'Unfair' dismissal of full-time mayor from role at a school could be justified, says EAT

Out-Law News | 17 Apr 2015 | 10:12 am | 2 min. read

A former member of staff at a school in Merseyside was not entitled to compensation when he was dismissed from his role, as his full-time work as the elected mayor of Liverpool was incompatible with him continuing as an employee, the Employment Appeal Tribunal (EAT) has ruled.

Employment judge Daniel Serota QC agreed with the employment tribunal's original decision that the school had "some other substantial reason" (SOSR), as set out in the Employment Rights Act (ERA), for dismissing Joe Anderson, albeit the way in which it went about that dismissal was unfair. Anderson was dismissed in August 2012, having done no work for the school since 2010.

The judge found that the tribunal had been entitled to come to the conclusions that it did, saying that Anderson appeared not to have given "sufficient attention as to how the arrangement he made ... might look to outsiders".

"It is certainly fairly arguable that this arrangement may strike members of the public as constituting a misapplication of public monies," he said.

"What most people would consider [the school's] desire to extricate itself from this arrangement, which could have been a public relations disaster for the school, would seem to me to be a clear example of SOSR for ending the employment relationship with [Anderson]. I am satisfied that this is the conclusion to which the employment tribunal came and to which it was clearly entitled to come," he said.

Anderson had been employed by Sefton Council as an inclusion officer in Chesterfield High School while at the same time being an elected councillor in Liverpool, using his statutory right to paid leave in order to perform his councillor duties. He continued to receive some payments from the school, which had held his job open for him, after being promoted to council leader and, later, elected as the first full-time mayor of Liverpool.

Chesterfield High School became an independent academy in 2011, at which point Anderson's employment transferred automatically from Sefton Council along with other school employees under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE). In 2012, the school's governors agreed to dismiss Anderson as it "did not appear to be an appropriate use of school funds" to continue paying him.

The ERA requires employers to grant time off during working hours to employees to enable them to hold public office, and permits them to grant them paid leave. This was capped at 208 hours annually by the Local Government and Housing Act (LGHA), which also excludes elected mayors from the scope of the provisions.

Anderson was elected as mayor of Liverpool in May 2012. That September, a meeting of the school's governors was convened to decide whether they would continue to employ Anderson under arrangements entered into by the local authority when he was still a councillor, and which included holiday pay, pension contributions and keeping his position at the school open. The company that provided the school's payroll administration was informed, and it sent an automatically-generated note and P45 to Anderson in August 2012 telling him that his employment had ended.

The employment tribunal judge had agreed with Anderson that he had not been informed that the governors were considering ending the arrangement before receiving the correspondence from the payroll company, and that he had not been given the opportunity to have his say. For these reasons, Anderson's dismissal was unfair. However, the judge assigned "contributory fault" to Anderson because he had not contacted the school about standing for mayor. He also concluded that it was "100% likely that [the school] would have ended the employment altogether following a proper and fair consultation".

The EAT judge said that these were conclusions "to which [the employment tribunal] was entitled to come".

"Its conclusion that [Anderson] was party to a misuse of public funds was certainly within the range of reasonable responses of a reasonable employer," he said. "Further, [Anderson's] conduct can reasonably be regarded as culpable or blameworthy."

"The finding that [Anderson] would have been dismissed in any event had a 'fair' dismissal procedure been followed is unassailable as a finding of fact that the employment tribunal was entitled to make. I am unable to see how consultation would have made any difference," he said.