership of the committee to take and not for the advisers or the clerk.

An issue which sometimes concerns governors is what is the standard of proof to be applied where evidence is disputed in disciplinary or capability cases. Unlike the test of "sureness" in criminal cases the test applied by Employment Tribunals, and therefore recommended to governors, is one of weighing up the balance of probabilities (i.e. is it more likely than not). The test in cases of misconduct has been expressed in this way and approved by the Court of Appeal:

"An Employment Tribunal has to decide whether the employer who discharged the employee on the ground of the misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. This involves three elements. First there must be established by the employer the fact of that belief; that the employer did believe it. Second, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief. Thirdly, the employer at the stage at which he formed that belief on those grounds must have carried out, as much investigation into the matter as was reasonable in all the circumstances of the case.

It follows, therefore, that a committee before it reaches a decision must be satisfied that the investigation of the facts is reasonably complete. If it is not so satisfied it should require further investigation to take place and/or conduct any further investigation itself. The outcome of such investigation must, of course, be made available to the member of staff concerned and the parties must be afforded an opportunity to make representations to the committee.

 Appeals

It is not normally necessary for an Appeal Committee to conduct a full re-hearing of a case, although it has discretion to do so. If, however, an Appeal Committee becomes aware of a major procedural error, which has occurred before the Staff Committee, for example a serious breach of natural justice, it will be necessary for the Appeal Committee to conduct a full re-hearing.

(a) The Committee has to decide:

iii. a person must have a fair opportunity to respond to the charges

iv. the committee hearing the case must do so with an open mind

(b) To afford the appellant to put the appeal as he wishes and to have the last word

i. the employee/representative

ii. governors' representative

iii. members of the Appeal Committee

The Committee's decision should be conveyed in writing with reasons.

Although there is no obligation for notes to be taken at hearings it is recommended that reasonably full notes (but not a transcript) be taken and copies b.f. notes when approved by the Chairman of a Committee be provided to the parties. Such notes can be particularly helpful in the event of Employment Tribunal proceedings taking place.

 Conclusion

Governors may be reassured by a comment made by a Law Lord in a case involving admission appeals to one of our schools. Lord Browne-Wilkinson, who is experienced in Employment Law, said this:

"The Court should not approach decisions and reason given by committees of laymen expecting the same accuracy in the use of language which a lawyer might be expected to adopt. This was a lay committee, with a lay clerk. The same committee on the same day had considered (Mr X's) appeal and the reasons they gave in that case are impeccable."

1. The committee should do everything possible to establish an atmosphere where the parties can put their case with ease.
2. At the start of the hearing the chairman or clerk should welcome the parties and introduce

those present. The procedure should be explained and it should be stated that the committee will, at the end of the proceedings, withdraw to consider its decision and that the decision, if unacceptable to the employee, is open to appeal to another committee of the governing body and that the findings of that committee will be binding on both parties.

3. The clerk may be called on to give legal or procedural advice to the committee during the

1. ORDER OF HEARING

• THE CASE AGAINST THE EMPLOYEE PUT BY THE HEADTEACHER (OR

1. NOTIFICATION OF DECISION