England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 October 2014

Mr Justice Supperstone :

Introduction

1. On 1 June 1992 Mrs Julie Davies, the Claimant, commenced employment with the London Borough of Haringey, the Defendant, as a full-time qualified assistant teacher at Northumberland Park Community School ("the School"). The School is a community school maintained by the Defendant local authority.
2. In 1997 the Claimant was elected as the Deputy Divisional Secretary of the National Union of Teachers (the "NUT") for Haringey. She was released from her teaching duties for three days each week to enable her to carry out trade union activities. For the remaining two days she continued in her role as teacher at the school.
3. From April 2000 the Claimant was released full time from her teaching duties for the purposes of carrying out her trade union activities. She has successfully stood for re-election in this post (or that of Divisional Secretary) every year since 2000 and the arrangement whereby she is released full time from her teaching duties has continued.
4. By letter dated 17 July 2014 the Defendant suspended the Claimant from her post in accordance with the Defendant's Disciplinary Procedure which was attached. The suspension has the effect of preventing the Claimant from working as Divisional Secretary of the Union and representing its members in the Defendant Borough. The grounds for suspension allege breaches of the Defendant's Code of Conduct and Social Media Policy. The complaints made against her did not relate to her teaching.
5. The Claimant claims that the Defendant has no power to suspend her or take any other disciplinary action against her.
6. The issue in this case is whether the Defendant has the right to subject the Claimant to disciplinary action or whether only the School has the right to do so.
7. The parties are agreed that there are only two potentially applicable disciplinary procedures (one being the School's, the other being the Defendant's); there is no third procedure; one of the two procedures applies to the Claimant.
8. Further it is common ground that this court is not concerned with the merits of the decision to suspend the Claimant.

The factual background

9. The Claimant's letter of appointment states that:

"You are appointed as a full-time qualified assistant teacher in the employ of the Borough for service on the staff [of] Northumberland Park Community School or such other school maintained by the Borough in which you may be called upon to serve…

Your appointment will date from 1 June 1992 and will be subject to the Borough's Conditions of Employment for qualified teachers, Part B."

10. The Statement of Particulars, served pursuant to the Employment Protection (Consolidation) Act 1978, provides that those particulars apply to "Qualified Teachers and Head Teachers employed in Primary and Secondary Schools and in establishments set up under Section 56 of the Education Act".
11. The Statement of Particulars further provides:

"1. You are employed in the service of this Authority and your employment is to the post of full-time section 11, project ED3 Curriculum Support Teacher…

11. The disciplinary rules applicable to you are laid down in the Council's Scheme of Conditions of Service, in the agreed Codified Conditions of Service for Teachers in Primary and Secondary Schools, in the Rules of Management or Articles of Government relating to the school in which you are employed and in the regulations of the Secretary of State for Education and Science…"

12. On 11 April 2000 Ms Oveta McInnis, Deputy Head Teacher at the School, wrote to Ms Ann Becker, Acting Director of Education of the Defendant:

"Ms. Julie Davies

Ms Davies has been working three days a week facility time with the head teacher's agreement.

Ms Davies has requested an increase to five days a week facility time in order to work for the NUT full time for one year starting at the beginning of the summer term.

The headteacher is in agreement with this. Could you please write to confirm that you have received the request and are in agreement, so that we can make necessary staffing arrangements as soon as possible."

13. The Defendant communicated its agreement, and the arrangement whereby the Claimant is released full time from her teaching duties has continued since 2000.
14. On 20 July 2009 the Claimant wrote to Ms Monica Duncan, the Head Teacher of the School, as follows:

"I am considering returning to my substantive position at NPCS. I would be grateful if you could consider the nature of my position and duties and let me have your thoughts as soon as possible."

15. Ms Duncan replied on 27 August 2009:

"The LA has confirmed that as NPCS is not expected to set aside a permanent post for the possible eventuality of you ceasing to be a full-time NUT officer, should you wish to return to the school, the LA will continue to pay your salary for two terms upon your return to NPCS or until a suitable and comparable post is found at NPCS or through redeployment to another school or Council establishment, whichever is the sooner.

…

Please do not hesitate to contact me, should you require any further clarification with regards to the contents of this letter."

Ms Duncan states (WS1 at para 9) that she had no further communication from the Claimant and she did not seek to pursue a position at the School.

16. On 10 May 2013 Mr Steve Davies, the Defendant's Head of Human Resources, wrote to the Claimant "to clarify [her] current contractual status". The letter continued:

"You have been seconded to full-time trade union duties as an NUT branch officer since 1 April 2000. As a result of this substantial period of time through custom and practice your contractual status has been varied so that your substantive post is that of an unattached teacher and therefore you are deemed to be centrally employed by the Council in the Children and Young People's Directorate."

17. The Claimant replied the following day:

"How does this work? Surely the logical step would be to retain my full-time teaching position from which I am seconded to carry out trade union duties, with reimbursement to the school for days spent on those duties. This is how 0.8 facility time generally works.

…

I am at a loss to understand how it is that these matters were not subject to consultation or discussion before this point. However, I assume you have given these questions some consideration or you would not have written the letters. I am struggling here to see any of this as the actions of a reasonable employer. Can you get back to me quickly please?"

18. Mr Davies did not reply. He left the Council a short time afterwards. On 2 August 2013 the Claimant wrote to Ms Nicola Mathieson, the Defendant's Head of HR Advice and Employee Relations, saying that her substantive post remains that of teacher at the School, and objecting to the content of the two letters written to her by Mr Davies on 10 May 2013.
19. On 17 July 2014 the Defendant suspended the Claimant from her post in accordance with its own disciplinary procedures applicable to Council employees. Paragraph 2.1 of the Defendant's Procedure states:

"This procedure applies to all permanent Council employees, except those teachers directly employed by the Council and all staff appointed by schools operating under the Local Management of Schools, which have their own procedure."

The reasons for her suspension were not related to her work at the School.

20. The Claimant has not worked at the School since 2000. When she was working at the School she stated that her role was that of Curriculum Support Teacher ("CST"), tracking the progress of Ethnic Minority Pupils. She was employed teaching children whose first language was not English (Language Support Teacher) and she held a responsibility post in that area (Incentive "A" Allowance). That post has not existed since 2005 when Mr Andrew Kilpatrick, who was then Head Teacher, conducted a complete review of all responsibility posts at the School and established a new structure of posts.
21. In a letter dated 11 May 2009 Ms Carmelina Tona, the Defendant's Head of Schools Personnel, informed the Claimant, in response to her question as to whether her post had been deleted:

"I am advised that the main duties of the CST post were part of the EMA department in the new structure and that this was part of school-wide restructure of teaching and support posts.

I am also advised that this post is now described as an EMA teacher and that one post is currently filled on a part-time basis with the remaining hours being vacant. All other posts are filled on a full-time basis."

On 28 August 2009 Mrs Davies wrote to Mr Bailey, the Deputy Director of the Defendant's Children and Young People's Service:

"I'm not sure what an 'EMA Teacher' does. This is my next battle. They will have to provide a JD [job description] and identify a suitable course for me to refresh my skills. The only one I can find is a one-year course at the Institute. Surely it would be easier for me to sever ties with the place and be centrally employed like the UNISON people are."

22. Ms Duncan, who has been the Head Teacher at the School since 1 January 2009, conducted a further review of all responsibility posts in 2012-13. Once again all existing posts were abolished and staff with responsibility posts were given an opportunity to apply for posts in the new structure. The Claimant made no such application. Ms Duncan stated (WS1, para 11):

"I have no working relationship with the Claimant, … I have not managed her…"

The legal framework

23. Section 35 of the Education Act 2002 applies to community schools. Section 35(2) provides:

"Any teacher or other member of staff who is appointed to work under a contract of employment at a school to which this section applies is to be employed by the [local authority]."

24. Section 1(1) of the Employment Rights Act 1996 ("the 1996 Act") provides that "where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment". The statement must include a note specifying any disciplinary rules applicable to the employee and specifying any procedure applicable to the taking of disciplinary action or referring the employee to the provision of a document specifying such rules or such procedure (section 3(1)(a) and (aa)). If there is a change in any of the matters which are required to be set out in the statement of particulars, the employer must give to the employee a written statement containing particulars of the change at the earliest opportunity and, in any event, not later than one month after the change in question (section 4(1) and (3)).
25. The School Staffing (England) Regulations 2009 ("the 2009 Regulations") provide, so far as is material:

"7. – Conduct and discipline of staff

(1) The governing body must establish procedures—

(a) for the regulation of the conduct and discipline of staff at the school; and

(b) by which staff make seek redress for any grievance relating to their work at the school.

19. – Suspension of staff

(1) Subject to regulation 21, [which applies to school meals staff] the governing body or the head teacher may suspend any person employed or engaged otherwise than under a contract of employment to work at the school where, in the opinion of the governing body or (as the case may be) the head teacher, such suspension is required.

(3) Only the governing body may end a suspension under paragraph (1).

20. – Dismissal of staff

(1) Subject to regulation 21, where the governing body determines that any person employed or engaged by the authority to work at the school should cease 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 14 days beginning with the date of the notification under paragraph (1), either—

(a) terminate the person's contract with the authority, giving such notice as is required under that contract; or

(b) terminate such contract without notice if the circumstances are such that it is entitled to do so by reason of the person's conduct.

(3) If the person concerned is not employed or engaged by the authority to work solely at the school, the authority must require the person to cease work at the school."

26. The Education (Modification of Enactments Relating to Employment) (England) Order 2003 ("the 2003 Order") provides by Article 2(2) that references in this Order to "employment powers" are references to the powers of appointment, suspension, conduct and discipline, capability and dismissal of staff conferred by the School Staffing (England) Regulations 2003 (now the 2009 Regulations). Articles 3 and 4 state:

"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;

…

(d) references 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 2003 Regulations;…

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 mentioned 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 employer's 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 principal reason for which it made its determination."

27. The enactments set out in the Schedule include the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act"), sections 146, 147, 152-154 and 181-185, and the Employment Rights Act 1996, sections 66-68, 70, 71, 92, 93 and Part X.
28. Employees who are trade union officials are entitled to take reasonable time off during working hours for the purposes of carrying out union activities (ss.168-170 of the 1992 Act). An employee is protected against being subject to a detriment where that is for "the sole or main purpose of … preventing or deterring him from taking part in the activities of an independent trade union… or penalising him for doing so" (s.146(1)(b)). An employee may present a complaint to an Employment Tribunal on the ground that he has been subjected to a detriment by his employer in contravention of section 146 (s.146(5)).
29. An employment contract is subject to the ordinary principles of common law and equity as with any other contract.

The parties' submissions and discussion

30. The Claimant and Mr Stapley, the London Regional Secretary for the NUT, gave evidence; so did Mr Smith, the Interim Head of Schools and Human Resources in the Defendant's Children and Young People Services Directorate. The witness statements of Ms Duncan were admitted in evidence, Ms Monaghan accepting that there was a good reason for her non-attendance. The outcome of this case does not turn on any material difference in the evidence of the parties.
31. It is the Claimant's case that she is employed to work at the School, that position has not changed and so exclusive power to suspend her lies with the School (even if she had become an unattached teacher as suggested in the Defendant's response to the letter before claim). That being so the applicable disciplinary procedure remains the School's disciplinary procedure, and the purported suspension, applying the wrong procedure, is in breach of contract.
32. When the Claimant commenced her employment at the School in 1992 she was subject to the School's disciplinary procedures. Ms Karon Monaghan QC, for the Claimant, submits that remains the contractual position and is now the statutory position, having regard to the 2009 Regulations and the 2003 Order. Accordingly should the Claimant decide not to stand for trade union office in the next election, or should she not be elected, her release from teaching duties would end and she would be entitled to return to her substantive job as a teacher at the School. She has not been provided by the Defendant or the School with a revised statement of terms and conditions of her employment or a statement of changes as would be required by the 1996 Act (see para 24 above), if there had been the change to her employment that the Defendant contends has taken place.
33. Ms Monaghan submits that there has been no variation in the Claimant's contract by express agreement; nor has there been variation by implied agreement. She referred to the well-known authorities of Jones v Associated Tunnelling Co. Ltd [1981] IRLR 477 and Solectron Scotland Ltd v Roper [2004] IRLR 4, as to the limited circumstances in which the acceptance of a variation of contract can be inferred from conduct. Further there has, she submits, been no term implied into the Claimant's contract of employment by custom and practice.
34. The evidence, Ms Monaghan submits, is to the effect that the Claimant was employed to work at the School but on secondment determined year to year, to carry out trade union activities. First, the Claimant's pay slips for 2005 and 2006 give her address at the School (and her evidence was that thereafter they were sent to her home address at her request); and annual pay statements for the years 2009-2011 state that she is "Seconded from Northumberland Park Community School". Second, her pay scale and pay arrangements track those of a teacher, and whilst the Defendant had a close involvement in this, this is not surprising as the Defendant's Schools' HR department provided human resources support to the School. Third, the Claimant's holidays match those of a school teacher and when she worked over the holiday period she was given time off in lieu in the same way as a school teacher who undertook work through school holidays. Fourth, she was kept informed of staff vacancies and staff restructuring. Fifth, she asserted that she was substantively employed at the School as a teacher and she had a right to return to the School, and until the letter of 10 May 2013 (see para 16 above) the contrary was not suggested. Ms Monaghan submits that the evidence indicates there was regular contact between the Claimant and the School, and that it is difficult to understand why there would have been this contact if she was not employed at the School.
35. Whilst the contract of employment of a teacher at a maintained school may be with the relevant local authority, Ms Monaghan submits that the effect of the 2009 Regulations, in particular regs. 7, 19 and 20, and articles 3 and 4 of the 2003 Order is that the material employment powers are held exclusively by the school at which the teacher works.
36. Mr Peter Oldham QC, for the Defendant, submits that the proper approach to the present claim is as follows: there is no dispute that the Claimant's contract of employment is with the Defendant. Consequently there can be no dispute that the Defendant has the contractual right to suspend the Claimant unless the effect of a legislative provision is that it cannot. The issue, he submits, is therefore whether any legislative provision means that only the governing body of the School may discipline the Claimant.
37. The 2009 Regulation, Mr Oldham submits, do not assist the Claimant for two reasons. First, because they do not give the governing body the power to discipline the Claimant as they only give such powers over persons who are "employed to work at the school". The Claimant is not working at the School, nor is the current purpose of her employment to work at the School. It is, Mr Oldham submits, the reality of the work the employee carries out that is relevant. The Claimant has not worked at the School for 14 years, and even assuming there is work for her to do at the School, it is entirely speculative as to whether she would ever work there again. The purpose of the 2009 Regulations is to enable a school to have day-to-day management of persons who teach in the school. The general responsibility of a school's governing body is for the conduct of the school (2002 Act, s.21 and Sch.1). The fact that the Claimant's pay shadowed that of a teacher and that she may assert her right to return to the School if she is not re-elected is, Mr Oldham submits, irrelevant.
38. If the 2009 Regulations do not apply then, Mr Oldham submits, plainly the School's procedure cannot be the relevant procedure. Paragraph 1.1 of that procedure states:

"This procedure is written to fulfil the Governing Body's obligation to establish procedures for the regulation of the conduct and discipline of staff which is set out within the School Staffing (England) Regulations 2009. It takes into account the provisions of the 2009 ACAS statutory code of practice on discipline and grievance."

Moreover the procedure makes clear that it is concerned with conduct "within the school". Paragraph 2.1 of the procedure states:

"The Governing Body is committed to ensuring that high standards of conduct are maintained within the school and recognises that the majority of staff members understand the requirements placed upon them and take responsibility for acting in a way which is consistent with these expectations."

39. In the alternative Mr Oldham submits that even if the correct focus is on the purely contractual position, the Claimant's case fails. The terms of the contract entered into in 1992 have either been varied expressly or impliedly by conduct, or by custom and practice (as to which, see Park Cakes Ltd v Shumba [2013] IRLR 800, per Underhill LJ at paras 32-36), or replaced in their entirety. Under the contract originally entered into the Claimant worked at the School. However, in April 2000 she expressly, alternatively impliedly, agreed to work as a full-time trade union representative.
40. Second, even if the governing body has a power to discipline the Claimant, so does the Defendant. The 2009 Regulations do not, and do not purport to, take away the Defendant's power to suspend and discipline staff at schools, such as the Claimant's. The Localism Act 2011, section 1, alternatively the Local Government Act 1972, section 112, give the Defendant the power to discipline the Claimant. Mr Oldham accepts that if the governing body has the power to manage the Claimant, then the Defendant should exercise its disciplinary powers with some circumspection. However, it is submitted, this is an exceptional case where the Claimant has not worked at the School for 14 years and the allegations that led to her suspension have nothing to do with her work as a teacher.
41. As for the 2003 Order, that does not, Mr Oldham submits, have the effect for which the Claimant contends. The Order has no effect on the Claimant's or the Defendant's contractual rights. What it does through articles 2 and 3, is to artificially include the governing body as an employer for the purposes of certain statutory employment tribunal claims in circumstances where the governing body has exercised its powers under the 2009 Regulations.
42. In support of the Claimant's contention that only the governing body has the power to suspend the Claimant, Ms Monaghan referred to the decision of the Court of Appeal in Murphy v Slough Borough Council [2005] ICR 721, where the court considered provisions in the 1999 Order identical to those now contained in the 2003 Order. Keene LJ (with whom Neuberger LJ agreed) commented (at para 29) on the effect of the relevant legislation, stating that:

"…One needs to bear in mind that the governing body of a school with a delegated budget is patently given the power by Schedule 16 [to the School Standards and Framework Act 1998 ("the 1998Act")] to appoint, suspend and dismiss a teacher, and that the LEA has no power to prevent suspension or dismissal of a teacher from employment at the school in question. In those circumstances it would be an absurdity if the governing body were not to be held to have the power to grant [maternity] leave to a teacher at its school, whether on compassionate grounds or for any other proper purpose, and to decide whether or not such leave should be paid or unpaid. Its financial powers granted by section 50(3) of the 1998 Act confirm that: see para 10 above. I am satisfied therefore that, for all these reasons, the governing body of such a school has that power and only the governing body of such a school has that power."

43. Mr Oldham contends that the decision in Murphy does not assist the Claimant. First, Murphy was a case where there was no dispute that Ms Murphy was "employed to work at the school". Accordingly the statutory provisions in that case (para 24(1) of Sched. 16 to the 1998 Act) gave the governing body the power to suspend. Second, there was no argument in Murphy that, even in such a case, the authority also had the power to suspend, it being irrelevant to the issues in the case.
44. I find that the Claimant's contract of employment with the Defendant has been varied. In 1992 Mrs Davies was employed to work full time as a teacher at the School. In April 2000 she and the Defendant, her employer, agreed that she would cease her teaching duties at the School for the purpose of carrying out her trade union activities. I accept Mr Oldham's description of the change in her contract: she ceased being a full-time teacher working at the School and became a non-practising teacher carrying out trade union activities full time. That agreement was initially for one year, however it continued from year to year until her suspension in July 2014. As a consequence the Claimant has not worked at the School as a teacher for 14 years. During those years the full time post that she held of Curriculum Support Teacher ceased to exist (see para 20 above). In my judgment the Claimant's original contract of employment has been varied either by express agreement or impliedly by the conduct of the parties, as a result of which Mrs Davies was not at the date of her suspension (and is not) employed by the Defendant as a full-time teacher at the School.
45. The fact that the Claimant has not been issued with a written statement containing particulars of the change does not affect the position. As Mr Oldham observes, the Defendant's failure to update her particulars of employment merely gives her a statutory remedy (see the 1996 Act, s.11).
46. In my judgment there is no legislative provision that has the effect that only the governing body of the School may discipline the Claimant. I reach this conclusion for five reasons.
47. First, the 2009 Regulations do not take away the Defendant's power to discipline staff at schools. Regulation 19, for example, gives the governing body and the head teacher the power to suspend staff. S.19(1) does not state that the governing body has an exclusive power; s.19(3) merely states that if the power under s.19(1) is exercised by the governing body, then only the governing body may end the suspension.
48. Second, I accept Mr Oldham's submission that the purpose of the 2009 Regulations is to enable the governing body of the school to have day to day management powers over those employed or engaged to work in the school. It is a power that enables the governing body to run the school. The Claimant has not worked at the School for 14 years, and even assuming there is work for her to do at the School, she may never work there in the future. She has not been subject to directions from any head teacher at the School since 2000. There is no direct evidence of any contact between her and the School between 2000 and 2007. Since 2007 any contact has related to her pay arrangements and whether she had a right to return to the School. In any event the majority of written communications was between her and the Defendant. Indeed the Claimant said in May 2010 that

"they [the School] did not need to know of my whereabouts. My work involves representing members throughout the borough at various meetings which are generally arranged through the individual school and Haringey HR. It is, therefore important for Haringey HR to know if I am unavailable." (Claimant's WS2, para 13).

49. Third, even if the application of the 2009 Regulations depends on the contractual position of the parties, they do not apply in the present case as the Claimant's contract of employment has been varied so that since 2000 she has not been employed at the School as a teacher, but as a full-time union representative (see para 44 above).
50. Fourth, if the 2009 Regulations do not apply then the School's procedure is not the applicable procedure (see para 38 above).
51. Fifth, the 2003 Order does not have the effect for which Ms Monaghan contends. The Order has no effect on the parties' contractual rights. The Schedule sets out statutory causes of action that the employee can use before an employment tribunal. In recognition of the fact that in community schools the governing body rather than the true employer is likely to be the real decision maker, the Order allows the tribunal to proceed as if, in such claims, the governing body were the employer. The Order, Mr Oldham submits, and I agree, does no more than that. In any event the Order has no application in the present case. The 2003 Order only applies where a governing body exercises employment powers under the 2009 Regulations (see para 26 above); however the 2009 Regulations do not apply because the Claimant was not working as a teacher at the School (see para 44 above). The decision in Murphy does not assist the Claimant for the reasons put forward by Mr Oldham (see para 43 above).
52. I consider that the Claimant falls within the scope of the Defendant's procedure as she is within the category of "all permanent Council employees", and does not fall within the exceptions which relate to staff working in schools.

Conclusion

53. In my judgment, for the reasons I have given, the Defendant does have the power to suspend the Claimant and take disciplinary action against her. Accordingly this claim is dismissed.