Drage v Governors of Greenford High School
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE OTTON,LORD JUSTICE MUMMERY |
| Judgment Date | 16 March 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0316-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: EATRF 99/0006 A1 |
| Date | 16 March 2000 |
[2000] EWCA Civ J0316-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon Brown
Lord Justice Otton and
Lord Justice Mummery
Case No: EATRF 99/0006 A1
Mr A. Fraser-Urquhart (instructed by Messrs Harkavys, 13 Harley Street, London W1N 1DA, solicitors) for the Appellant
Mr N. Randall (instructed by Messrs Brown Cooper of 7 Southampton Place, London WC1A 2DR, Solicitors) for the Respondents
Introduction
This appeal raises the perennial problem of identifying the effective date of termination of employment when an employee fails in an internal appeal against a decision that he be summarily dismissed. Is the effective date of termination that of the initial decision or is it the date when the internal appeal is dismissed? Every recorded case hitherto, we are told, has favoured the date of the initial decision. Is that the case here too? The issue can be important in several contexts. It can decide whether the employee satisfies the jurisdictional requirement of continuous employment for the qualifying period ending with the effective date of termination �see, for example, J. Sainsbury Ltd v Savage [1981] ICR 1. It can decide whether an ex-employee is entitled to allege discrimination in the conduct of an internal appeal against dismissal �see Adekeye v The Post Office [1997] IRLR 105. Or, as here, it can decide whether a complaint to the Industrial Tribunal has been made in time.
S.111(2) of the Employment Rights Act 1996 provides that:
"� an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal �
(a) before the end of the period of three months beginning with the effective date of termination � "
S.97(1) of the same Act provides that:
"`The effective date of termination' �
(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect. �"
The appellant presented his Originating Application to the Industrial Tribunal on 11 June 1996, complaining that he had been unfairly dismissed and giving his dates of employment as 6 April 1978 to 13 March 1996 (the latter date being, of course, within the three month limitation period). The respondents' notice of appearance answered "Yes" to the question: "Are the dates of employment given by the applicant correct?" Four days were set aside for the hearing of the complaint to commence on 2 October 1997. In the event, some half an hour before the hearing began, the respondents notified the appellant that they proposed to argue that the effective date of termination of his employment had been, not 13 March 1996 when he was notified of the failure of his appeal against summary dismissal, but 17 February 1996 when he had been told of the initial decision to dismiss him. Mr Randall (counsel for the respondents at all three stages of this litigation) had thought of the point at 6 a.m. on the first morning of the hearing. It was then (as Otton LJ felicitously put it) that he woke up to it. As it went to the Industrial Tribunal's jurisdiction, it was dealt with as a preliminary point �following only a short adjournment �and was decided in the respondents' favour.
On 3 August 1998 the Employment Appeal Tribunal (Judge Levy QC and a single other member) upheld the Industrial Tribunal's decision and dismissed the appellant's appeal. The appellant now appeals to this Court with the permission of Stuart-Smith and Mummery LJJ granted on 17 December 1998.
The Facts
The appellant is a teacher. He was employed at Greenford High School, a grant-maintained school in Middlesex. His employer was the governing body of the school, the respondents to this appeal. He joined originally as Head of Boys Physical Education on 6 April 1978. At the time of his dismissal he had been employed at the school with an unblemished character for almost eighteen years and was part of the Senior Management Team. I shall come in the next section of this judgment to the relevant terms of the appellant's contract of employment and the various provisions to be found there and in the school's Articles of Government dealing with summary dismissal.
On 23 January 1996 the head teacher (Ms Griffin) put to the appellant a number of allegations of inappropriate behaviour towards six girls at the school (including kissing and hugging), amounting to allegations of gross misconduct, in the light of which she formally suspended the appellant on full pay. On 25 January 1996 she wrote to him:
"This letter formally confirms that suspension from your duties pending your attendance at a disciplinary hearing in front of a panel of governors. You should be aware that, unless further relevant information becomes available, the governors may decide that you be dismissed on the grounds of gross misconduct."
On 30 January 1996 the head teacher wrote again, outlining the specific disciplinary charges and requesting the appellant's attendance at a disciplinary hearing before the staff committee of governors on 13 and 14 February.
On 17 February 1996, following that disciplinary hearing, the chairman of the respondent governors who had himself chaired the staff committee, wrote to the appellant:
"Dear Mr Drage,
Decision of the Staff Committee
Enclosed is the statement of the staff committee of the governing body recording its decision following the disciplinary hearing to consider allegations made against you."
The relevant part of the enclosed statement read:
"Decision of the Staff Committee in the disciplinary case against Mr Roy Drage �17 February 1996
Following two long sessions hearing evidence and a further long period of deliberation the staffing committee has reached the unanimous decision that Mr Drage be dismissed from his employment at the school.
�
The staffing committee, by a majority decision, is of the view that the sum total of its findings is that Mr Drage is guilty of gross misconduct and should therefore be dismissed summarily from his post.
Mr Drage has the right of appeal against this decision to the appeals panel of the governing body. If he should wish to exercise that right he should write to the clerk to the governors at the school within fourteen days of the date of this statement."
Mr Drage immediately gave notice through solicitors that he was appealing "against the findings of the staffing committee � and the penalty imposed by their decision of 17 February 1996".
The appeal panel sat on 6, 8, 11 and 12 March 1996. They rejected Mr Drage's appeal. On 13 March, the clerk to the governing body wrote in these terms:
"Dear Mr Drage,
Decision of appeal panel, Greenford High School
Enclosed is the statement of the appeal panel of the governing body of Greenford High School, recording their decision following your appeal against the decision of the staffing committee of 17 February 1996."
The relevant parts of the enclosed statement stated:
" Decision of the appeals panel in the appeal of Mr Roy Drage against the decision of the staffing committee �12 March 1996
On a majority decision the appeals panel believes the decision of the staffing committee should stand.
�
The appeals panel after careful investigation and consideration of all the information placed before it has therefore formed the belief that Mr Drage's conduct was such that he should be dismissed from the school with immediate effect."
The clerk to the governing body on the same day also wrote a second letter to Mr Drage stating that:
"Following the decision of the appeal panel of the governing body to dismiss your appeal against the decision of the staffing committee to dismiss you from your post, I now confirm that your employment with the school will terminate on 13 March 1996.
I will make arrangements for salary to that date to be paid to you."
I have already described the course taken by the proceedings thereafter brought by the appellant in the Industrial Tribunal. I should add only this: in the respondents' Grounds of Resistance particularising a contention that they "acted in good faith and reasonably at all times", they said:
"(iii) In all the circumstances the respondent acted reasonably in the manner in which it investigated the complaint made against the applicant in conducting two lengthy hearings and thereafter imposing the sanction of summary dismissal". [Emphasis added]
The Contractual Position
i. The Contract
The contract of employment under which the appellant was employed at the time of his dismissal (which had superseded earlier agreements) was one dated 3 August 1994. By clause 5(f)(iii) it was provided that:
"The procedure for dismissal or suspension of a Teacher shall be in accordance with the disciplinary rules and procedures established by the governing body for all members of staff in accordance with the provisions of the Articles of Government. �"
ii. The Code of Disciplinary Procedure for Teachers (schedule 2 to the Contract)
The following paragraphs are material:
"1. The procedure where consideration is being given to the dismissal of a teacher is laid down in the Articles of Government. �
4(iv) Staff Committee hearings
� in all cases of gross misconduct, the matter shall be referred to the statutory staff committee �
The committee shall have power, if they find the complaint to be...
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