Appeal No.UKEAT/0579/05/CK

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
On 15 February 2006

Before
HIS HONOUR JUDGE McMULLEN QC
MR C EDWARDS
MR P A L PARKER CBE

(1)	NORTHAMPTONSHIRE COUNTY COUNCIL
(2)	ABINGTON VALE MIDDLE SCHOOL 	APPELLANTS

MRS L M GILKES	RESPONDENT

Transcript of Proceedings

JUDGMENT

	

	APPEARANCES

For the Appellant	MR P OLDHAM
(of Counsel)
Instructed by:
Northamptonshire County Council Legal Services
P O Box 104 County Hall
George Row
Northampton NN1 1AW
	
For the Respondent	MR A NAWBATT
(of Counsel)
Messrs Abel-Brown 
Solicitors
18a Orange Street
Uppingham
Rutland LE15 9SQ	

SUMMARY

Unfair Dismissal: Exclusions including Worker/Jurisdiction 
Reasonableness of Dismissal

When a school within a local education authority subscribed to a protocol with the authority and other schools to facilitate the movement of teachers in an education reorganisation, to avoid redundancy, and the protocol was not followed, the authority could not be liable: Governing Body of Clifton Middle School and Others v Askew [2000] ICR 286. The Employment Tribunal Judgment against the authority was set aside. Any liability for unfair dismissal lay with the school and the case would be remitted to the Employment Tribunal for it to decide if the unchallenged findings of unfairness apply to the school’s treatment of the teacher. 

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about the relationship between a local education Authority and the governing body of a school with delegated powers in the treatment of a reorganisation leading to the redundancy of a teacher.  The judgment represents the views of all three members.  We will refer to the parties as the Claimant and to the Respondents as the Authority and the School.  

Introduction
2.	It is an appeal by the Respondents in those proceedings against a judgment of an Employment Tribunal sitting at Bedford, (Chairman Mr G M Pettigrew) registered with reserved reasons on 24 August 2005.  Today the Claimant is represented by Mr Akash Nawbatt of Counsel and the Respondents by Mr Peter Oldham of Counsel. The Claimant had been represented by different Counsel below and the Respondents by a solicitor.  The Claimant claimed unfair dismissal against the Authority.  The Employment Tribunal at a hearing added the school as a Respondent. No amendment was made to the Response so it must be assumed that both Respondents relied on it. It contended that the dismissal of the Claimant by reason of redundancy was fair. 

The essential issues
3.	The issues as defined by the Employment Tribunal were as follow:
“3.1.1	Whether the dismissal of the Claimant by the second Respondent was fair or unfair, having regard to Section 98(4) of the Employment Rights Act 1996 in particular:
(a)	was the Claimant warned and consulted prior to her dismissal?
(b)	did the Respondent adopt a fair method of selection and fairly apply that method?
(c)	did the Respondent take such steps as were reasonable to mitigate the effect of the redundancy by considering the Claimant for alternative work within its organisation?
(d)	did the Respondent take such steps as were reasonable to mitigate the effect of the Claimant's redundancy by taking such steps as it was reasonable for it to take to mitigate the effect of the redundancy within the employment of the first Respondent?”

4.	Paragraphs 3.1.1(c) and (d) were live issues.  The Respondent there referred to is, we hold, the school. This is clear from the reference to the Second Respondent and the First Respondent in other the other sub-paragraphs 

5.	After further refinement during the course of the hearing, the Tribunal focused on one issue.  
“7.10	…The principal issue however is whether the Respondents acted reasonably or unreasonably in considering alternative employment”.

6.	The Tribunal decided as follows:
“1.	The Claimant was unfairly dismissed by reason of redundancy.
2.	The first Respondent acted unreasonably in treating their reason for dismissal as a sufficient reason for dismissing the Claimant.
3.	The sum of £45,211.20 is awarded to be paid by the first Respondent to the Claimant by way of compensation for her unfair dismissal.
4.	The second Respondent acted reasonably in treating their reason for dismissal as a sufficient reason for dismissing the Claimant”.

7.	The Respondents appeal against the findings in respect of the Authority and the Claimant cross-appeals in respect of the finding in favour of the School in the paragraph above.  Directions sending the appeal and cross-appeal to a full hearing were given in chambers respectively by Elias P and Rimer J.  

The legislation
8.	The relevant provisions of the legislation are not in dispute and we gratefully take in the account of the law given by the Employment Tribunal as follows:
“6.1 	Section 98(1) of the Employment Rights Act 1996 provides that:
‘in determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show:
(a)	the reason (or if more than one, the principal reason) for the dismissal, and 
(b)	that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which he held’.
6.2 	Subsection (2) sets out four reasons which are potentially fair reasons for dismissal, including redundancy.
6.3	Subsection (4) provides that:
‘Where the employer has fulfilled the requirements of subsection (1) the determination of the question of whether the dismissal is fair or unfair (having regard to the reason shown by the employer)- 
(a)	depends on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b)	shall be determined in accordance with equity and the substantial merits of the case."
6.4	Regulation 14 of the school Staffing (England) Regulations 2003 provides in relation to the appointment of teachers at community, voluntary controlled, community special and maintained nursery schools:
	‘(1)	Subject to regulation 11(2), where a person is selected by the governing body for appointment, the Authority must appoint the person unless regulation 11(1)(c) applies’.
6.5 	Regulation 17 of the School Staffing (England) Regulations 2003 provides:
‘(1)	Subject to Regulation 18, where the governing body determines that any person employed or engaged by the Authority to work at the school should ease to work there, it must notify the Authority in writing of its determination and the reasons for it.
(2)	If the person concerned Is employed or engaged to work solely at the school (and does not resign), the Authority must, before the end of the period of fourteen days beginning with the date on which the notification under paragraph (1) is given, either
(a)	give him such notice terminating his contract with the Authority as is required under that contract, or
(b)	terminate that contract without notice if the circumstances are such that is entitled to do so by reason of his conduct’
6.6	The Education (Modification of Enactments Relating to Employment) Order 2003 provides:
‘3 (1) 	In their application to a governing body having a right to a delegated budget, the enactments set out in the Schedule have effect as if:
(a)	any reference to an employer (however expressed) included a reference to the governing body acting in the exercise of its employment powers and as if that governing body had at all material times been such an employer;
(b	in relation to the exercise of the governing body's employment powers, employment by the Authority at a school were employment by the governing body of the school;
(c)	references to employees were references to employees at the school in question;
(d) 	reference to dismissal by an employer included references to dismissal by the Authority following notification of a determination by a governing body under regulation 18(1) of the [school Staffing (England) Regulations 2003].
4	Without prejudice to the generality of article 3, where an employee employed at a school having a delegated budget is dismissed by the Authority following notification of such a determination as is ,'71entioned in article 3(1)(d):
(a)	Section 92 of the 1996 Act has effect as if the governing body had dismissed him and as if references to the employers reasons for dismissing the employee were references to the reasons for which the governing body made its determination, and
(b)	Part X of the 1996 Act has effect in relation to the dismissal as if the governing body had dismissed him, and the reason or principal reason for which the governing body did so had been the reason or the principal reason for which it made its determination.
6(1) 	Without prejudice to articles 3 and 4, and notwithstanding any provision in the Employment Tribunals Act 1996 and any regulations made under section 1 (12) of that act, this article applies in respect of any application to any employment tribunal, and any proceedings pursuant to such an application, in relation to which by virtue of article 3 or 4 a governing body is to be treated as if it were an employer (however expressed).
(2) 	The application must be made and the proceedings carried on against that governing body.’"

9.	In addition, it is necessary to refer to s139 of the Employment Rights Act 1996 for the meaning of “business”. 
“139 Redundancy 
(1)	For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to -
(a)	the fact that his employer has ceased or intends to cease -
(i)	to carry on the business for the purposes of which the employee was employed by him, or 
(ii)	to carry on that business in the place where the employee was so employed, or 
(b)	the fact that the requirements of that business-
(i)	for employees to carry out work of a particular kind, or 
(ii)	for employees to carry out work of a particular kind in the place where the employee was employed by the employer, 
have ceased or diminished or are expected to cease or diminish. 
(2)	… 
(3)	For the purposes of subsection (1) the activities carried on by a local education Authority with respect to the schools maintained by it, and the activities carried on by the governing bodies of those schools, shall be treated as one business (unless either of the conditions specified in paragraphs (a) and (b) of that subsection would be satisfied without so treating them)”. 

Those provisions, modified by the Education Act 2002, were in place at the time relevant to these proceedings.  The Tribunal directed itself by reference to the provisions above although, as will become clear, misdirected itself on their application.  

The facts
10.	The Tribunal found the following facts. 
“5.1	Mrs Gilkes was employed as a teacher at Abington Vale Middle school and began there on 151 September 1983. She held the responsibility of Key Stage 3 Coordinator, Key Stage 3 Manager and Year 8 Leader.” 
The Claimant was employed pursuant to a letter of appointment by the Authority from 24 May 1983 until her dismissal on 31 August 2004.  The Tribunal said this:
“5.4	By the accounts written by her Head Teacher in a reference letter, Mrs Gilkes was an excellent teacher and recognised as such by OFSTED inspectors and both effective and efficient in her various roles”.

11.	During the early part of the century, the Authority which is the local education authority for Northamptonshire, was engaged in reviewing its schools to introduce a two-tier system in place of the existing three-tier system.  A decision was taken in principle: there would be no compulsory redundancies and there would be a comprehensive training programme.  There would be 900 teaching and support staff affected by these changes and, in the end, 90 teachers and 150 support staff were made redundant.  

12.	In order to make this re-organisation effective, and to facilitate movement of staff, the Authority introduced a Protocol.
“5.9	… the County Council sought and secured the agreement of schools to a protocol. It has stated intent of coordinating and managing the changes so as to be sensitive to career aspirations and individual staff needs, of complying with employment law and of avoiding compulsory redundancies save in exceptional circumstances.
5.10 	Its main provisions can be summarised as follows:
5.10.1	Where schools were not closing there would be continued employment for all staff. There may be ring fencing for senior staff. (Eventually the ring fence was actually enlarged to include all existing County Council staff);
5.10.2	Efforts would be made to ensure that displaced staff would be redeployed to their preferred employment option;	
5.10.3	Where an employee did not have a suitably identified post, the County Council and the governing bodies would ensure, subject to person specifications being met, that the individual may be deployed into a vacant post;
5.10.4	Support and professional development would be provided to ensure that staff were suited to their new roles”.

13.	Elaborate processes were contained within the Protocol which included the identification of vacant posts and the circulation of lists of posts so that displaced staff would be able to indicate an interest (see para 5.21 extracted below)  There was also some form of remedy:
“Where any member of staff feels that a school has not acted in accordance with the protocol, they may appeal to a panel consisting of a Governor of the relevant school, a Governor of a school outside the affected geographical area and a County Council officer. schools are expected, by signing up to the Protocol, to abide by the outcome”.

14.	The Authority regarded the Protocol as a voluntary code not creating legal obligations as correctly found by the Employment Tribunal.  It then went on to find this:  
“5.19	Mrs Gilkes was aware from 2000 that the review was being undertaken and in February 2002 she was told that the school was to change to a primary school with an intake of reception classes only.
5.20	During 2002 the Claimant was informed that her job was at risk and she would need to seek a new job within the scope of the Protocol. 
5.21	The methods adopted by the County Council in attempting to assist the displaced staff finding new jobs can be summarised as follows. Vacancies were circulated to displaced staff.  Staff were invited to indicate their preferences and the details were submitted to identified school. In some cases individuals were put forward to schools by members of the County Council's implementation scheme.
5.22	The Claimant was not considered for any jobs within the Education Department itself”.

15.	In due course, the Authority wrote to the Claimant telling her that her job was at risk of redundancy and she could make representations.  In a letter of appeal dated 25 March 2004, she cited examples of what she considered to be “unfair obstacles to redeployment” and she mentioned the number of schools where there were available posts.  The response of the Authority was to invite her to present her case to a panel of the School’s governors, which she did on 22 April 2004.  In preparation for that, a letter written by her solicitors (for she had by then taken advice) made a number of specific complaints about the vacancies which had occurred at schools which the Claimant considered were appropriate and which she could have taken up.  

16.	At the hearing, the Authority appears to have put forward a case which was simply that education was to go to a two-tier system.  The School seemed to take little further action, for the Tribunal concluded :
“5.33.1 	In relation to the Northampton school for Girls' vacancy, the County Council did not contest that there had been a significant change in the previous Key Stage 3 Coordinator's role, nor did they contest that it should have been advertised.  The incumbent would of course have been one of those to be given preferential treatment.  The County Council did not deny that the vacancy should have been advertised again upon that vacancy re-occurring. The Tribunal therefore found that there had been a significant change in the posts and that, under the Protocol, the Claimant should have been interviewed for the initial vacancy and the second vacancy”.
. 
17.	It made the same judgment in respect of four other schools. A further opportunity was given for a meeting with the Claimant, but no response was ever given to her solicitor’s letter.  The Tribunal upheld the Claimant’s case that there were at least five jobs available which could have been taken up and which were not.  
“7.19	... Mrs Gilkes' chances of getting one of these posts would have been very good. She had the accurate skills match, length of service and in one particular case long-standing and well-developed links with a particular school. The chances that she would have secured one of these jobs are assessed by the Tribunal as 80%. In other words, had the procedural flaws not occurred the chances that Mrs Gilkes would have been dismissed in any event are 20%”.

18.	It went on to hold that the liability for dismissal lay with the Authority and recorded that it did not act reasonably in its treatment of the Claimant.  As to the School, it said this:
“7.12	… there was no evidence that there was any vacancy at the Abington Vale school for which Mrs Gilkes could have been considered. Indeed, she made no criticism of their performance of their obligations.
7.13	As to the County Council, having set up a Protocol, clearly they failed to follow it.  Mrs Gilkes made a very clear complaint in April 2004 that the Protocol was not being followed”.
Thus the Tribunal concluded that the Authority acted unreasonably in relation to the dismissal and that the dismissal was unfair.  It awarded unfair dismissal compensation.  

The Respondents’ case
19.	The Respondents submitted that the Tribunal had erred in law in pinning liability upon the Authority.  This appeal was not resisted and it has been allowed by consent.  

20.	Anticipating the cross-appeal, Mr Oldham indicated that this point should not be allowed to be raised.  There had been no criticism of the School at the end of the Employment Tribunal hearing, when written submissions were made on behalf of the Claimant.  That must conclude the issue on the cross-appeal but, in any event, if that were wrong and permission were given for it to be raised, the Tribunal had correctly made the judgment that there was no unreasonable conduct constituting unfair dismissal by the School.  We were reminded that, in accordance with the EAT’s own jurisprudence, we should not allow a new point to be taken unless an exceptional case is presented.

21.	A similar argument was raised in respect of s139 Employment Rights Act 1996.  It has to be said that we, ourselves, drew attention to s139 wondering whether this might indicate an approach to the present problem.  Again, Mr Oldham contended that this was a new point which should not be taken especially as it would require further examination of the facts.  In any event, it was a bad point because s139, whilst applicable for all purposes of the Act, is within Part XI dealing with the right to claim redundancy payments and not within Part X which was subject to the Modification Orders which we have cited above.  Since the claim here is one of unfair dismissal, it is regulated by Part X and not Part XI and Part X is the subject of a Modification Order.

The Claimant’s case
22.	On behalf of the Claimant in her cross appeal, it is contended that her case was never given away at the Employment Tribunal.  Her complaint had throughout been that there had been a failure to comply with the Protocol.  When the complaint was made to the Authority, resolution of it was directed to a hearing by the School, and the School dismissed it, resulting in her dismissal.  It had always been the Claimant’s case that redeployment opportunities were not made known or available to her and that that was a breach of the principles of fairness in the Protocol.  Reliance was placed upon the judgment of the National Industrial Relations Court in Vokes Ltd v Bear [1974] ICR 1.  It was contended that a stronger argument can be made in a case such as this where there has been voluntary agreement to a protocol so that situations of redundancy are avoided or at least mitigated.  

23.	As to s139, this, albeit a new point, should be argued here because there were sufficient findings of fact which would allow the point to be taken and to be resolved here.  Whatever unfairness was identified in Governing Body of Clifton Middle School and Others v Askew [2000] ICR 286), where a claimant could fall into a gap between two provisions, did not apply here (see, for example, the passage in the judgment of Peter Gibson LJ at [2000] ICR 286 at 299A-C.  
“It may be said that there is a surprising gap in the statutory provisions through which teachers like Mr. Askew may fall when, on a common sense view of a reorganisation of schools, two schools are merged to become a new school though in effect carrying on providing education to much the same persons as before But, as Mr. Oldham pointed out, there is a tension between two policies: the protection of teachers' employment and the principle that the governing body of a school choose the staff of the school. It may well be that the gap has been left deliberately by successive governments of different political persuasions, so as to allow the latter policy to prevail. It would not have been difficult to extend the application of the Order of 1989 to the Regulations of 1981 or to mirror the effect of the Regulations of 1981 in the Act of 1988, as was done by section 75 in respect of schools becoming grant-maintained It is not for the courts to fill that gap. I will not comment on the further submissions of Mr. Oldham relating to points taken in the respondents' notice but not determined by the industrial tribunal or either appeal tribunal. For the reasons which I have given I would dismiss this appeal”.

The legal principles
24.	The legal principles to be applied in a case such as this appear to us to be as follow.  First, a teacher employed in a community school with a delegated budget (such as the School) has a contract of employment with the local education authority (here the Authority). Further, the Authority is responsible for terminating the teacher's contract of employment following a request from the School. However, the Education (Modification of Enactments Relating to Employment) Order 2003, and in particular Article 4 (set out at para 6.6 of the reasons), provides that the unfair dismissal provisions of the Employment Rights Act 1996 have effect as if the School dismissed the employee and as if the reason for dismissal were the School's. Consequently, a teacher is required to pursue any claim for unfair dismissal against the School, although the Authority remains liable for any award of compensation and may be joined as a respondent to the proceedings (Article 6).

25.	As to new points, the Court of Appeal in Khan v Royal Mail plc [2006] EWCA Civ 2, Mummery LJ, giving the principal judgment, applied the long line of authorities including Jones v Governing Body of Burdett Coutts school [1999] ICR 38 at 47, Kumchyk v Derby City Council [1978] ICR 116 held that it is an exceptional case only in which a new point may be argued on appeal.  See also a full account of that jurisprudence in the judgment I gave with members in Leicestershire City Council v Unison [2005] ICR 920.  

Conclusions
26.	Applying those principles to the issues in the appeal, we are grateful to the parties for their clear exposition of the law relating to employment of a teacher by a governing body within a local education authority and adopt it.  This is a proper case in which we can exercise our power under paragraph 15 of the Practice Direction for we have had the opportunity of reading the detailed Skeleton Arguments of both Counsel and we are grateful to Mr Nawbatt for the responsible attitude he has adopted.  

27.	We are satisfied that the Tribunal wrongly focused upon the liability of the Authority when the enactments which we have cited above (and which it cited) plainly point to the responsibility, if any, for an unfair dismissal in circumstances such as this, lying with the School and not with the Authority.  The appeal is allowed by consent and Judgment paragraphs 1-3 are set aside.  In simple terms, application of those provisions and of the authorities cited to us (principally Askew) indicates that there is no room for liability to be placed upon two employers, but only upon the governing body in circumstances where it has delegated powers. The Authority is not liable and the Employment Tribunal Judgment against it is set aside by consent.

28.	We are mindful that a fundamental principle of open justice is that an Employment Tribunal must give reasons.  In this case, the Tribunal has found that the School did act reasonably and therefore did not unfairly dismiss the Claimant.  The sole reason appears to be the passage in paragraph 7.12 which shows that no criticism was made of its performance.  If, indeed, a concession was made covering this point, it would be difficult for it to be unpicked at the EAT for the reasons in the authorities which we have cited above. This is not an exceptional case.  

29.	However, we accept the submission that what the Tribunal deals with in para 7.12 are the legal obligations imposed upon the School.  We accept Mr Oldham’s submission, based upon Askew, that the legal obligations and duties of the School apply in respect of the dismissal of a teacher, and are narrowly circumscribed.  Those relate to what might be called its public law powers and duties.  We consider that that is what the Tribunal had in mind because it there acquitted the School of unreasonableness when it indicated that there was no vacancy.  After all, the Authority had decided that the School would become part of the two-tier system and there was no vacancy for which she could have been considered within the School..  It seems to be accepted that there is an obligation to consider any vacancies for a teacher within the school itself, and Regulation 17 of the School Staffing (England) Regulations 2003 so indicates. That is an end to its statutory duties under Regulation 17.

30.	However, the Tribunal set itself a wider task based upon reasonableness under s98(4) of the Employment Rights Act 1996 when it defined the issues.  As the issues narrowed by the close of the case, there was only the one, relating to consideration of alternative employment “by the Respondents” i.e. both of them.  The Tribunal has given reasons for its conclusion that there was no unreasonableness by the School: there was no criticism of its performance.  It is submitted on behalf of the Claimant that the unreasonableness constituted a rejection by the School of her appeal.  It cannot be disputed that at the panel, the Claimant was making precisely the claim which the Tribunal identified as the principal issue: “a very clear complaint that the Protocol was not being followed”.  She was being dismissed while there were vacancies at other schools for which she would have been interviewed and for which she stood an 80% chance of being appointed.  It is not specifically said what it was that the School should have done. In our judgment, Mr Nawbatt is correct when he says that the Claimant claimed that she should not be made redundant in the circumstances of there being a number of vacancies at other schools for which she would have been interviewed. 

31.	The purpose of the Protocol is to facilitate movement of teachers in the reorganisation of schools and to ensure, if possible, that a teacher of the quality of the Claimant is not unemployed but may be considered for other posts within the Authority.  It must have been obvious to the School that it could do something to respond to these claims made by her solicitor.  As the Tribunal records, no response was given and the sole matter informing this judgment by the School was that since the School was closing, there was no post available within the school itself. That was a minimalist approach conforming strictly to Regulation 17 but is not good enough for section 98(4).  

32.	We accept the force of Mr Nawbatt’s arguments based upon Vokes [1974] ICR 1 at 5E, 5G where Sir Hugh Griffiths, giving the judgment of the NIRC upheld the claim of unfair dismissal made by a manager in a large conglomerate group when no steps had been taken to see if his redundancy could be avoided.  
“The employers had not yet done that which in all fairness and reason they should do, namely, to make the obvious attempt to see if the employee could be placed somewhere else within this large group.
….
It is therefore with satisfaction that we find that there is nothing in the wording of [section 98] which compels us to take the view that behaviour which we think most people would consider manifestly unfair is nevertheless to be deemed fair under the Act”. 

33.	We do not accept that there is more freedom given to a corporate employer than to a school employer here.  This is not an issue about public law powers.  As the NIRC made clear, the obvious thing for an employer to do is to engage in behaviour which most people would consider fair and that is somehow to consider whether or not a person who is about to be made redundant may find work elsewhere within either associated companies, if it is a group, or within another school of the same local education authority.  

34.	The position is made stronger when the schools have bonded together in a voluntary code called the Protocol in order to secure that there is collaboration to avoid talented teachers being unemployed when vacancies exist in neighbouring schools.  Thus quite apart from legal obligations which have been discharged by the School, other considerations arise within s98(4) which would have involved a response by the School to the claim that the Claimant was making.  

35.	As a matter of fact, the claim and all her principal criticisms were upheld as against the Authority.  It seems to us with respect that what the Tribunal has failed to do is to connect the unfairness, which it identified initially and which it refined to one of considering alternative employment, to the School.  We accept the submission that the claim was fairly made in the claim form, which was not the subject of an amended response, and this is not a new point.  We do not accept that a concession which is recorded in paragraph 7.12 applies to this argument to prevent this point properly being made at the EAT.  Thus, this case is essentially one of an error by the Tribunal in failing to conclude with reasons why the School was not liable. The central findings relating to unfairness are not challenged but only the fixing of liability for them on the  Authority. It cannot be right that a gap in statutory protection against unfairness opens up when, as here, schools are bound by a protocol promoted by a local education authority to treat teachers fairly, and as a whole the education establishment in the county has fallen below the standards of a reasonable employer. We will remit it to the same Employment Tribunal for it to hear submissions and if it is so minded, evidence on this point.  The Employment Tribunal will decided if its findings of unfairness by the Authority apply to the School. That means that we set aside paragraph 4 of its judgment.  

36.	Finally, we turn to s139.  This is genuinely a new point despite the stout resistance of Mr Nawbatt to that depiction.  As it happens, it is not necessary for us to deal with it but we will say that this new point would involve further evidence being sought because it seeks to consider whether or not in the whole of the “business” of the Authority there was a redundancy situation.  The authorities we have cited above indicate that we would require to be convinced that this was an exceptional case.  We are not so convinced.  However, in deference to the arguments which have been put, it has to be said very skilfully and with no notice whatever by both Counsel, we will give a very provisional view.  

37.	We accept the submission of Mr Oldham that the way into a finding of unfair dismissal in a school where a teacher is engaged is through Part X of the Employment Rights Act 1996 which is, itself, subject to the Modification Orders.  Section 139 is, we accept, a form of dilution of what would otherwise be an easier claim for redundancy payment to be made by an employee.  This is because there is aggregation of the different workplaces to use a simple example. It is possible to see that whereas a claimant may succeed in establishing that there is redundancy entitling her to a payment when her own enterprise closes; when viewed across the board, there may not be.  So even if we were minded to allow the point to be argued, and we take responsibility for our having raised it ourselves, we consider provisionally that it is a bad point and Mr Oldham is right in his submissions.  

38.	We would like to thank counsel for their clear submissions. The appeal of the Authority is allowed. The cross appeal of the Claimant is allowed. The case against the School is remitted to the same Employment Tribunal. Permission to appeal refused [reasons not transcribed].