Governing Body of Clifton Middle School and Others v Askew
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE WARD,LORD JUSTICE CHADWICK |
| Judgment Date | 20 July 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0720-5 |
| Docket Number | No EATRF 1998/0841/3 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 July 1999 |
[1999] EWCA Civ J0720-5
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDERS OF THE
EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
Lord Justice Ward
Lord Justice Chadwick
No EATRF 1998/0841/3
MR T LINDEN (Instructed by Graham Clayton of London) appeared on behalf of the Appellant
MR P OLDHAM (Instructed by Richard Polson of London) appeared on behalf of the Respondent
The Applicant, Christopher Askew, is a teacher. The Third Respondents, the London Borough of Ealing ("the Council"), are the local education authority ("LEA") in Ealing and were his employers. In the early 1990s the Council operated a three-tier structure of schools, viz. First Schools for children aged between 4 and 7, Middle Schools for children aged between 8 and 12 and Secondary Schools for children aged 13 upwards. All those schools were maintained county schools within the meaning of the Acts then in force, the Education Act 1980 ("the 1980 Act") and the Education Reform Act 1988 ("the 1988 Act"). Each school had its own Governing Body, its own head teacher and its own staff of teachers. The teachers at each school were the employees of the Council but were appointed by the Council on the nomination of the Governing Body of the school. Mr. Askew was employed by the Council from January 1988 to teach solely in Clifton Middle School, the Governing Body of which ("the Old Governing Body") are the First Respondents. Mr. Askew taught French to year 7 pupils (aged 11 to 12) though he could be required under his contract to teach other year pupils in the Middle School and other subjects.
The Council in 1993, with the approval of the Secretary of State, reorganised their schools. There was to be a two-tier structure, First Schools and Middle Schools being replaced by Primary Schools, save that children in year 7 would go to Secondary Schools. The reorganisation was effected in accordance with s. 12 of the 1980 Act. This provides, so far as relevant, that where a LEA intend to cease to maintain any county school they should publish their proposals and follow a prescribed procedure, and if the proposals are approved by the Secretary of State, it is the LEA's duty to implement them. The Council duly complied with s. 12 and obtained that approval in relation to the cesser of maintenance of Clifton First School and Clifton Middle School on 31 August 1993. They were to be replaced on 1 September 1993 by a new Primary School, Clifton Primary School, the governing body of which ("the New Governing Body") are the Second Respondents. Before the new Primary School was opened, it had a temporary governing body, whose functions included interviewing teachers for the new Primary School.
S. 44(3) of the 1988 Act provides that the appointment and dismissal of staff at a county school with a delegated budget are to be subject to Sch. 3 of that Act. Both Clifton Middle School and Clifton Primary School are such schools. By para. 8 of Sch. 3 to the 1988 Act, where the governing body of a school determine that any person employed to work at the school should cease to work there, they must notify the LEA, and if that person is employed to work solely at the school and does not resign, the LEA must terminate that person's contract of employment. The Old Governing Body made a determination that Mr. Askew should cease to work at Clifton Middle School and the Council gave him notice in May 1993 that his employment with the Council was terminated with effect from 31 August 1993 on the ground of redundancy because of the closure of that school. Mr. Askew exercised a right of appeal to the Old Governing Body, but the appeal failed.
Mr. Askew applied to work at Clifton Primary School. By para. 2 of Sch. 3 to the 1988 Act it is for the governing body of a school to interview applicants for a vacant post at the school and, where they consider it appropriate to do so, to recommend to the LEA for appointment an interviewed applicant, whereupon the LEA is obliged to appoint the person so recommended unless he does not meet any staff qualification requirements. By para. 4(2) of Sch. 4 to the 1988 Act the provisions of s. 44 and Sch. 3 apply in the case of a new school for the purposes of the appointment of staff at the school, and in the case of a new school which has a temporary governing body, that body have the functions of the governing body of the school. Mr. Askew was interviewed by the temporary governing body of Clifton Primary School, but they did not recommend him for appointment.
Mr. Askew obtained another job with the Council as a teacher, but a temporary one only. He applied to an Industrial Tribunal, complaining of unfair dismissal. He sought neither reinstatement nor compensation but only a declaration that he was unfairly dismissed. He joined the Old Governing Body, the New Governing Body and the Council as respondents to that application. He contended that it was wrong to say that Clifton Middle School had closed when it continued to exist for all practical purposes within a larger unit under a new name. In the alternative he advanced an argument that he had been dismissed unfairly by reason of a transfer contrary to the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("TUPE") and the Acquired Rights Directive 77/187/EEC ("the Directive"). His application was resisted by the Respondents on a number of grounds, including that he had been fairly dismissed for redundancy and that TUPE and the Directive could not apply as there has been no transfer of an undertaking from one employer to another.
By Art. 3 of the Education (Modification of Enactments Relating to Employment) Order 1989 ("the 1989 Order"), since replaced in substantially similar terms, Part V of the Employment Protection (Consolidation) Act 1978 ("the 1978 Act"), now replaced by the Employment Rights Act 1996, which relates to unfair dismissal, in its application to governing bodies with delegated budgets is to have effect as if
"(a) any reference …. to an employer …. included a reference to the governing body acting in the exercise of their employment powers and as if that governing body has at all material times been such an employer ….;
(b) in relation to the exercise of the governing body's employment powers, employment by the [LEA] at a school …. were employment by the governing body of that school ….;
(c) references to employees were references to employees at the school …. in question;
(d) references to dismissal by an employer governing body included references to dismissal by the [LEA] following notification of a determination by a governing body under paragraph 8(1) of Schedule 3 to …. [the 1988 Act]."
The term "employment powers" was defined to include powers as to appointment and dismissal of staff conferred by s. 44 of and Sch. 3 and para. 4 of Sch. 4 to the 1988 Act.
By Article 4:
"Without prejudice to the generality of article 3, where an employee at a school …. with a governing body with a delegated budget is dismissed by the [LEA] following notification of such a determination as is mentioned in article 3(1)(d) above -
….
(b) Part V of [the 1978 Act] shall have effect in relation to the dismissal as if the governing body had dismissed him, and the reason or principal reasons for which the governing body did so had been the reason or principal reason for which they made their determination."
Art. 6 relates to applications to industrial tribunals. By Art. 6(2) the application is to be made and the proceedings are to be carried on against the governing body, though by Art. 6(3) the orders made (other than for reinstatement or reengagement) are to have effect as if made against the LEA.
The Directive is by Art. 1(1) expressed to apply to "the transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer or merger". By Art. 2(a) "transferor" is defined as meaning any natural or legal person who, by reason of a transfer within Art. 1(1), ceases to be the employer in respect of the undertaking, business or part of the business, and "transferee" is defined correspondingly. Art. 3(1) provides that the transferor's rights and obligations arising from a contract of employment or from an employment relationship shall by means of the transfer be transferred to the transferee. Art. 4(1) provides that the transfer of an undertaking, business or part of a business shall not in itself constitute grounds for dismissal by the transferor or the transferee, but that that provision shall not stand in the way of dismissals that may take place "for economic, technical or organizational reasons entailing changes in the work-force". There are other references in Art. 3(1) and Art. 4(2) to an employment relationship in the alternative to a contract of employment.
By TUPE the United Kingdom implemented the Directive. By Reg. 2(1) of TUPE: "'contract of employment' means any agreement between an employee and his employer determining the terms and conditions of his employment;
'employee' means any individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services and references to a person's employer shall be construed accordingly".
Reg. 3(1) provides that TUPE applies to "a transfer from one person to another of an undertaking". The term "undertaking" by Reg. 2(1) includes any trade or business. By Reg. 5(1) a relevant transfer is not to operate so as to terminate the contract of employment of any person...
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