United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A SHARLAND (of Counsel) Messrs Stone King Solicitors 13 Queen Square Bath BA1 2HJ


 


JUDGE CLARK

1. This appeal raises an issue on the construction of a contract of employment in writing.
2. The Appellant before the Reading Employment Tribunal, Mrs Honeyman, was employed as a teacher at the Squirrels School, Oxford, a private prep school, from 5 September 1985. Prior to that employment she had 5 years experience teaching in a state maintained school.
3. On 1 September 1996 the school was acquired by the Respondent in circumstances amounting to a relevant transfer under the 1981 Transfer of Undertakings Regulations.
4. On 3 July 1996 the Applicant was offered and signed a new contract of employment

The relevant clause of that contract for present purposes was clause 9, which provided as follows: -

"Your salary is .6 of the trust's salary scale for teachers (£16,335 per annum with effect from 1April 1996 and £16,494 with effect from 1 December 1996). Increments are payable annually on 1 September subject to satisfactory service, until the maximum of the scale (.10) is reached. Further increments may be payable at the Head's discretion in accordance with criteria which will be notified to you. Full details of the Trust's salary scales, as amended from time to time in accordance with the Council's pay policy, are contained in the Trust's notes of guidance for schools, a copy of which is available in the staff room. The Council's pay policy is that no teacher will be paid on salary less than that to which a teacher with a equivalent qualifications, experience and responsibility in the maintained sector is entitled (i.e. before any use of discretion by the governing body) in accordance with the School Teacher's Pay and Conditions document, or other statutory provision made by the Secretary of State for Education."

5. The issues before the Employment Tribunal were

1. What is the true meaning and effect of clause 9 of the contract? Did it mean that pay was based on teachers' experience in the state sector only, as the Respondent maintained, or experience in both the state and private sector as the Applicant argued?

2. Even if that construction point was decided against the Respondent, had the Applicant nevertheless consented to the deduction from her wages because she signed the contract agreeing to a salary of £16,335 which is based on her 5 years experience in the state sector only.

6. By a decision with extended reasons promulgated on 22 October 1999 the Employment Tribunal Chairman Mr M Kolanko, resolved the first question in favour of the Applicant and rejected the consent argument advanced by the Respondent. Accordingly they held that the complaint was well founded and awarded the Applicant the agreed sum of £9,884 back pay.
7. Having considered the submissions made by Mr Sharland in support of the Respondent's appeal against that decision it seems to us that 2 arguable questions of law arise for determination at a full appeal hearing, subject to any argument as to whether or not either or both points were taken below. They are: -

1. Whether the Chairman's construction of the second part of clause 9 was correct. In short, if on a proper construction of the School Teachers Pay & Conditions document, which was in evidence before the Employment Tribunal a teacher in the state maintained sector is not entitled to count any experience in the independent sector, how can it be said that its equivalence in the case of the Applicant is a person who can count years of teaching in both sectors? If the Respondent is correct in their argument on this point, then the claim fails.

2. Even if the Chairman's construction on equivalence is correct, does that not give rise to an inconsistency within clause 9 of the contract? The actual salary specified £16,464 from 1 December 1996 compared with that which she would receive on the basis of her combined state and independent teaching experience. If so, how are the principles of construction, summarised in Chitty on Contracts 1999 edition volume 1 paragraph 12-076, to be applied in this case?

8. On these 2 points we shall allow the matter to proceed to a full hearing, listed for 3 hours category B. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged with this court at the same time.