United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR K J CADOO (Representative) The Legal Protection Group Ltd Marshall's Court Marshall's Road Sutton Surrey SM1 4DU


 


JUDGE JOHN BYRT QC: This is a preliminary hearing on an appeal against the decision of the Industrial Tribunal sitting at London (South). Its decision was promulgated on 1 April 1997. By that decision it held unanimously that Ms Gorst was dismissed in breach of contract and by a majority that she had also been unfairly dismissed in a redundancy situation.

The facts quite shortly are that Ms Gorst worked in the Respondents' pre-prep school and had done so since about January 1990. Numbers unhappily dwindled and by the spring of 1996 the school management appreciated that a redundancy situation had developed. They could not be certain the extent to which there would have to be redundancies declared because at that stage they did not know what the intake would be in the following September, a common problem for anybody who has to manage a school.

The result was that, whereas the school management would have been obliged by contract to give any teacher whose employment they were to terminate, one clear term's notice, it was apparent to them that they were not going to be able to know who to dismiss prior to finding out what the intake was in the September and that could not be ascertained as at the beginning of the term. The result was that there was a meeting management arranged on 1 April 1996 with all of the teachers who were likely to be the subject of selection for redundancy, and on that date management secured from the teachers an agreement that the terms of their contract would be varied so that the management could postpone for three weeks making a final decision relating to termination of their contracts.

There was a further meeting on 20 May when it was decided that they still did not have firm enough information upon which to terminate anybody's employment and they sought a further variation of the contract by seeking an extra week's extension for their deliberations. At that meeting Ms Gorst sat quiet, did not participate in the meeting in any obvious way but at the end of it, management (Mrs Lee, the Headmistress) understood that the general consensus was that they would accept a further variation and grant the extra week's extension. During that extra week they debated the issue of redundancy and on 24 May Mrs Gorst was made redundant as from 31 August.

There was another issue as to whether her selection for redundancy was fair in view of the fact that there was another unqualified teacher, who did part-time work in the pre-prep school as well as looking after games activities in the main school.

About the fairness of her selection in those circumstances; there was a divide in the Industrial Tribunal. The majority found there was an alternative job that she could have had had the employers being so minded to offer it to her. The Chairman said that there was no real such alternative.

On the first issue as to whether there was a variation of the contract accepted by Ms Gorst, the Industrial Tribunal found that she did not accept it, but quite plainly they turned their face against the possibility that she might have accepted such a variation by conduct, namely, by being present at the meeting, by saying nothing, by accepting without challenge a letter from the Headmistress in due course in which she thanked everybody for agreeing to the extra extension.

We think it arguable that she may have agreed to the variation of the contract by her conduct in keeping silent in that situation. The employers wish to argue that point and, provided we have jurisdiction, we think they should have their full hearing.

On the issue of the fairness of the selection for redundancy, it is plain that there is an arguable point there since the Tribunal itself was split in its assessment of the situation. Again, that is a matter which would ordinarily go through to a full hearing.

There is a jurisdiction point, however. It is a real possibility, which has yet to be determined, that this Tribunal does not have jurisdiction to entertain cases based upon contract. I need not go into the details of that issue now, but it is sufficient for us to say that we cannot immediately accept jurisdiction. In view of the comments we have made earlier about the merits of the employer's case, we think that if it is established that this Tribunal does have jurisdiction then it is right that these two points which have been argued on behalf of the employers, should go through to a full hearing without the need for them to be brought back for a further preliminary hearing.