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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hughes v. Archers Court School [2003] UKEAT 1444_01_1401 (14 January 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/1444_01_1401.html Cite as: [2003] UKEAT 1444_1_1401, [2003] UKEAT 1444_01_1401

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APPEARANCES

 

For the Appellant	MR A CHOUDHURY (of Counsel) Messrs Reynolds Porter Chamberlain Solicitors Chichester House 278-283 High Holborn London WC1V 7HA
For the Respondent	MR R DOWNEY (of Counsel) Kent County Council Legal Secretariat Sessions House County Hall Kent ME14 1XQ


 


HIS HONOUR JUDGE PROPHET

1. An Employment Tribunal sitting at London South on 10 and 11 September 2001 under the chairmanship of Mr Milton held that Mrs Hughes was not unfairly dismissed from her employment as a teacher, and also that her claims in respect of breach of contract also failed. The decision was promulgated with full reasons on 25 September 2001. No point has been taken as to whether Kent County Council should be a named Respondent, but we assume that they will cover any liability which may arise from this appeal.
2. There is no appeal of the decision that Mrs Hughes was not unfairly dismissed. A claim that a breach of contract arose in that she was dismissed before the expiry of her contractual sick pay entitlement was not upheld by the Employment Tribunal, and there is no appeal on that matter either.
3. However, Mrs Hughes also sought a finding that her notice of dismissal did not comply with what was required by the terms of her contract of employment, and consequently there was a breach of contract. That was rejected by the Employment Tribunal, which set out its reasons for so doing in paragraphs 27 to 30 of its judgment. The appeal before us today is in respect of that.
4. We note that the Employment Tribunal paid tribute to the representation give to Mrs Hughes by Mr Reynolds, a union representative, but it is no doubt fair to say, with no disrespect to Mr Reynolds, that the Employment Tribunal did not have the advantage of the depth of analysis which has emerged today from the submissions of Mr Choudhury of Counsel on behalf of Mrs Hughes. Mr Downey of Counsel, who appeared on behalf of the Respondent in the Employment Tribunal, has equally contributed by his submission. We are indebted to both of them.
5. A brief resume of the relevant facts is appropriate. Unhappily, Mrs Hughes' continued employment as a teacher came under threat due to illness which affected her attendance, and the Capability Procedure was put into effect. The outcome of a capability hearing on 17 January 2000 was, the Employment Tribunal found, a recommendation that her employment should be terminated. (More accurately perhaps, having regard to the statutory procedures set out below, the recommendation would be that she should cease to work at the school.) An appeal hearing was held on 3 February 2000 before a Governor's Appeal Committee which upheld the decision made at the capability hearing on 17 January. There are Minutes of that Appeal hearing, which are themselves undated. They refer to the hearing as having taken place on 3 February 1999 but that is accepted as being an error.
6. Mrs Hughes was not present at the appeal hearing. Mr Reynolds, as her representative, presented her case. A Mr Edwards, a Personnel Manager employed by the County Council attended as Personnel Advisor to the Appeals Committee. Mr Edwards wrote to Mrs Hughes on 4 February 2002 (which was a Friday) on Kent County Council notepaper as follows:

"Dear Mrs Hughes

Contract of Employment

Following the appeal hearing held on Thursday 3^rd February at Archers Court School I am writing to inform you that the School's Governing body have instructed the LEA to terminate your contract of employment.

The reason for dismissal is lack of capability on the grounds of ill health.

In accordance with your Contract you are entitled to 12 weeks' notice. Your last day of service will, therefore be 30^th April 2002.

I understand the Chairman of the panel will be writing to you separately with more details of the decision.

Yours sincerely

Gary Edwards

Area Personnel & Development Manager"

It is common ground that that letter reached Mrs Hughes on Monday 7 February 2000.

7. We begin by looking at the School Standards and Framework Act 1998 which provides statutory procedures in Schedule 16 relating to the appointment, discipline and dismissal of teachers. Paragraph 25 of Schedule 16 states:

"(1) Where the governing body determine that any person employed by the local education authority to work at the school should cease to work there, they shall notify the authority in writing of their determination and the reasons for it.

(2) … the authority shall before the end of the period of 14 days beginning with the date on which the notification under sub paragraph (1) is given, either

(a) give him such notice terminating his contract of employment with the authority as is required under that contract, or

(b) terminate that contract without notice if the circumstances are such that they are entitled to do so by reason of his conduct."

8. It is a curious feature of this case, bearing in mind the clear words in paragraph 25(1), that there was no evidence presented to the Employment Tribunal, nor indeed indicated to us as existing, of a specific notification in writing by the governing body to the local education authority of the governing body's determination, and the reasons for it. It would seem to be quite simple for the Kent County Council, and indeed all education authorities, to ensure that there is a specific written communication from the governing body to themselves of the recommendation, and the reasons for it, and thereby ensure that compliance with the statutory procedure is achieved.
9. It is obvious that non compliance with the statutory procedures could provide all sorts of headaches for local education authorities including breach of contract. That is revealed by a full reading of the Employment Appeal Tribunal judgment of Lindsay J in Howard v Governors of Brixington Infants School and Another [1999] ICR 1096. In particular that judgment indicates a view with which we would respectfully agree ie that common sense requires the written notification of the recommendation that the teacher should cease to work at the school to be given after the completion of the appeal, and has to be justified in the written reasons in the light of the results of the appeal. An earlier recommendation prior to the appeal will not suffice. It follows that the next stage required under the statutory procedure ie the giving of notice to the employee by the authority, has to take place on receipt of that written notification.
10. We are not able to accept that subsequently circulated Minutes of the appeal hearing constitute compliance with the statutory procedure of written notification by the governing body to the education authority of a recommendation and the reasons for it. Mr Justice Lindsay says in the Howard case that the relevant provisions are mandatory. The Employment Tribunal's conclusion that there was sufficient compliance with paragraph 25 by indirect means seems dubious.
11. However, there is a distinction to be drawn between some non compliance with the notification procedure in paragraph 25(1) and the obligations placed upon the authority to give notice of termination to the employee of his contract of employment in paragraph 25(2). In our case, the significance of non compliance with the notification procedure is that it is difficult to accept that the Kent County Council was in a position on 4 February 2000 to send notice of termination to Mrs Hughes. However since both sides in our case accept the fact of Mrs Hughes' dismissal, we must therefore look at whether she received, as she was entitled to receive from, the County Council, such notice as she was required to receive under her contract. If she did not, then it must follow that there was a breach of contract.
12. In the Howard case, neither the Employment Tribunal, nor the Employment Appeal Tribunal saw the Appellant's contract. That is not so in our case. Mrs Hughes' contractual terms in respect of notice are set out clearly in her offer of appointment letter from the Kent County Council dated
    30 October 1990 as follows:

"Notice to terminate the appointment may be given either by the County Council or by you. Except in the case of misconduct or other urgent cause when you may be dismissed summarily the County Council or you must give the other two calendar months' notice expiring at the end of the Spring or Autumn Terms (30^th April or 31 December respectively) or three calendar months' notice expiring at the end of the Summer Terms (31^st August ). You would in any event be entitled to receive additional statutory notice where this would exceed the contractual notice set out above. Statutory notice would be calculated on the basis of one week's notice for each year of continuous service with the County Council up to a maximum of 12 weeks' notice for 12 years or more continuous service."

13. It is common ground that Mrs Hughes was on the maximum ie 12 weeks for statutory notice purposes. Mr Choudhury and Mr Downey are in sharp conflict as to the proper legal interpretation of the above terms. They do however agree on one matter, and we in turn agree with them on that matter. They both accept that, although the only authority appears to relate to oral notices (see West v Kneels Ltd [1986] IRLR 430) a notice period under a written notice does not include the day it is received by the employee. Thus, subject to Mr Downey's further submissions as set out below, if Mrs Hughes received 12 weeks' notice on 7 February 2000, the period would begin on 8 February 2000 and therefore extend to 1 May 2000. (The year 2000 was a leap year). It would therefore be a breach of her contract for the notice to be given, as it was, as ending on 30 April 2000.
14. In the usual way however such a breach would have little practical effect, but in the case of a teacher special consideration has to be given to the contractual requirement which on the face of it requires that notices must end on one of three specific days. Mr Downey submits that the proper construction of the contractual requirement set out in paragraph 12 above is that the contractual notice ie 2 months was given, and the statutory requirement was quite separate from that and did not have to end on one of the three specific dates. Mr Choudhury, however, says that the effect of the statutory requirement is to modify the contractual terms to substitute 12 weeks for 2 months, with the requirement for a proper notice to expire on one of the three specific dates remains intact. Thus the only proper notice which Mrs Hughes could have received on 7 February 2000 was one expiring on 31 August 2000. He draws in aid section 86(3) of the Employment Rights Act 1996 to support his argument of modifying the contractual term.
15. We prefer Mr Choudhury's submission on this point. There are many examples in employment law where contractual terms have to be modified to take into account statutory requirements. Furthermore we find very persuasive the judgment of Judge Mathews in the Worcester County Court on 20 December 1993 in the case of Cubberley v Hereford and Worcester County Council, drawn to our attention by Mr Choudhury, where the finding strongly supports his submission. Common sense also suggests that weight should be given to the importance of notices relating to teachers, ending at the end of school terms. Thus if there is insufficient time to give the statutory notice period to expire on or before the end of the next specific date which constitutes the end of term, the authority has to consider how best to give a proper notice period expiring at the end of the next specific date which constitutes an end of the school term.
16. Mr Downey, however, has strongly urged us to find, as did the Employment Tribunal at paragraph 29 of its reasons, that Mrs Hughes received oral notice at the appeal hearing through her representative Mr Reynolds, or at least prior to 7 February 2000, in that Mr Reynolds must have communicated the outcome of the hearing to her. That would be knowledge to her that she would be dismissed. He seeks to support that submission by reference to McMaster v Manchester Airport plc [1998] IRLR 112 and by the statutory procedure requiring the education authority to accept the recommendation.
17. It seems to us, however, that that cannot be the correct position in Mrs Hughes' case. We read McMaster as opposing there being constructive or presumed knowledge of dismissal. Employment law has always stressed the importance of the fact of dismissal being properly communicated to the employee (see Mr Justice Slynn, as he then was, in Brown v Southall and Knight [1980] IRLR 130). It should not arise by inference, however strong that may be. Paragraph 25(1) of Schedule 16 in the School Standards and Framework Act 1998 makes it clear that Mr Edwards was in no position to give notice to Mrs Hughes, even if she had been at the hearing on
    3 February because the required written notification by the governing body to the County Council had not been given. Still less then could he have done so to Mr Reynolds who was in attendance essentially to argue her case against a recommendation at the hearing. There is nothing in the wording of the letter from the County Council to Mrs Hughes (see paragraph 6 above) to suggest that it is confirmation of an earlier notice.
18. We are satisfied, therefore, notwithstanding the inevitability of the statutory process as it would impact on Mrs Hughes following the dismissal of her appeal, that notice to Mrs Hughes of the termination of her contract of employment had to be given directly to her by the County Council, and that that occurred at the earliest on 7 February 2000. It was the responsibility of the Council to ensure that they did that in compliance with the strict statutory procedure and in accordance with the contractual notice requirement, which in turn had to take into consideration Mrs Hughes' statutory notice entitlement. That as we have found they did not do, and consequently there was a breach of contract.
19. It follows that the appeal is allowed. We accept that Mr Downey has arguments in respect of the measure of damages consequent upon the breach of contract which we cannot deal with today, and accordingly we remit the case to the same Employment Tribunal to assess damages. However, mindful of costs, it may be that the parties will feel that the particular circumstances of Mrs Hughes' case are such that they can reach a compromise on that matter without the need for a further hearing.
20. Finally, Mr Downey seeks leave to appeal to the Court of Appeal because he says that matters which affect all education authorities are raised by our judgment. However, the conclusions we have reached are essentially based on the particular circumstances of Mrs Hughes' position. All education authorities musts be aware that there are strict statutory requirements to follow where the dismissal of a teacher is involved, and that they depart from those at their peril. We have reached our conclusion on the construction of the contractual notice requirements without any degree of uncertainty which could justify our giving leave to appeal. We have therefore advised Mr Downey that if he wishes to appeal our finding that there was a breach of contract in Mrs Hughes' case, he will have to approach the Court of Appeal for permission.