United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 700_93_1307

Appeal No. EAT/700/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13th July 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR D O GLADWIN CBE JP

MISS C HOLROYD

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MR J SMITH          APPELLANT

GOVERNING BODY OF NEW MILTON JUNIOR SCHOOL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR A E SAUNDERS

(Lay Representative)

For the Respondents MR R KANE

(Principal Employee Relations Adviser)

Hampshire County Council

The Castle

Winchester

Hants

SO23 8UG


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mr Jack Smith against the decision of the Industrial Tribunal held at Southampton on the 12th, 13th and 15th July 1993.

For the Full Reasons notified to the parties on the 27th July 1993 the Tribunal unanimously dismissed Mr Smith's complaint of unfair dismissal against the Governing Body of New Milton Junior School.

Mr Smith was dissatisfied with that decision he appealed to this Tribunal by Notice of Appeal dated 31st August 1993.

On the hearing before the Industrial Tribunal a large number of points were argued which are not relevant to this appeal. The appeal is confined to a point of law which, it is submitted by Mr Saunders on behalf of Mr Smith, arises from the way in which the Governing Body proceeded with their dismissal of Mr Smith. In order to understand the points on the procedure it is necessary to look at how the dispute arose and at the history of these proceedings. Mr Smith is a school teacher. He was, for the thirteen years or so before his dismissal, a teacher at the New Milton Junior School, a County maintained school. His employment terminated on the 30th April 1992. The circumstances in which it was terminated led him to present an Originating Application to the Industrial Tribunal on the 27th July 1992. At the time of his dismissal financial responsibilities for the school were delegated to the governing body.

His complaint is concisely stated in the application. He said that he had twenty-five years teaching experience and that he was a Grade I teacher at New Milton Junior School from 1979 until he was dismissed by a decision taken on the 15th November 1991 which terminated his employment at the end of April 1992. He dates the difficulties which arose at the school from the appointment of a new head teacher in January 1988, a Mr John Crisp, who he said had progressive ideas about teaching, including `split level' classes made up of two separate years. He said that the teachers did not want that system. He strongly opposed it at staff meetings. In the event, the system, as Mr Smith predicted, was a disaster and had to be scrapped. He complains that the head teacher made it clear that he wanted to impose his teaching methods on Mr Smith's classroom practice. Because of disagreement on his part he was put on what was described as `professional support', a six stage process which led to his dismissal on the alleged grounds that his performance fell below minimum standards required of him. He submitted he was a first class teacher. The procedure adopted of `professional support' was unfair and that he was victimised for not adopting Mr Crisp's teaching methods. He summarises his complaint by saying that the decision of the Governors to dismiss him was, having regard to his record of achievement, unfair and perverse. He was a respected well loved teacher recognised for his caring attitude, his responsible position and his highly successful results. He says he was dismissed in the teeth of bitter opposition publicly expressed by parents and children.

The complaint was contested by the Governors who succinctly stated their reason for Mr Smith's dismissal as that his performance as a teacher fell below the standards required by the Governing Body. The Notice of Appearance dated 2nd September 1992 sets out their case in detail. It refers specifically for the procedure for professional support which Mr Smith had criticised as unfair. The Governing Body took a different view saying that the procedure used was fair and comprehensive and the Governing Body stated its defence in the final paragraph of its Notice of Appearance by saying this:

"it was the respondent's view in this case that Mr Smith's inadequate performance as a teacher was related to his lack of capability for performing his work. However, in view of his poor responsiveness to aspects of the professional support which he was offered, it is possible that ultimately Mr Smith's sub-standard performance derived from some mixture of lack of capability and conduct. Accordingly, both are submitted as potential elements of the reason(s) for dismissal, notwithstanding that the respondent dealt with the matter under the procedure for dealing with lack of capability, given that this was seen as the predominant reason and the support procedure more appropriate and favourable to the applicant."

Those two documents because clearly identify the main points the Tribunal was asked to decide when the hearing started on the 12th July 1993.

The Tribunal gave a detailed account of their reasons for rejecting Mr Smith's complaint. They summarised the issue correctly by saying that Mr Smith's case was that his dismissal was unfair and that the reason for his dismissal was either personal animosity of Mr Crisp or redundancy and a desire to cut costs. The Governing Body's case was that Mr Smith had failed to comply with the `professional support' procedure and that his dismissal was fair.

In our view, the Tribunal helpfully stated early in its decision what the case was not about. They said it was not about whether Mr Smith was a good teacher or not. The Tribunal was no more qualified than we are to be a judge of teaching ability. They also made it clear that the case was not about a choice between traditional and progressive methods of teaching. The real issue for the Tribunal was correctly identified in paragraph 9 of the decision as:

"a. to ascertain the reason for the dismissal

b. to ascertain whether the respondents [the Governing Body] acted reasonably in treating that reason as the reason for the dismissal."

The Tribunal reviewed all the evidence that they considered to be relevant to those issues. They reached the decision that there was a justifiable reason for Mr Smith's dismissal. He had deliberately chosen not to comply with the `professional support' procedure. That amounted to a conduct reason within the meaning of the Employment Protection legislation. Having held that that was a reason, they rejected the other reasons which Mr Smith had advanced, namely the animosity of Mr Crisp, who he thought was out to get him, and the reason of redundancy and cost cutting. The Tribunal stated in the clearest terms: (paragraph 77)

"We are satisfied that the reason for the dismissal was the applicant's lack of co-operation with the Professional Support Scheme."

The Tribunal correctly moved to the question whether it was reasonable on the part of the Governing Body to dismiss Mr Smith for that reason. They looked at s.57 of the Act, and correctly asked themselves whether the Governing Body believed the conduct alleged against Mr Smith whether there were grounds for that belief and whether that belief was formed after reasonable investigation. The Tribunal was satisfied on all those points and concluded that the Governing Body had acted reasonably in treating Mr Smith's failure to co-operate as the reason for dismissal.

The appeal to this Tribunal does not attack the decision of the Tribunal as to the reason for dismissal. It does not directly attack the conclusion of the Tribunal that the Governing Body acted reasonably in dismissing for that reason. The ground of appeal is on a different point raised before the Industrial Tribunal but decided adversely to Mr Smith. That point is what may be called "the procedural objection". The Tribunal considered various arguments advanced as to how the Governing Body had not adopted the correct statutory or contractual procedure for dealing with a dismissal of a member of staff at the school. The Tribunal reviewed the relevant statutory provisions, in the Education Reform Act 1988 and in a Statutory Instrument (1989 SI No.1503).

The Tribunal indicated that the procedure that was in fact adopted by the Governing Body was one which had been agreed with the unions and allowed for just representations to be made by Mr Smith, both at the initial stage of whether or not to dismiss, and on the appeal against the decision to dismiss him. The Tribunal considered all the arguments presented on behalf of the Governing Body and by Mr Saunders on behalf of Mr Smith and said in conclusion: (paragraph 62)

"We consider the procedure was dealt with impeccably."

The Tribunal considered a further complaint that there was prejudice or bias on the part of the panel entrusted by the Governing Body with hearing representations on the proposal to dismiss Mr Smith. The Tribunal said they had no hesitation in rejecting the allegations of bias.

What are the procedural objections to what the Governing Body did? In order to understand the arguments which Mr Saunders has reiterated here it is necessary to look at what the Governing Body did in the context of the statutory provisions governing the dismissal of staff. The main difference between the parties on this appeal is that Mr Saunders says that the statutory provisions were not complied with. The consequence is that the decision to dismiss Mr Smith was a nullity. The argument for the Governing Body is that all the relevant statutory provisions were observed. In particular the Governing Body complied with the model procedure contained in the bundle of documents in page 82 onwards and that at no time when the procedure was being implemented in relation to Mr Smith's dismissal was any complaint or objection made.

The statutory provisions are complicated. They are not made easier to understand by the fact that they are scattered in two different Acts and in a Statutory Instrument. The broad picture is, however, clear. We start with the Education Reform Act 1988. S.44 is the first of a group of sections which deal with financial delegation, appointment and dismissal of staff. Section 44(3) provides:

"Subject to the following provisions of this section:

(a) the appointment, suspension and dismissal of staff at a school to which this section for the time being applies and the determination of their duties, grading and remuneration shall [and I omit (b) which is not relevant to this case] be subject to Schedule 3 to this Act."

The section directs the reader to Schedule 3 which deals with the appointment and dismissal of staff during financial delegation.

It is common ground on the appeal that the relevant provisions are contained in paragraphs 8 and 9 which are headed "Dismissal". Paragraph 8(1) reads:

"Where the governing body of any school to which s.44 of this Act for the time being applies determine -

(a) that any person employed to work at the school should cease to work there; [I can omit (b)]

they shall notify the local education authority concerned in writing of their determination and the reasons for it."

Paragraph 8(2) reads:

"If in a case within sub-paragraph 1(a) above -

(a) the person concerned is employed to work solely at the school; and

(b) he does not resign;

the authority shall, before the end of the period of fourteen days beginning with the date on which the notification under sub-paragraph (1) above is given in relation to him, either give him such notice terminating his contract of employment with the authority as is required under that contract or terminate that contract without notice if the circumstances are such that they are entitled to do so by reason of his conduct."

Paragraph 9 reads:

"Subject to sub-paragraph (2) below"

(it is agreed that that is not relevant)

"a local education authority shall not dismiss a person employed by the authority to work solely at a school to which section 44 of this Act for the time being applies except as provided by paragraph 8 above."

It is necessary to look back at sub-paragraph 7 and 8. The two paragraphs which form the main basis of Mr Saunders' argument provide:

"(7) The governing body of such a school shall make arrangements for affording to any person in respect of whom they propose to make any determination under sub-paragraph (1) above an opportunity of making representations with respect to the action they propose to take, including (if he so wishes) oral representations to such person or persons as the governing body may appoint for this purpose, and shall have regard to any representations made by him.

(8) The governing body of such a school shall also make arrangements for affording to any person in respect of whom they have made such a determination an opportunity of appealing against it before they notify the authority of the determination."

In order to complete the picture of the dismissal procedures it is necessary, finally, to look at the Regulations made dealing with the government of schools. Under the Education (No.2) Act 1986, as amended by s.116 of the Education Reform Act 1988, the Secretary of State has powers to make regulations providing for meetings and proceedings of the governing body of county, voluntary and maintained special schools, including provision modifying that made in subsection (1) of s.8 of the 1986 Act and the circumstances in which persons are to be disqualified from holding office as governors of such schools.

The power to make regulations contained in s.8(7) of the 1986 Act (as amended) empowers the Secretary of State to make regulations inter alia:

"(aa) for the establishment of committees by governing bodies of such schools (whether or not including persons who are not members of the governing body concerned) and for the constitution, meetings and proceedings of such committees:

(ab) for the delegation of functions of the governing body of any such school in prescribed circumstances to committees established by that body, to any member of that body or to the head teacher."

The final stage in the process of determining the dismissal procedure is to look at the Regulations which the Secretary of State made pursuant to those powers. Those Regulations are referred to in the Tribunal's decision as SI 1989/1503 and are called the "Education (School Government) Regulations 1989". The relevant Regulations are contained in Part III under the heading "Delegation of functions and establishment of committees". It is agreed that the relevant Regulations are 25 and 26. Regulation 25 deals with the delegation of functions in these terms:

"Subject to paragraphs (3) and (4), the governing body of a school may resolve to delegate to a committee established in accordance with regulation 26 or to any member of the governing body, or to the head teacher, if he is not such a member, any of its functions other than those listed in paragraph (2)."

Paragraph (2) is a list of functions which may not be delegated under paragraph (1). They are listed as (a) to (v). None of those include powers of dismissal. Regulation 25(3) provides:

"The functions of the governing body of a school under paragraph 8 of Schedule 3 to the 1988 Act shall not be delegated to an individual, but may (subject to regulation 26(5)) be delegated to a committee."

The wording of that requires one to look at Regulation 26(5) which deals with the establishment of committees. Regulation 26(5)(a) provides:

"A committee to which any functions are delegated under regulation 25(3) shall include not less than three members of the governing body and, where a committee is established to take any initial or preliminary decision as to the dismissal of any member of staff (referred to below in this paragraph as a `first committee'), no member of that committee shall take part in the proceedings of any committee established to consider any appeal against that decision (referred to below in this paragraph as an `appeal committee'); and

(b) the membership of an appeal committee shall include no fewer members of the governing body than that of the first committee the decision of which is subject to appeal;"

Regulation 27 states in relation to reports by the governing body that:

"Where any functions of the governing body of a school have been delegated to a member thereof, the head teacher or a committee established in accordance with regulation 26, that member, head teacher or committee shall report any action or decision taken in relation to those functions to the next meeting of the governing body."

That exhausting statement of the relevant statutory provisions and the Regulations is, necessary to appreciate the arguments of Mr Saunders on this appeal. His submissions are based, in the main, on an argument that the Governing Body failed to comply with the statutory procedure for dismissal.

What happened in this case, as a matter of fact, was that at the time of Mr Smith's dismissal financial responsibility for the New Milton Junior School had been delegated to the Governing Body by the Local Education Authority. The procedure adopted was that, prior to Mr Smith's dismissal, he was given an opportunity to make representations to a panel of the Governing Body consisting of three members, a Mrs Drake and two other members. Mrs Drake was the Chairman. The Governing Body purported to appoint them for this purpose under Schedule 3 of the 1988 Act and under the Regulations quoted. There was a formal hearing before the panel. Mr Smith was represented by his Union. Evidence was heard from the Headmaster and from other witnesses. After considering documents, which were before the Industrial Tribunal, that panel decided to dismiss Mr Smith. He wished to appeal as was his right. An appeal hearing took place at which Mr Smith was represented, this time by a Solicitor, Mr Bowden. The appeal hearing took place on the 14th November. It lasted about 10 hours, ending in the early hours of the morning. The Appeal panel consisted of a Chairman Mrs Outhwaite, (she was Vice Chairman of the Governors) and by two other Governors. None of the people on that Appeal Panel had been involved in the original decision to dismiss taken by the first panel or committee. The Appeal Panel rejected Mr Smith's appeal. It was in those circumstances that he started the proceedings in the Industrial Tribunal. What is wrong with that procedure?

Mr Saunders, who has researched the case with great thoroughness, submitted that the procedure was seriously flawed. He said, first, that the Governing Body of the School had acted in breach of paragraph 8(7) of Schedule 3 in that they omitted to appoint as persons to hear the representations people who were independent of the Governing Body. He argued that the reference in paragraph 8(7) to "such person or persons" was a reference to people who were not Governors of the School. What the Governing Body had done, quite unlawfully in his view, was to entrust the hearing of representations to a body of people, who consisted of three of the body of Governors. They were not independent of the Governing Body. The argument, therefore, was that the proceedings of the first panel or committee were not in conformity with the statutory requirements.

His second submission related to the appeal stage. The argument there was that there was a violation of the principles of natural justice by adopting a procedure under which the members of the Second Committee, or Appeal Panel were themselves Governors. Although they were different people, from the first committee they were in fact hearing an appeal against a decision of their fellow Governors. That was against the principles of natural justice which required decisions to be taken by people no direct interest in the case.

His third submission was that the Regulations 25 and 26 relating to delegation by a governing body to a committee in relation to dismissal were ultra vires and could not be relied upon by the Governing Body to appoint the First Committee to hear representations or the Second Committee to hear an appeal.

Fourthly, he said, and this was a slightly different way of putting a point already made, there was an implied term in Mr Smith's contract of employment that the Governing Body would adopt a fair and reasonable procedure and would observe that procedure in relation to his dismissal. They had not done so. That amounted to a fundamental breach by the Governing Body of its contractual duties to Mr Smith.

We hope that that summary does justice to the detailed points which Mr Saunders made in the Notice of Appeal and also in a lengthy letter to the Tribunal dated 28th October 1993. He has supplemented these submissions in oral argument. He has referred us to an important decision in relation to delegation, Vine v. National Dock Labour Board [1956] 3 AER 939. The passage on which he relies is in the speech of the Lord Chancellor at p.943 where the Lord Chancellor explained the importance of disciplinary functions and of how the exercise of those functions should be by the people to whom those functions have been entrusted. There is no power to delegate the discharge of that duty to another body of people, unless there is something express in the scheme or legislation which empowers that. As Lord Kilmuir said the duty there was placed on the local board and the people aggrieved are entitled to have their case decided by that board, unless the scheme provides otherwise. In that case the conclusion of the House of Lords was that delegation was not possible and the decision taken by a disciplinary committee under delegated powers was a nullity and could not be cured by an appeal.

We have carefully considered all these arguments. We have come to the conclusion that they are not sound. We accept the submissions made on behalf of the Governing Body by Mr Kane in a helpful written submission provided to the Tribunal during the hearing. His answer to the points was as follows. Dealing with Mr Saunders' point on the composition of the First Committee, the fallacy was in the construction of the provisions of paragraph 8(7) of the 3rd Schedule to the 1988 Act. Nothing is said in paragraph 8(7) which prevents the governing body from appointing as persons to hear representations members of the governing body. Mr Saunders' argument that the reference to "such person or persons" meant independent persons is something that the words do not mean. The words contemplate, if the governing body think fit, the appointment of persons who may not be governors. But there is nothing in the wording of the paragraph which prevents the governing body appointing governors to hear the representations. It is a matter for their discretion whether they include in the First Committee people other than governors.

We agree with Mr Kane that it is not open to this Tribunal, as a matter of construction to read in, or write in, the word "independent" before the expression "such person or persons" as the governing body may appoint.

The submission on the second point relating to the violation of rules of natural justice on the appeal is, we think, also misconceived. There is no violation of the rules of natural justice if the procedure adopted complies with the procedural structure set by statute. The structure set by statute clearly contemplates that the governing body may appoint, for the purposes of hearing an appeal, a body of persons who include governors. The only relevant restriction is that the committee shall include no fewer members of the governing body than that of the First Committee, and that no person who sat on the First Committee shall take part in the proceedings of the Appeal Committee. Those limitations on the composition of the Appeal Committee were observed. There is nothing in the argument that natural justice was violated.

As to the third argument that the Regulations, which are inconvenient to Mr Saunders' argument, should be ignored because they are ultra vires, the short answer is one that may not sound very convincing to a layman, but is sound legal doctrine, if, in legal proceedings, a party wishes to attack the validity of legislation, the appropriate procedure is not in proceedings brought to air a private law grievance, such as unfair dismissal, but public law proceedings brought against the public official, who may be a Minister, to challenge the validity of his official actions by way of judicial review. No such proceedings have been brought in this case. The Industrial Tribunal has no jurisdiction to hold that the Regulations made by a Minister of the Crown are beyond his powers. It would be necessary for Mr Smith or those acting on his behalf to obtain the leave of the High Court to bring proceedings for judicial review under Order 53 of the Rules of the Supreme Court. The respondent to those proceedings would not only be the Governing Body of New Milton Junior School. The respondent would also be the Secretary of State who made the 1989 Regulations. If the Industrial Tribunal, as we believe, had no power to rule on the validity of the Regulations no question can arise on this appeal as to their validity. Our powers are confined to hearing points of law which arise from the decision of the Tribunal. The Tribunal had no power to make the decision on this point.

The final argument as to the implied term is only a different way of re-stating the complaint about procedure in the contractual framework instead of the statutory framework. If there is an implied term in Mr Smith's contract of employment it is that the Governing Body would observe the procedure laid down by statute and regulation. They did. They complied with the law and Mr Smith had no complaint either in contract, in violation of the statute or in violation of principles of natural justice.

We agree with the Industrial Tribunal that the procedure followed in this case was impeccable. We repeat that, although these points have been fully ventilated before the Industrial Tribunal and on this Appeal, it is of some significance that they were not raised at the time when the procedures were being implemented. It has never been suggested, even now, that the Governing Body failed to comply with the model procedure which had been agreed with the unions and which followed a guidance circular issued by the Department in September 1988.

For all those reasons we find that the Industrial Tribunal came to the correct conclusion on the issue of procedure. Their other conclusions have not been challenged on the appeal. The appeal will be dismissed.