United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS JOANNA HEAL (Of Counsel) Instructed by: Association of Teachers & Lecturers Legal Services Dept 7 Northumberland Street London WC2N 5RD
For the Respondent	MR RODERICK MOORE (Of Counsel) Instructed by: Messrs Cobbetts Solicitors Ship Canal House King Street Manchester M2 4WB

SUMMARY

The ET misconstrued an agreement between the parties as to the circumstances in which the Claimant might reasonably refuse to accept an alternative post.


 


HIS HONOUR JUDGE D SEROTA QC

1. This is an appeal from the Employment Tribunal at Manchester (C J Chapman Esq, Chairman). The Decision was sent to the parties on 23 December 2004. The Employment Tribunal dismissed the Claimant's claim that an unlawful deduction had been made from her wages pursuant to Section 13 of the Employment Rights Act 1996. The appeal was referred to a full hearing by his Honour Judge Clark on 4 March.

Factual Background

2. We take the following factual background from the Decision of the Employment Tribunal. The Claimant was employed by the Respondent as a teacher from 1977. In 1995 she became Head of Year and Appraisal Co-ordinator with an appropriate salary on the Scale CPS plus 4. Her post involved management responsibilities for which she received an appropriate payment.
3. In May 2000 the Claimant was informed by the Respondent that her post as Appraisal Co-ordinator would cease in September 2000 by reason of a change in performance management. The Respondent sent her a letter dated 6 June 2000 stating that as a result of the reduction in her responsibilities her position would now be CPS plus 3 but her salary would be protected at a rate of CPS plus 4. Her annual salary was at that time £31,050.00.
4. In April 2001 the CPS plus 4 scale increased to £32,196.00. The Claimant's salary remained, however, at £31,050.00. A male colleague received the increase but she did not. Her salary was increased but only in accordance with the scale CPS plus 3. The Claimant therefore commenced proceedings in the Employment Tribunal and made applications to the Employment Tribunal in relation to alleged unlawful deductions from her wages, discrimination on the ground of sex and equal pay. The Employment Tribunal in the decision sent to the parties on 28 May 2003 found that there had been unlawful deductions and discrimination on the ground of sex. It did not consider it necessary to adjudicate on the equal pay claim.
5. At approximately the same time as these proceedings in the Employment Tribunal were continuing, the Respondent embarked on a programme to reorganise the management roles at the school. This reorganisation in due course would lead to the abolition of the Claimant's post as Head of Year and when that happened there was a clear possibility that her salary would be reduced by reason of the loss of management payments.
6. Negotiations evidently took place between the parties after the decision of the Employment Tribunal on liability had been sent, with a view to reaching a compromise as to remedy. These negotiations were successful and led to an undertaking being given by the Respondent that would enable the Claimant to return to her duties as a classroom teacher, but with a protected salary. The undertaking is in the following terms, so far as are material to this appeal:

"(1) the Respondent undertakes to the Applicant that it will pay and continue to pay the Applicant her salary at the level which equates to CPS + 4 or it's equivalent from time to time until such time as she is offered by the Respondent but unreasonably refuses to accept an alternative post which carries greater responsibility than her current post as classroom teacher. For the avoidance of doubt in the event that the Applicant accepted an alternative post with lower responsibility than that at CPS + 4 management allowance, the Respondent would continue to pay the Applicant her salary at the level equating to CPS + 4 management allowance or it's equivalent provided that this is in line with the prevailing Teachers Pay and Conditions Document."

The Respondent undertook that the salary to be paid to the Claimant would 'subject to prevailing Teachers Pay and Conditions Document, be paid without any deductions arising out of cash or mark-time safeguarding'.

7. We will in due course have to refer to the Teachers Pay and Conditions Document.
8. The Claimant applied for various posts with management responsibilities but was unsuccessful.
9. On 28 January 2004 a meeting took place between the Claimant, the Respondent and her Union Representative. It was proposed by the Respondent that the Claimant should take up the role of PSA Staff Co-ordinator. She was offered this post which was remunerated on scale SMS plus 1 management allowance. This would be in addition to her teaching role. The principal responsibilities of the PSA Staff Co-ordinator were:

"To link the parents and staff of the school in School Social and Fund Raising Activities. To act as a focal point for staff room social events and staff facilities."

The principal responsibilities were defined as being under the direction of the Deputy Head Teacher:

•    To attend all PSA Meetings

•    To organise/initiate PSA events

•    To organise the Summer Fair

•    To attend all PSA events

•    To inform parents and staff of PSA events

•    To organise and administer the staff Social Fund

•    To arrange leaving presents/cards for staff as appropriate

•    To organise staff social activities

•    To ensure that Staffroom Notice Boards are up-to-date and efficiently displayed

•    To oversee Staffroom facilities eg ensuring Staffroom, Staff Kitchen and Toilets are tidy and maintained to a good standard

•    To carry out any other related duties considered relevant by the Deputy Headteacher-Community.

There are also general duties:

•    To be part of a Duty Team, under the direction of a Director of Year, carrying out supervisory duties in accordance with published rosters.

•    To participate in appropriate meetings with colleagues and parents relative to the duties described above.

•    To fulfil the duties of a SNS teacher where appropriate and act as a Form Tutor.

The Claimant refused to accept the post. The issue was discussed at two meetings and there was an exchange of correspondence. The Claimant's position was that she would accept the post if the role were changed to include what she considered to be relevant and acceptable duties.

10. The Respondent considered that the Claimant had unreasonably refused to accept the post and in accordance with the terms of the undertaking considered it was entitled to revert to paying her salary at the standard national scale plus 3 management allowances. It sought to do this from 1 July 2004. There was a gross loss to the Claimant, therefore, of some £178.35 per month (£130.00 per month approximately net).
11. The Claimant asserted that the reduction in her salary amounted to an unlawful deduction. She asserted that she acted reasonably in refusing to accept the position of PSA Staff Co-ordinator, partly by reference to a national agreement (the workload agreement). This national agreement was in effect a statutory contract for teachers. It provides that teachers should only be required to undertake duties involving teaching and learning and should not routinely undertake administrative or clerical tasks. She asserted that none of the principal responsibilities of the PSA Staff Co-ordinator involved teaching or learning and that the post was predominantly administrative or clerical. The workload agreement also provided that teachers should enjoy a reasonable work/life balance. A number of the responsibilities of the PSA Staff Co-ordinator involved significant out of hours work.

The Decision of the Employment Tribunal

12. The Employment Tribunal correctly directed itself by reference to Section 13 of the Employment Rights Act in relation to unlawful deductions. There is no criticism made of its self-direction and the Respondent conceded that the reduction in the Claimant's salary from July 2004 amounted to an unauthorised deduction unless the Respondent could demonstrate that it was authorised by a relevant provision of the Claimant's contract.
13. The Employment Tribunal determined that the PSA Staff Co-ordinator post carried greater responsibility for the Claimant than that she enjoyed as a classroom teacher, both quantitively and qualitatively. The Employment Tribunal unanimously decided that the post carried with it greater responsibility than the Claimant's position as a teacher, based on the amount of work to be undertaken and the nature of that work. In paragraph 10 the Employment Tribunal adopted the phraseology of Ms Heal and clearly meant to say that the post carried greater responsibility than her position as a classroom teacher because the word 'greater' implied 'of a higher degree of magnitude, more elevated in rank, status or importance.' The Employment Tribunal then turned to the question of whether the Claimant had unreasonably refused the PSA Staff Co-ordinator post. It accepted that the question could not be answered simply by looking at the offer from the perspective of either the Respondent or the Claimant alone. The Claimant had submitted to the Employment Tribunal, as she had before us, that her refusal was reasonable because she considered that she had reasonable ground for refusal.
14. The Employment Tribunal then said this at paragraph 12:

"The Tribunal took the view also that the question of a reasonable or unreasonable refusal could no more be judged by the perception of the claimant than the perception of the employer. In other words a refusal of an offer did not become unreasonable solely because the employer considered it a reasonable offer. Equally, the refusal of the claimant could not be reasonable solely because the claimant herself considered that she had reasonable grounds for her refusal. The reasons the claimant advanced had to be reasonable in the sense that they could be objectively justified by relation to some cogent argument as opposed to being a blank refusal or an hysterical refusal but the Tribunal considered it had to objectively judge the reasonableness of those grounds."

15. The Employment Tribunal found that the Respondent was genuine and not disingenuous in making the offer, but equally bearing in mind its funding obligations, was seeking to match the Claimant with the position that matched the management increments she continued to enjoy notwithstanding the fact that she was no longer Head of Year.
16. The Employment Tribunal considered that the Claimant had considered and properly articulated objections to acceptance of the post. However the Employment Tribunal did not consider these were reasonable from an objective standpoint:

"13. However, in the view of the Tribunal they were not reasonable grounds for the claimant's refusal. Whilst she could justifiably point to the fact that the duties appeared to be not only inconsistent with the duties and responsibilities of a teacher but inconsistent with the spirit of the workload agreement, she had to have her objections considered in context. This was not a situation where the claimant was being asked to take on a new role where she had not had any previous management responsibility, nor was it a case where the claimant was being asked to take on additional duties to that of a classroom teacher without payment. The agreements referred to by the parties clearly only related to the duties and responsibilities of classroom teachers. They were not documents designed to exclusively define the role of a teacher such as the claimant who was employed as a classroom teacher but who enjoyed payment for management responsibilities that no longer existed."

The Tribunal unanimously concluded the Claimant did not have reasonable grounds for refusing the offer. It reached that conclusion by different routes. The two lay members considered that the Claimant was receiving a management payment when she was not undertaking a management role and there were limits as to the time of the undertaking. She was thus unreasonable in rejecting a post which would attract an additional management payment of one increment point whereas she continued to receive an increment of 3 points for a management role she no longer fulfilled.

"The respondents were entitled to remedy that position by making the claimant an offer of a position that carried a responsibility that might more closely match the salary position."

17. The Chairman took the view that there were 'cogent and argued reasons' for the Claimant's rejection of the position offered and in the context of the workload agreement and the terms and conditions of employment it was not unreasonable for a classroom teacher to either refuse the position or not apply for it in the first place if considered to be a clerical administrative role or one that impinged on the work-life balance. However, it had to be looked at in context. She was not a classroom teacher but had become a classroom teacher because her job had been redefined. The Respondent would have been entitled to reduce her salary by three management points but for the terms of the undertaking. The Respondent only proposed to remove one incremental point rather than three and the job being offered was a management role as perceived by the Respondent and 'was a genuine attempt on the part of the Respondent to find the Claimant a position that gave her a management role in the context of the removal of some of her duties due to the reorganisation.' Further, the undertaking was time limited and event limited and therefore could be terminated:

"… In the absence of any suggestion of bad faith on the part of the respondents therefore what the respondents were seeking to do was find a position for the claimant commensurate with her contractual position, which was that she was receiving four management increments although not fulfilling management responsibilities. In the opinion of the Chairman therefore whilst the claimant reasonably believed that she could reject the offer for reasons that were personal to her and there were cogent arguments in support of her position, nevertheless there were not reasonable grounds for her position in the context of the historical position that existed as far as the claimant was concerned after September 2003 when in effect she was demoted but with pay protection."

18. In the event, therefore, the Employment Tribunal concluded that the offer of the post of PSA Staff Co-ordinator by the Respondent satisfied the terms of the undertaking and the Respondent was entitled to make the reduction because the Claimant's refusal to accept the post was unreasonable.

Grounds of Appeal and Arguments in Support

19. The first two grounds of appeal were amended after the EAT had drawn attention to authorities under Section 141(2) of the Employment Rights Act 1996 dealing with the situation in which an employee is not entitled to a redundancy payment if when faced with redundancy, he unreasonably refuses an offer of alternative employment. Ms Heal submitted that the Employment Tribunal should have considered whether the Claimant, taking into account her personal circumstances, was being reasonable in refusing the offer, that is whether she had sound and justifiable reasons for turning down the offer.
20. The primary way in which Ms Heal, chose to advance her submissions was that the Employment Tribunal should have applied "the reasonable range of responses test" and asked itself whether the Claimant's refusal of the post of PSA Staff Co-ordinator was within the range of reasonable responses. This failure had led the Employment Tribunal, submitted Ms Heal, to have substituted its own views for those of the Claimant. She relied upon the decision of the Court of Appeal in In re A Solicitor [1945] KB 368. In that case the Solicitors Practice Rules 1936 Rule 4(c) required a solicitor to make 'reasonable enquiry' before accepting instructions in respect of claims arising as a result of death or personal injury from any organisation whose business it was to support or present such claims. Scott LJ who gave the judgment of the Court had said the word 'reasonable' has in law the prima facie meaning of reasonable in regard to those existing circumstances of which the actor, called on to act reasonably, knows or ought to know.
21. She also referred us to the well-known authorities of British Leyland UK Limited v Swift [1981] IRLR 91 and Iceland Frozen Foods v Jones [1983] ICR 17. These latter two cases involved a consideration of what is now Section 98 of the Employment Rights Act 1996. The Courts have consistently held in relation to the question of unfair dismissal that the correct test is not whether in the Employment Tribunal's opinion employers acted reasonably in deciding, for example, to dismiss, but whether the employer's decision fell within the band of reasonable responses to the employee's conduct which a reasonable employer might adopt. This approach is now applied to cover the procedural as well as substantive issues , arising in cases of unfair dismissal..
22. Ms Heal also submitted the Employment Tribunal was wrong to take into account that other teachers had accepted the role offered to the Claimant. She submitted that one teacher might reasonably accept what another might reasonably refuse. Ms Heal submitted the Employment Tribunal was wrong to take account of the fact that the Respondent considered the offer to have been reasonable. What was relevant was whether the Claimant considered it to be reasonable. It should have asked whether the Claimant reasonably believe the role to be a management role. The objective bystander would focus on the teacher's position. The objective bystander would recognise (a) the teacher would lose pay for management responsibilities if she unreasonably refused an alternative post which pointed to the fact that it was for the teacher to make the decision (b) the teacher would make the decision based upon his or her personal circumstances and the needs of the school (c) another teacher might come to a different conclusion on equally rational grounds. In this case the Claimant had rational grounds for refusing the offer (d) a teacher trying to make up her mind whether to accept the post could not second guess what an Employment Tribunal might do. Thus if the Employment Tribunal could substitute its view for that of the Claimant as to what was reasonable, it would be much more difficult for the Claimant to make up her own mind.
23. Ms Heal submitted that the Employment Tribunal should consider whether the Claimant's refusal was unreasonable, as defined by the Court of Appeal in the well-known case of Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1KB 223 in which Lord Greene MR in an off quoted dictum had this to say:

"It is true the discretion was to exercise reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so as to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably". Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority."

24. During the course of the "sift" His Honour Judge Clark suggested that a more appropriate context for considering the meaning of "reasonableness" might have been the approach of the Courts to the unreasonable refusal of alternative employment, under Section 141(2) of the Employment Rights Act, rather than the context of unfair dismissal. Ms Heal, somewhat reluctantly it must be said, submitted as an alternative to her primary argument that the Employment Tribunal should have approached the case not on the basis of whether a reasonable employee would have accepted the offer, but whether the Claimant taking into account her personal circumstances was being reasonable in refusing the offer. Did she have a sound and justifiable reason for turning down the offer?
25. She drew our attention to the notes in Harvey on industrial relations – paragraphs 1685-1730 and to the passage at paragraph 1685:

"The test similar to that applied in cases of unfair dismissal in judging whether an employee has failed in his duty to mitigate his loss be unreasonably refusing of an offer of further employment eg (Wilding v British Telecommunications Plc [2002] IRLR 524, CA)."

26. Ms Heal's next grounds of appeal as she candidly accepted amount to a perversity point. She submitted that it was perverse of the Employment Tribunal to conclude that the teachers' pay and conditions document, to which we have referred, was of limited use only because it defined the role of the classroom teacher whereas she was being offered a role in addition to that of the classroom teacher. The thrust of her submissions was that it was perverse of the Employment Tribunal to conclude that the post of PSA Staff Co-ordinator amounted to a management role. Ms Heal took us to the School Teachers Pay and Conditions Document 2003, which as we have said is a form of statutory contract. Paragraph 62 identified duties that were "deemed to be included in the professional duties which a teacher (other than the head teacher) may be required to perform." She drew attention in particular to the provisions of paragraphs 62.11 and 62.12:

"62.11 Management

62.11.1 contributing to the selection for appointment and professional development of other teachers and non-teaching staff, including the induction and assessment of new teachers and teachers serving induction periods pursuant to the Induction Regulations;

62.11.2 assisting the head teacher or an assessor in carrying out threshold assessments of other teachers for whom he has management responsibility;

62.11.3 co-ordinating or managing the work of other staff; and

62.11.4 taking such part as may be required of him in the review development and management of activities relating to the curriculum, organisation and pastoral functions of the school;

62.12 Administration:

62.12.1 participating in administrative and organisational tasks relating such duties as are described above, including the direction of supervision of persons providing support for the teachers in the school; and

62.12.2 attending assemblies, registering the attendance of pupils and supervising pupils, whether these duties are to be performed before during or after school sessions.

62.12.3 Paragraph 62.12.1. does not require a teacher routinely to undertake tasks of a clerical or administrative nature which do not call for the exercise of a teacher's professional skills and judgment.

62.12.4 Without prejudice to the generality of paragraph 62.12.3 Annex contains a list of tasks falling within the scope of that paragraph."

She submitted that most of the job description of PSA Staff Co-ordinator which we have already set out, is out-with the terms of paragraph 62.11 and 62.12. Even, if one takes a generous view of the reference to "pastoral functions" these would not include such matters as responsibility for the notice board. Ms Heal submitted that the Employment Tribunal was bound to have regard to this contractual document in determining what it was that was reasonable for the Claimant to agree and what it was reasonable for her to refuse to do.

27. She also submitted that the decision of the Employment Tribunal Decision at paragraph 10 was perverse. It was found that the new post gave her greater responsibility. There was no explanation. In her submission "greater responsibility" must mean the undertaking of more responsible tasks. It was wrong to find simply because there were additional responsibilities that these could be regarded as "greater".
28. Ms Heal submitted that the majority judgment was flawed because the majority had failed to consider the nature of the task to be undertaken by the PSA Staff Co-ordinator and had failed to consider whether the Claimant's refusal to accept those tasks was reasonable. One member was wrong in ignoring the contractual question of whether or not the Respondent was entitled to make a reorganisation. Ms Heal also criticised the minority decision of the Chairman because he had taken irrelevant matters into account, including the fact that the pay and conditions document was "unhelpful", that the Respondent's perception of whether the post was reasonable was relevant, and whether the Respondent was entitled in any event to remove all management points.

The Respondent's case

29. We start with Mr Moore's submissions on the construction issue. He very properly reminded us that we are concerned with construction of an agreement, not of a statute. He submitted that the meaning of the undertaking had to be determined objectively by reference to the intentions of the parties. It was dangerous to borrow meanings for the word "unreasonably" from legislation. He also submitted that if the "reasonable range of responses"construction were to be placed on the phrase "unreasonably refuses to accept an alternative post" the Claimant would be placed in a disproportionately strong position as against the Respondent. It would give the Claimant a virtual veto over any post offered.
30. He submitted that the construction that Ms Heal sought to place on the phrase was a specialist and technical construction that did not reflect the plain and ordinary meaning of the words.
31. In essence he submitted the Employment Tribunal was correct and the parties intended the ordinary meaning of the words "to be given effect and that required consideration of both parties' point of view.
32. He submitted that the background to the undertaking was that the Claimant was being paid for management work which she was not doing.
33. Mr Moore was unable to cite any authority to assist us except the case of Clark v Nomura International [2000] IRLR 766 in which at paragraph 40 Burton J was considering a discretionary bonus scheme. Submissions were made to him as to the circumstances in which the discretion should be exercised. Burton J did not consider it right that there be simply a contractual obligation on an employer to act reasonably in the exercise of his discretion "which would suggest that the Court can simply substitute its own view for that of the employer". We do not find this of any assistance to us in the present case.
34. Mr Moore then submitted that the redundancy model was also inappropriate. The whole purpose, he submitted, of the redundancy payment was to compensate or relieve an employee for the consequences of his not being able to earn his living in his former employment: see Lord Woolf in Mairs (Inspector of Taxes) v Haughey [1993] IRLR 551 (HL). In the present case Mr Moore submitted there was a significant difference from the case of redundancy because all the Claimant was likely to lose was some £2,000.00 a year as opposed to her entire job.
35. He submitted that were he to lose the case on the construction point the appeal should be allowed but remitted to the same Employment Tribunal subject to the usual order relating to listing practicability.
36. In relation to the ground of appeal based on perversity he drew our attention to Yeboah v Crofton [2002] IRLR 634 (CA). Mummery LJ in a well-known passage has stated that an appeal on the grounds of perversity ought only to succeed where "an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper application of the evidence on the law, would have reached." He stressed that this was an extremely high threshold which the Claimant did not even approach.
37. In relation to the submissions that the Tribunal should have considered whether a "management role" was offered he pointed out that the Employment Tribunal was concerned with construction of the undertaking whereby she was to be offered "an alternative post which carries greater responsibility that her current post as classroom teacher." The Employment Tribunal concluded that there was greater responsibility and it was impossible to say that that conclusion was wrong.
38. In considering whether there had been an "unreasonable refusal" the Employment Tribunal was entitled to take into account the fact that the role of PSA Staff Co-ordinator had previously been held by a teacher who had been promoted, that the Respondent had received a number of application for the position when the Claimant declined to accept it and the fact that the Respondent considered the post to involve fulfilling a management role. The Employment Tribunal was entitled to bear in mind that had Claimant accepted the position she would have continued to be paid at CPS plus 4.
39. He submitted that the phrase "pastoral functions" should not have a limited meaning – see Condition of Employment paragraph 62:11:4. The Employment Tribunal was entitled to conclude that a number of the responsibilities of the PSA Staff Co-ordinator involved pastoral activities.
40. He also submitted that it was a post for which a teacher's professional skills were needed. One needed to look at the job description as a whole. The fact, for example, that the PSA Staff Co-ordinator was responsible for ensuring that staffroom facilities were tidy and maintained to a good standard did not mean she was responsible herself for undertaking the necessary work. The responsibility would be to ensure that those who were responsible directly for the cleanliness, did that work. He submitted that was manifestly a management function.

Conclusions

41. We deal firstly with the construction issue.
42. It is essential to bear in mind that we are concerned with construction of a document and not of a statute and it is of importance to ascertain the intention of the parties. We of course bear in mind guidance given by Lord Hoffmann in Investors Compensations v The West Bromwich Building Society [1998] 1WLR 896.
43. We do not consider that application of the "range of reasonable responses" test leads to an acceptable construction. This is a test which has been applied to statutory provisions dealing with unfair dismissal and does not assist us in determining the intention of the parties so far as the undertaking given by the Respondent was concerned.
44. We also do not consider it is helpful to have regard to the concept of "Wednesbury" unreasonableness. The Wednesbury test is not applied even in those cases concerning the reasonable range of responses in unfair dismissal cases. No authority has been cited to us for its importation into construction of contracts. We see no basis for importing the principle which relates to control of administrative actions, into questions of contractual construction.
45. We look at the background to the undertaking. It is important, in our opinion, to have regard to the Schoolteachers' Pay and Conditions Document 2003. This, as we have said, amounts to a statutory form of contract for schoolteachers. It is helpful to have regard to paragraph 43:1:1 which:

"43.1.1. where as a result of:

(a) the … reorganisation of an educational establishment ….

a teacher (including a teacher in further or higher education) loses his post or would (but for this paragraph) suffer a diminution in his remuneration, and is thereupon employed full-time as a teacher in the provision of primary or secondary education (whether or not at a school) in a post where his remuneration is paid by the same authority as before, he shall be deemed for all salary purposes to continue to hold the post he held, and to be entitled to those allowances listed in paragraph 43.2 to which he was entitled immediately before the closure, reorganisation or direction."

It is also necessary to have regard to paragraph 43.7:

"43.7 Paragraph 43.1 shall not apply or, as the case may be, shall cease to apply, to a teacher:

(a) who at any time is offered but unreasonably refuses to accept an alternative post in an educational establishment maintained by the authority by whom his salary is paid;

(b) if the remuneration payable to him by virtue of the other paragraphs of this Document equals or exceeds the remuneration payable under paragraph 43."

46. It is clear that paragraph 43.7 is a provision that is intended to apply in cases of redundancy, although it may also apply in cases which are similar to redundancy such as the partial loss of responsibilities. It is accepted that clause 43.7 is the origin of the undertaking of 4 September 2003. We note that we have not been shown anything to suggest that "mark-time" safeguarding applies to a salary that has been preserved under paragraph 43.1.1. We understand "mark-time" to refer to a process whereby a ring fenced salary is reduced over a period of time. We have been told that there was some dispute as to whether "mark-time" did in fact apply and this is a matter dealt with in the compromise.
47. It is also necessary to have regard to the fact that the Claimant was being paid in respect of management responsibilities she was not undertaking. However, and it seems to us that this is a crucial point, she had a contractual right to be paid at the "old" rate until he was offered an alternative post which she unreasonably refused to accept. It follows, therefore, that the provision of an alternative post was of more pressing concern to the Respondent than the Claimant.
48. In our opinion, there is some justification for looking at the undertaking of 4 September 2003 on the basis that it had its genesis in a contract dealing with what might loosely be described as redundancy situation. It is clear to us that clause 43.7 of the Schoolteachers Pay and Conditions Document would be construed in accordance with the passage from Harvey we have already referred to.
49. We recognise that the construction of an agreement designed to deal with redundancy may be influenced by the fact that redundancy payments are designed to compensate or relieve employees from not being able to earn a living in their former employment. However, it seems to us it would be difficult to envisage the provisions of Clause 43 we have referred to, as being construed differently in the case of a redundancy situation where an entire job is lost and a situation in which there has been a partial loss, as is the present case. We ask ourselves forensically what justification there might be for giving one construction to Clause 43.7 in the case of an employee who has lost his or her job, and a different construction in the case of an employee who has lost salary by reason of the loss only of certain of his responsibilities by reason of a reorganisation. Clause 43.7 is clearly intended to deal with redundancy situations.
50. The agreement embodied in the undertaking was to compensate and protect the Claimant from the loss of part of her job and salary in circumstances where she had a contractual entitlement by virtue of Clause 43.7 to retain her existing salary until, inter alia, she unreasonably refused to accept an alternative post.
51. We also consider it important to bear in mind that the adverb "unreasonably" relates to the Claimant's refusal of a position. It focuses on the Claimant's behaviour and on what she does. The undertaking could have been phrased differently. The Respondent's case would have been much stronger, had the undertaking provided that protected salary would cease if the Claimant refused to accept an alternative post "reasonably offered to her by the Respondent" or which the Respondent "reasonably considered to carry greater responsibility" or if she was offered a "reasonable alternative post".
52. The Claimant has conceded that it would not be right to completely exclude considerations as to the Respondent's position from the equation, however, those considerations should properly be considered from the Claimant's perspective. Having regard to these considerations, in our opinion the undertaking should be construed on the basis of whether the Claimant was reasonable, taking into account her personal circumstances in refusing the offer. Did the Claimant objectively have sound and justifiable reasons for rejecting the offer?
53. For those reasons we consider that the approach of the Employment Tribunal was incorrect and it is necessary for this matter to be remitted for a rehearing. Having regard to the fundamental nature of the misapprehension and the disagreement between members of the Employment Tribunal and having regard to the guidance offered by Burton J in Sinclair Roche and Temperley v Heard [2004] IRLR 763, we consider the matter should be remitted for rehearing before a differently constituted Employment Tribunal.
54. We now turn to deal with the perversity appeal. It is unnecessary now for us to decide this matter. We have, however, heard full argument and so give brief reasons as to why we do not accept Ms Heal's submissions. In short the extremely high threshold set out in Yeboah v Crofton has not been crossed by the Claimant. (We note that Ms Heal also sought to persuade us that insufficient reasons had been given and she sought to pray in aid Meek v City of Birmingham District Council [1987] IRLR 250. We do not consider that this case comes close to being one in which inadequate reasons were given.)
55. We are not satisfied the Employment Tribunal was wrong either in its conclusion that the post of PSA Staff Co-ordinator carried greater responsibility than that of the classroom teacher or in its extended or wide definition of the term "pastoral" nor can we accept that the Employment Tribunal took irrelevant matters into account in reaching its conclusion; we agree with the Respondent's submissions in that regard.
56. We accordingly allow the appeal and remit the matter for hearing before a differently constituted Employment Tribunal in accordance with our Decision.