United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K R REEVES (IN PERSON)
For the Respondent	MR A CHOUDHARY (OF COUNSEL) MS C DOOLEY LONDON BOROUGH OF HAVERING BALLARD CHAMBERS 26 HIGH STREET ROMFORD ESSEX RM1 1HR


 


HIS HONOUR JUDGE PETER CLARK: The Appellant, Mr Reeves, was employed by the first Respondent, Havering, as a mathematics teacher at Gaynes School from 1^st September 1989 until the 31^st August 1997.

1. By his Originating Application to the Employment Tribunal presented on 29^th September 1997, he asserted that at the end of the summer term in 1995 the then head of the mathematics department, Mr Williams retired. No replacement teacher was then recruited into the department because the number of pupils was being reduced due to the loss of the school's sixth form and the remaining teachers in the department were able to deliver the mathematics curriculum. Thereafter the headteacher, Ms Winstone, assigned Mr Hogg an existing member of the teaching staff, to cover the role of head of the mathematics department.
2. The nature of the Appellant's claim, based on alleged breach of contract, centred on his not being given the opportunity to compete for the Head of Department position. He had been number 2 to Mr Williams. He put in case in three ways:-

(i) that the Respondent's were in breach of their equal opportunities policy which he said formed part of his contractual terms and conditions of employment, in not allowing him to apply for the position of Head of Department.

(ii) that they were in breach of the contractural grievance procedure in not allowing him to pursue a grievance in respect of his claim that he ought to have been given an opportunity to apply for the post.

(iii) That by clause 22 of the statement of appointment conditions for teachers teaching appointments in the school were in accordance with the articles of government for the school; that clause 2 of the articles of government for Gaynes School provided that the general conduct of the school shall be under the direction of the governing body of the school, the second Respondent, subject to the provisions of the Education Acts and, in particular, the Act of 1988.

And at paragraph 33 of his form IT1 he contended as follows:-

Schedule 3 of the Education Reform Act 1988 states that for the appointment to fill a vacancy in any teaching post at a school to which section 44 of the Act applies, the governing body of the school shall first of all determine a specification for the post and send a copy of the specification to the local authority and may then advertise the vacancy at any time thereafter and shall do so unless the governing body accepts for appointment to the post a person nominated by the local education authority or the governing body decides to recommend to the local education authority for appointment to the post a person who is already employed to work at the school.

3. It is common ground that section 44 of the 1988 Act applied to Gaynes School at the relevant time. The action was originally set down for a 10 day hearing before the Stratford Employment Tribunal. However, the Respondents made application for an order striking out the claim under rule 13(2)(d) of the Employment Tribunal Rules of Procedure on the grounds that it was frivolous or vexatious.
4. That application came before a Chairman, Miss A M Lewzey, sitting alone on 22^nd June 1998. By a decision promulgated with extended reasons on 6^th July 1998 the Chairman upheld the Respondent's application, struck out the claim in its entirety on the grounds that it was frivolous and vexatious and awarded £500 costs in favour of the Respondents. In so concluding she found:-

(1) that the equal opportunities policy did not have contractual force as between the parties;

(2) that having failed on the first point the claim for breach of contract based on the grievance procedure also failed and;

(3) as to the claim based on the provisions of the 1988 Act, she said this at paragraph 3 of her reasons:-

"The complaint made by Mr Reeves that the Head of Gaynes School acted ultravires the Education Reform Act 1988 is not a matter over which the Industrial Tribunal has jurisdiction. This is more in the nature of an application for judicial review which should be made elsewhere".

5. Against that decision, the Appellant appealed to the EAT by a notice dated 11^th August 1998. The Grounds of Appeal there set out were considered by a division presided over by Judge Collin Smith QC sitting at a preliminary hearing held on 25^th January at 1999. In a full judgement delivered by Judge Smith on that day, all grounds of appeal were dismissed save for 2 grounds which Mr Reeves has helpfully and accurately summarised in his skeleton argument in this way:-

(i) Whether the Tribunal erred in law in failing to deal with the Applicant's case based upon the Education Reform Act 1988.

(ii) Whether the Tribunal erred in law in awarding costs against the Applicant.

6. It is with those two grounds only that we are concerned at this full inter partes hearing.

The first ground;

Mr Reeves has presented his argument to us today in the form of a carefully researched and articulated written submission which we have read and digested. Mr Choudhary has responded to that submission. The issue may be shortly distilled Mr Choudhary accepts that as a matter of general principle, statutory provisions can be incorporated into contracts of employment. The question here is whether the specific provisions of the 1988 Act relied on by Mr Reeves are apt for incorporation, see Alexander v Standard Telephone & Cables Limited (1991) IRLR 286, particuarly paragraph 30, per Hobhouse J.

7. Mr Reeves agrees that the question is properly formulated by Mr Choudhary. If the relevant provisions give rise to public law rights only, then the Chairman was correct in holding that this part of the Appellant's argument is justiciable, if at all, elsewhere; if a private law right based on the contract of employment arises, then the Chairman was wrong and the appeal succeeds on this ground.
8. Section 44(3) of the 1988 Act 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;

(b) the application in relation to such staff of

(i) any disciplinary rules and procedures, and

(ii) any procedures for affording to them opportunities for seeking redresss of any grievances relating to their employment;

shall be subject to Schedule 3 to this Act.

Schedule 3, para 2 deals with the appointment of teachers others than heads and deputy heads.

9. A factual question arises in this case as to whether the arrangement whereby Mr Hogg assumed the responsibilities of Head of Department from Mr Williams amounted to an appointment to fill a vacancy in any teaching post for the purposes of paragraph 2(1) to the third schedule. That issue is crystallised in an exchange of correspondence between Mr Reeves and Mr Ware, the Chairman of the Governing Body, at pages 41 to 42 of our bundle. However, Mr Choudhary accepts, quite correctly, that for the purposes of a strike out application that issue must be resolved in favour of the Appellant. We therefore proceed on the basis that paragraph 2 of the Schedule applies.
10. The relevant provisions of paragraph 2 are as follows:-

(4) before taking any of the steps mentioned below, the governing body shall:-

(a) determine a specification for the post in consultation with the head teacher; and

(b) send a copy of the specification to the authority

(6) the governing body may advertise a vacancy at any time after they have sent a copy of the specification for the post to the authority in accordance with sub-paragraph (4) above, and shall do so unless either-

(a) (immaterial)

(b) they decide to recommend to the authority for appointment to the post a person who is already employed to work at the school

(7) Where the governing body advertise the vacancy, they shall do so in a manner likely in their opinion to bring it to the notice of persons (including employees of the authority) who are qualified to fill the post.

11. It is the Appellant's case, which we accept for present purposes:

(1) that the governing body did not determine a specification for the post of Head of Mathematics and send a copy to Havering (sub paragraph 4);

(2) that the governing body did not recommend to Havering the appointment of Mr Hogg to the post of Head of Mathematics (sub-paragraph (6)); and

(3) that the post ought to have been advertised under sub paragraph (7).

The question is whether those requirements were apt for incorporation into his contract of employment.

12. In our judgement they were not. We think that the position here is analogous to the terms of collective agreements considered in Alexander and the earlier cases. Whereas, here, provisions in the Act relating to suspension and dismissal of any employee are apt for incorporation into an individual's contract of employment, those relating to appointments are not since, by definition, an appointment to a different post is a matter extraneous to the terms of the contract of employment which relates to a given post.
13. In these circumstances we have concluded that the Chairman was correct in her conclusion that the Appellant's case under the 1988 Act was based on a possible infringement of his public law rights and not a private law right. It is not justiciable before the Employment Tribunal.
14. Accordingly, we dismiss the first ground of appeal

The Second Ground

It follows that, having upheld the Chairman's decision to strike out the claim in its entirety under rule 13(2)(d) on the basis that it is frivolous or vexatious, the Chairman had power, under rule 12, to make an order for costs.

We are unable to say that the award of £500 was a perverse exercise of discretion.

In these circumstances the appeal must be dismissed.