Governing Body of Abergwynfi Infants School and another v Jones
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Pitchford,Lord Justice Carnwath |
| Judgment Date | 08 February 2011 |
| Neutral Citation | [2011] EWCA Civ 92 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 February 2011 |
| Docket Number | Case No: A2/2010/1181/EATRF |
[2011] EWCA Civ 92
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE PETER CLARK
UKEAT/0083/10
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Carnwath
Lord Justice Elias
and
Lord Justice Pitchford
Case No: A2/2010/1181/EATRF
Mr Patrick Green (instructed by the Direct Public Access Scheme) for the Appellant
Mr Jonathan Walters (instructed by Legal and Democratic Services, Neath Port Talbot County Borough Council) for the Respondent
Hearing dates: 26 November 2010
The appellant, formerly a deputy head teacher at the Abergwynfi Infants School, wanted the right to bring proceedings against the respondent local education authority (the LEA) for a claim of unfair dismissal before the Employment Tribunal.
Initially, the LEA contended that it could not in law be liable and that the party to be sued was, for the purposes of this claim, the governing body of the school. That governing body ceased to exist when the school was closed down and the LEA now concedes that it is potentially liable as successor to the liabilities of the governing body and has properly been named as the respondent in the action.
The appellant wishes to establish that on the facts of this case the LEA is not, or not only, indirectly liable by virtue of having taken over the liabilities of the governing body for any wrongdoing of that body, but is also potentially directly liable in its own right for its own wrongful actions.
The legislation.
Before considering the way in which the issue has come before the court, I will set out the relevant legislative material. In a nutshell, the purpose of this legislation is to ensure that where the governing body of a school has a delegated budget, it can exercise certain employment functions affecting the staff at the school, including the teaching staff. The local education authority then has to give effect to those decisions.
Section 35(2) of the Education Act provides:
"Any teacher … who is appointed to work under a contract of employment at a school to which this section applies is to be employed by the local education authority."
It is common ground that the section does apply to the Infants School which is a maintained school falling within section 35(1)(d). Schedule 1 to the Act confers wide powers on a governing body but paragraph 7(3) expressly denies the school power to enter into contracts of employment.
However, notwithstanding this inability, for certain purposes the employer is deemed to be the governing body of the particular school where the teacher works. This is achieved by provisions in the Education (Modification of Enactments Relating to Employment) (Wales) Order 2006 ("the 2006 Order.").
Article 3(1) is, so far as is material, as follows;
"In their application to a Governing body having the right to a delegated budget, the enactments set out in the Schedule have effect as if –
(a) any reference to an employer (however expressed) included a reference to the Governing body acting in the exercise of its employment powers and as if that Governing body had at all material times been such an employer;
(b) in relation to the exercise of the Governing body's employment powers, employment by the authority at a school were employment by the Governing body of the school,
(c) references to employees were references to employees at the school in question;
(d) references to dismissal by an employer included references to dismissal by the authority following notification of a determination by a Governing body under reg. 17(1) of the 2006 Regs."
The enactments set out include the unfair dismissal provisions of the Employment Rights Act 1996 and the Sex Discrimination Act 1975.
Article 3 therefore treats the governing body as the employer wherever it is acting in the exercise of its employment powers. These are defined by Article 2(2) as follows:
"In this Order references to employment powers are references to the powers of appointment, suspension, conduct and discipline, capability and dismissal of staff conferred by the 2006 Regulations."
Article 4 then deals specifically with dismissals:
"Without prejudice to the generality of article 3, where an employee employed at a school having a delegated budget is dismissed by the LEA following notification of such a determination as is mentioned in article 3(1)(d) –
…
(b) Part X of the 1996 Act [unfair dismissal] has effect in relation to the dismissal as if the Governing body had dismissed [the teacher] and the reason or principal reason for which the Governing body did so had been the reason or principal reason for which it made its determination."
Accordingly, whilst the LEA formally dismisses, it does so at the instigation of the governing body which is deemed to be the employer, and the reason why the governing body has instigated the dismissal is treated as the reason for dismissal.
Article 6 deals with procedural issues before Employment Tribunals. It carries through the logic of the earlier provisions and provides that the governing body and not the LEA should be the respondent to any employment tribunal claims wherever it is deemed to be the employer:
"(1) Without prejudice to articles 3 and 4, and despite any provision in the Employment Tribunals Act 1996 and any regulations made under section 1(1) of that Act, this article applies in respect of any application to an employment tribunal, and any proceedings pursuant to such an application, in relation to which by virtue of article 3 or 4 a governing body is to be treated as if it were an employer (however expressed).
(2) The application must be made, and the proceedingsmust be carried on, against that governing body.
(3) Despite paragraph (2), any decision, declaration, order, recommendation or award made in the course of such proceedings except in so far as it requires reinstatement or re-engagement has effect as if made against the authority
(4) Where any application is made against a governing body under paragraph (2)—
(a) the governing body must notify the authority within 14 days of receiving notification; and
(b) the authority, on written application to the employment tribunal, is entitled to be made an additional party to the proceedings and to take part in the proceedings accordingly."
As Article 6(4) makes clear, even where the governing body is the proper respondent, the LEA is entitled to take part in the proceedings. Furthermore, whether it takes part or not, any remedy, save for reinstatement and reengagement, takes effect as if made against the LEA.
The Staffing of Maintained Schools (Wales) Regulations 2006 are also material. These apply, inter alia, to the infant school. Regulation 17, entitled 'Dismissal of staff', provides:
"(1) … where the governing body determines that any person employed or engaged by the LEA to work at the school should cease to work there, it must notify the authority in writing of its determination and the reasons for it.
(2) If the [teacher] is employed or engaged by the LEA to work solely at the school … the LEA must, before the end of the period of 14 days beginning with the date on which the notification under para (1) is given …
(a) give … her such notice terminating … her contract with the LEA as is required under that contract.
(b) terminate that contract without notice if the circumstances as such which is entitled to do so by reason of his or her conduct.
(3) If the person concerned is not employed or engaged by the authority to work solely at the school, the authority must require him or her to cease work at the school with immediate effect."
Certain paragraphs then provide for a dismissal and appeal procedures. Paragraph 17 provides (save for certain exceptional cases set out in paragraph 18 which are not applicable here) that:
"The local education authority must not dismiss a person employed by it to work solely at the school except as provided by paragraphs (1) and (2)."
Accordingly, the LEA must dismiss a teacher employed to work solely at a school if the governing body makes a determination to that effect and notifies it that the teacher employed to work at the school should cease to work there; and conversely, it has no power to dismiss without any such determination being made.
The facts.
These can be shortly stated. As I have said, the appellant was employed as deputy head teacher of the Abergwynfi Infants School. It was a small school with three classes and the claimant was a classroom teacher, as well as being deputy head. There was a separate junior school with similar staffing levels. In 2005 it was proposed to build a new primary school to replace both infant and junior schools. The effect was that staff would cease to be employed at either of the two schools, although staff would be available for obtaining posts in the new school. Following consultations the proposal was adopted and the new school was to open with the commencement of the summer term in April 2009.
Teaching staff, other than head teachers and their deputies, automatically transferred to the new school, but in the case of head and deputy head teachers, the relevant staffing regulations require that the position must be publicly advertised and that both internal and external candidates should be considered.
The claimant was not successful in obtaining the post of deputy head. In a letter dated 19 January 2009 she had been notified by the LEA that if she was unsuccessful in her application for the post then she would be dismissed by reason of redundancy on 19 April 2009 when the school ceased to exist. Following a meeting with the unions there was a further letter dated 23 March 2009 which confirmed that the claimant...
To continue reading
Request your trial
-
Gwynedd Council v Shelley Barratt and Ioan Hughes
...At paragraph 23 of his decision EJ Tobin, after referring to the decision of this court in Abergwynfi Infants School Governors v Jones [2011] EWCA Civ 92 said:- “This case confirms Mr Edwards' contention that the respondent is capable of being directly liable for the claimants' dismissal i......
-
Gwynedd Council v Shelley Barratt and Other
...does not render dismissal by the local education authority a nullity: see Governing Body of Abergwynfi Infants School v Jones [2011] ICR 1415 at [27] (referring to Pinnington). The Respondent accepted before the Tribunal that “irrespective of the lawfulness of the dismissal, if the … notice......
-
Sharron Woods v The Governing Body of St. Chad’s R C Primary School and Lancashire County Council: 2401452/2017
...in support of his contentions. He cites Greenwood v Cornwall and anor UKEAT 0530/13/0606 and Jones v Neath Port Talbot County Council [2011] EWCA Civ 92 as authority for the proposition that there are circumstances where a claim can be maintained against a local education authority and a go......
-
Mrs E Greenwood v 1) Cornwall Council 2) The Interim Executive Board
...a local authority could never be made a party to a teacher’s unfair dismissal claim and Jones v Neath Port Talbot County Borough Council [2011] ICR 1415 makes clear that there are circumstances where a claim can be maintained against a local education authority and a governing body, so that......