United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A TABACHNIK (of Counsel) Instructed by: Messrs Martineau Johnson Solicitors St Philips House St Philips Place Birmingham B3 2PP
For the Respondent	MR D CRAIG (of Counsel) Instructed by: Messrs Reynolds Porter Chamberlain Solicitors Chichester House 278-282 High Holborn London WC1V 7HA

SUMMARY

Contract of Employment

Unfair Dismissal

The ET correctly construed the claimant's contract that she was employed to teach specific subjects (health and children) and could not be required to teach RS. Insistence on this was a fundamental breach and constructive unfair dismissal. Since both sides appeal, or are likely to appeal the Remedy decision, conciliation by ACAS on the award must be considered.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about the construction of the contract of employment of a career teacher, required by her College employer to take on a different subject from that which she had been teaching for nine years, resulting in resignation and a claim of constructive unfair dismissal. The judgment represents the views of all three members who had the advantage of seeing papers again since this case initially had a false start before us. We will refer to the parties as Claimant and Respondent.

Introduction

2. It's an appeal by the Respondent in those proceedings against a decision of an Employment Tribunal, Chairman Mr D Hewitt, sitting in Birmingham over five discontinuous periods of eight days spanning seven months, including two days in Chambers, a period said in this case to be quite long enough. The decision was registered with Extended Reasons on 17 February 2004. We have had no explanation of the reason for such fractures in the hearings which appear unsatisfactory.
3. The Claimant represented herself and is represented today by Mr David Craig of Counsel. The Respondent was represented there by a solicitor who today instructs Mr Andrew Tabachnik of Counsel. The Claimant claimed constructive unfair dismissal. The Respondent denied dismissal and asserted in any event that the procedures it adopted were fair, thus denying unfair dismissal.
4. The essential issues as defined by the Employment Tribunal referring to the documentation in the case were as follow:

"8. The crucial question that then arises is whether a proper interpretation of that documentation entitles the respondents to require the Claimant to teach Religious Studies against her wishes. The respondents say that it does-that their contract with the Claimant entitles them to require the Claimant to teach a subject other than her main specialism whether she wants to or not; the Claimant says that is not the case, she was appointed to teach a particular subject and to require her to teach another subject against her wishes is a unilateral variation of her contract of employment."

The Tribunal decided that the Claimant was constructively unfairly dismissed. It awarded her something over £7,000 of which more than £4,000 is subject to a separate appeal not heard today. The Respondent appeals against the liability decision. Directions sending this appeal to a full hearing were given by me.

The legislation

5. The only relevant piece of legislation is section 95(1)(c) which deals with what is conveniently known as constructive dismissal:

"95(1)

(c) the employee terminates the contract under which is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."

Section 98(1) deals with potentially fair reasons and section 98(4) with fairness. The Employment Tribunal directed itself by reference to the relevant provisions.

The facts

6. The Tribunal stated the facts briefly as follows:

"a. The respondents are an incorporated college of further education based at Erdington. The college has a total of approximately 4500 students including 3000 part-time.

b. The Claimant was first employed by the respondents on 1 September 1993 as a teacher of Caring and Nursery Nursing in the faculty of Community and Behavioural Studies. The Claimant's job description was issued in March 1994 (P2 in the Bundle) describing her as a teacher of Health Studies and. the Person Specification attached talks of a Health Service Tutor. The Claimant signed a Contract of Employment on 21 July 1994 (P3) which described her Job Title as teacher of Caring and Nursery Nursing.

c. The Claimant had obtained a degree in Religious Studies and Education in June 1978 and from April 1.980 to December 1982 had taught Religious Education and Maths at primary level to years one, two and three (now Key Stage 3). The Claimant made a conscious decision in 1982 for strong personal reasons to abandon teaching Religious Education and worked for 10 years in the National Health Service as a Registered General Nurse and a Registered Health Visitor prior to joining the respondents in 1993.

d. In June 1999 the Claimant was appointed Leader of the Childcare and Education Team responsible for Council for Awards in Childrens Care and Education (CACHE) -CACHE being an awarding body similar to City & Guilds. Team Leader is the first level of management above classroom teacher. This appointment did not result in any change to the Claimant's written contract of employment or Job description."

The Respondent then decided that it would lay on a course in Religious Studies. The assistant principal of the College Dr Yeo began a series of meetings involving the Claimant, the impact of which was that the Claimant should teach a Religious Studies course with effect from September 2002. The Claimant refused notwithstanding a number of meetings both before and after 24 June 2002, including correspondence between the relevant parties and the Claimant's involvement of her trade union. In September 2002 fifteen students enrolled in the Religious Studies course. The Claimant expressed her intention to resign on 12 September 2002. She began sick leave on 4 October and handed in a letter of resignation on 25 October 2002 which had the effect of drawing her employment to an end on 31 December 2002.

7. The Tribunal noted that the Claimant had been engaged in a career change as the above findings made clear. The Tribunal also noted as follows:

"z. Within the College teachers have taught subjects other than their main specialities, examples of which can be seen at IRS 12. In many cases the alternative subject is akin to the main specialism. The Tribunal has heard little evidence as to the personal circumstances of the individuals named in JRS 12 or of their motivation for accepting the alternative role."

Central to the Tribunal's consideration was an examination of the documentation to which we will turn in due course. The Tribunal regarded this as poorly worded, but held that the only sensible interpretation of relevant parts of one of the documents was that the Claimant was engaged as a teacher of a specific subject, broadly speaking to do Caring and Nursery Nursing and Health Studies. Thus, the Tribunal rejected the Respondent's construction. It also rejected submissions as to what was described as common practice in further education, for teachers to be required to teach a subject other than their own specialism. It rejected those submissions by indicating that it had heard no evidence as to the practices. No appeal has been launched upon that ground.

8. The Tribunal came to the view that requiring the Claimant to teach a subject she was not employed to teach, and did not want to teach, amounted to a breach of contract, in this case a fundamental breach, and that in believing as she did the Claimant regarded herself correctly as constructively dismissed. The Tribunal then went on to consider fairness under section 98(4) and held, notwithstanding what were described as various matters to do with consultation, the Respondent was acting unfairly in breach of section 98(4).

The contractual documentation

9. The Tribunal had found (paragraph 4(b) of its reasons) that the Claimant had been engaged as a teacher of Caring and Nursery Nursing. The documentation is as follows: There is a contract for full time teaching staff in which the job title of the Claimant is described as teacher of Caring and Nursery Nursing. This was signed on 21 July 1994. It expressly incorporates appendix 4 of a handbook. This describes the professional duties of teachers. The documentation also includes a person specification for Health Studies Tutor and a job description for a teacher of Health Studies. Both documents are said to have emerged in March 1994. Thus, the Tribunal relying upon oral evidence, made the finding as to what the Claimant's engagement was, when first employed. This finding plainly comes from a basis of evidence, for we have been shown the Claimant's witness statement whereas she indicates that she was applying pursuant to an advertisement for a Health Visitor, requiring as an advantage a teaching qualification. She described the purpose of this position as follows:

"The post was created to met the requirements of the awarding body the NNEB now CACHE for the introduction of new diploma in Nursery Nursing. She was also required to do other courses."

10. As against that, the material advanced by the Respondent, in so far as it is available to us, consists solely of the following statement: The Claimant was first employed by us on 01/09/1993, primarily to teach Early Years (Childcare). The Tribunal made a finding upon the evidence which was open to it as to the nature of the engagement prior to contractual documentation being given to her. It will be recalled that the Employment Rights Act 1996 section 1 requires a statement of particulars to be given to an employee which must include a job title or a brief description: see section 1(3)(f). Thus, for most of her first year, the Claimant was without the proper documentation and it is hardly surprising that the Tribunal came to the conclusion that any material was poorly worded.
11. In the contract there are, so far as is relevant to our proceedings today, the following two provisions:

"N.B. More detailed provisions relating to many of the terms and conditions set out in this contract are to be found in the Conditions of Service Handbook."

1. DUTIES

…

1.2 You may be called upon to perform any duties set out in Appendix 4 of the Conditions of Service Handbook which may reasonably be assigned to you. The particular tasks required of you will be specified are consistent with the list of duties laid down in Appendix 4 of the Conditions of Service Handbook and that changes will only be made after consultation with you."

Mr Craig in his written Skeleton Argument helpfully divides up the paragraph into its three constituent parts which are based upon the three separate sentences. The reference to Appendix 4 is to a document headed professional duties, in which there is the legend. The following duties shall be deemed to be included in the professional duties which a teacher employed by a Sixth Form College may be required to perform.

12. Understandably it includes teaching and sets out not just classroom work but also the assessment and recording of the development and progress of all students. In addition, there are other activities as one might expect: communications with parents and participation in meetings, appraisal of staff, staff development, discipline, staff meetings. This document plainly applies to every teacher at the College. The way in which it is to be operated in respect of each teacher will vary according to the nature of the subject taught.
13. Of controversy in this case, is the provision relating to cover for others:

"8. supervising and so far as practicable teaching any students whose teacher is not available to teach them:

provided that no teacher shall be required to provide such cover:"

That broad requirement is the subject of a number of qualifications so that the College does not have an absolutely unfettered right to require another teacher to take over duties in certain circumstances. It is couched in terms which include so far as practicable and a list of caveats. In addition to those two documents is the job description which provides as follows:

"Job Description

Penny Parsons Standard National Scale

Teacher of Health Studies

Within the general duties and responsibilities of a teacher, the specific duties will be

(a) to contribute to the teaching of the Faculty of Community and Behavioural Studies, with particular emphasis on Health and Nursery Nursing.

Responsible to the Head of Community and Behavioural Studies Faculty.

(b) to be a Personal Tutor and to carry out the duties in accordance with the general job description of "Personal Tutor"."

and the person specification:

"Person Specification

The person will

contribute to the Heath Studies components of the NNEB modular course, BTEC First in Caring, BTEC National in Social Care, and GNVQ Levels 1, 2 and 3 in Health and Social Care.

be flexible and adaptable to the styles and needs of the different courses.

work as a member of course teams and contribute to the planning and implementing of courses.

bring expertise of field work in Health Care.

monitor NNEB students' progress and experiences through visiting placements and liaising with supervisors.

Assist with developing and maintaining good working relationships with care providers and other agencies relevant to children 1-7 years.

Be a course tutor for a NNEB group on expansion in September 1994."

The Respondent's case

14. Mr Tabachnik on behalf of the Respondent submitted that the Tribunal had erred in law in that the plain construction of the contractual documents admitted no other approach but that the Respondent had a power to require a teacher to change from one subject to another, providing that there is consultation. The only other qualification which he admits to fetter this, seemingly unfettered, power is that such a change would not be made if the subject proposed were patently beyond the capability of the relevant teacher, for example in our case if the Claimant were required to teach Latin or Chinese or Computer Studies. Apart from that there is an ability in the Respondent to make the changes which have been suggested, broadly speaking, subject to the capability of the Claimant, the Claimant's interests and the Respondent's needs. The purpose of this contract is for the mutual advantage of both parties, that they should be flexible. There can be movement in emergencies and in any event flexibility is part of the factual matrix against which the construction of this contract should be weighed. Reliance was placed on the judgment of the House of Lords in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 (particularly the speech of Lord Hoffman at 912.
15. As to the contract itself, the ability of the Respondent to move is subject to the conditions of service handbook which is applicable to all teachers. In short, the Claimant was engaged as a generic teacher or a general teacher and could be required to take up duties in a different discipline provided the caveats (noted above) apply. If there were a measure of ambiguity, resort must be had to the contractual purpose and only if there were a conflict at that stage in deciding upon what the correct construction was, is it illegitimate to resort to the rule of construction which entitles a court to construe a document against its maker. As to the second ground of the appeal which is inextricably linked to the first, it is contended that the breach, on this footing, was not of fundamental nature. There had been proper consultation and it was perverse to categorise the decision by the College as one of unfair dismissal. The Tribunal fails to deal with the issue of consultation and so the only issue is one of a technical breach which could not be described as one of fundamental nature.

The Claimant's case

16. On behalf of the Claimant it is contended by Mr Craig, in line with Mr Tabachnik, that construction of a document does not take place in a vacuum and the factual matrix and purpose of the agreement are important. In this case, the purpose of the College was to engage a teacher of Caring and Nursery Nursing and not to engage a general teacher. The purpose of the Claimant, following her career change, was to be employed as such a teacher and not as a general teacher. The Employment Tribunal plainly had in mind the specific nature of that contract for there are at least four references (paragraph 4(b) of the reasons) to the specific nature of the Claimant's engagement. The Claimant answered a public advertisement for a person with specific skills. Thus, the Claimant was not a teacher first and foremost, but was a teacher of a specific subject.
17. Appendix 4 incorporated into the contract includes additional duties for teachers, but when Appendix 4 deals with specific duties in relation to students they broadly refer to the teacher's own students in the particular discipline for which he or she is engaged. In any event, since it imposes what is described as a self imposed limitation on the ability of the College to move persons around, there is an implication that the College does not have the unfettered right to move. The purpose of this contract was to secure and provide by agreement a teacher with the relevant subject discipline. As far as the Claimant was concerned, she had the capacity to discharge the functions of that job and not to do so, in respect of a teacher of Religious Studies.

The legal principles

18. The legal principles to be applied in this case appear to be as follow. As far as constructive unfair dismissal is concerned, it is accepted that the summary of the law, as given by Mr Tabachnik in his Skeleton Argument is correct:

"5. In the alternative, if the ET was correct in finding that the College was in breach of contract, the next question which arose (as part of a determination as to whether Mrs Parsons had been constructively dismissed) was whether the breach of contract in question was fundamental. Only a fundamental breach will suffice in this context: see Western Excavating Ltd v Sharp [1978] 1 QB 761 at 769a-c per Lord Denning MR and Hutchings v Coinseed Ltd [1998] IRLR 190 at para 26 per Evans LJ (a repudiatory breach requires proof of conduct "wholly inconsistent" with the continuation of the employment relationship).

A Tribunal must give sufficient reasons for its decision to be understood: see Meek v City of Birmingham District Council [1987] IRLR 250.

19. In the construction of the contract, these principles in Investors Compensation Scheme Ltd (above) are relevant:

"(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2) The background was famously referred to by Lord Wilberforce as the "matrix of fact," but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must for whatever reason, have used the wrong words or syntax: see Mann Investments Go. Ltd. v. Eagle Star Life Assurance Go. Ltd [1997] AC 749."

When a primary document incorporates a secondary document and the two are inconsistent, the former prevails, a submission made to us by Mr Craig not disputed by Mr Tabachnik.

Conclusions

20. We prefer the arguments of Mr Craig and consider that the Tribunal did not err in its construction of this contract and have decided that the appeal should be dismissed.
21. It seems to us that the reality of the relationship between the Claimant and the Respondent, was that the Respondent was seeking a teacher for a specific function, broadly speaking involving Nursery Nursing and Caring and for which the Respondent could draw upon the Claimant's long service in the NHS. The contract itself makes a number of specific references to the post, in particular the job title. Although it is true that there are qualifications in clause 1.2 and the job description may be changed, it must be borne in mind that there is no reference to the title of the job being changed as was in envisaged in this present case.
22. We do not accept that there is anything inconsistent about Appendix 4, but if it were then the rule which we have cited above would give primacy to clause 1.2. What Appendix 4 does very sensibly is to tell all teachers in this College what there general duties are. It does not tell them how to teach the subject of Caring and Nursery Nursing or any particular subject. This document is of a general application and we accept the submission Mr Craig made to us in relation to cover. If it were indeed the unrestricted right of the Respondent (subject to the small caveats we have cited from Mr Tabachnik's argument) that it could move the Claimant in the way it sought to do, there would be no need for the provision on cover.
23. The person specification is specific to the duties to be performed in the discipline for which the Claimant was engaged. Of the seven sub-paragraphs describing as the attributes of the person to do the job as a Health Studies Tutor each one is specific to what would broadly be teaching, children or health. It is sufficient to say that it has nothing to do with Religious Studies. Further, the job description specifies that the teacher will be one of Health Studies with contributions required into the relevant departments. In our judgment, the correct construction of the relationship between the Claimant and the Respondent was as the Tribunal found that she was engaged as a teacher of Caring and Nursery Nursing and that there was no power to require her to become a teacher of A/S Religious Studies even with consultation.
24. It must be borne in mind that the primary findings of this Tribunal was that the Claimant was unwilling to move to this position. We can see why. She had been a teacher of Religious Studies for a little over two years combining it with Maths at a primary school, but then she had, what we regard as a major career change and found her vocation, and we can well understand the force with which she expressed her view, both at the College and at the Employment Tribunal that she was engaged as her contract told her as a teacher of Caring and Nursery Nursing and did not want to move to another position.
25. The next question is whether the Respondent fundamentally breached the contract of employment by requiring the move. Against the background which we have described above, including the agreed purpose of this relationship and the Claimant's strong views, to foist the position of Religious Studies upon her was held to be a fundamental breach. It is not necessary for us to reach that conclusion ourselves, for it is simply necessary to determine whether or not there was evidence and material upon which that decision could be made: see the judgment of Lawton LJ in Pedersen v Camden London Borough Council [1981] ICR 674 at page 681 and of Waller LJ at 682E.
26. There was material for this Tribunal to found the conclusion it reached. It then went on to consider questions of fairness. We reject the contention that we cannot understand the reasons as being below the standard of Meek. The reasons of the Tribunal for condemning the Respondent for having constructively unfairly dismissed the Claimant shine through this judgment. We have no doubt that attempts were made to consult the Claimant to change, but the Tribunal made a firm finding that at a very early stage in June 2002 the Respondent's mind was made up to put on the course in Religious Studies and to have the Claimant teach it, notwithstanding that it had failed on previous occasions to be able to deliver that course.
27. We are very grateful to both of the advocates today who have made our task the easier by their clear and concise submissions. The appeal is dismissed.