Gunton v Richmond-upon-Thames London Borough Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE BUCKLEY,LORD JUSTICE SHAW,LORD JUSTICE BRIGHTMAN
Judgment Date03 Jul 1980
Judgment citation (vLex)[1980] EWCA Civ J0703-4
Docket Number1976 G No. 562

[1980] EWCA Civ J0703-4

In The Supreme Court of Judicature

Court of Appeal

(Civil Division)

On Appeal from the High Court of Justice

Chancery Division

Group B

(His Honour Judge Rubin Q. C., Sitting as a Deputy High Court Judge of the Chancery Division)

Before:

Lord Justice Buckley

Lord Justice Shaw

and

Lord Justice Brightman

1976 G No. 562
Between:
Norman George Gunton
Plaintiff (Respondent)
and
The Mayor Aldermen and Burgesses of the London Borough of Richmond-Upon-Thames
Defendants (Appellants)

MR. JAMES MITCHELL and MR. EDWARD BAILEY (instructed by Messrs, Sharpe, Pritchard & Co., Solicitors, London WC2B 6TZ, agents for Mr. A. W. B.. Goode, Town Clerk & Chief Executive of the Defendant Council) appeared on behalf of the Defendants (Appellants).

MR. JAMES GOUDIE (instructed by Messrs. Bartlett & Gluckstein Crawley & de Reya, Solicitors, London W1V OAT) appeared on behalf of the Plaintiff (Respondent).

LORD JUSTICE BUCKLEY
1

I have asked Lord Justice Shaw to deliver the first judgment on this appeal.

LORD JUSTICE SHAW
2

This is an appeal by the defendants in the action (whom I shall call "the Borough") against a judgment of His Honour Judge Rubin Q. C., sitting as a Deputy High Court Judge of the Chancery Division, which he gave on 26th October 1978. By that judgment he granted declaratory relief to the plaintiff (whom I shall call "Mr. Gunton") in relation to his contract of servicec with the Borough. By his cross-notice Mr. Gunton asks this C ourt to enlarge the scope of the declaratory order made by the learned judge.

3

The history of the matter goes back for some years. The Borough, through its Education Department, was responsible at material times for the administration of the Twickenham College of Technology, to which I shall refer as "the College". In 1968they were seeking a registrar for that institution. Mr. Gunton applied for the position and was successful. On 3rd May, 1968the Town Clerk for the Borough wrote to Mr. Gunton in these terms: "Bear Sir, I confirm your appointment as a Registrar in the Education Department, initially at Twickenham College of Techno logy with effect from 1st July 1968. Tour annual commencing salary will be" - and that is set out, with the addition of London Weighting.

4

"Your appointment will be terminable by one month's notice in writing on either side and will be subject to the National Scheme of Conditions of Service for Local Authorities A. P. T.. and Clerical Services which will govern your period of probationary service and any entitlements during holidays and sickness, and to any regulations which may be made by this Council and inforce from time to time… It is a condition of employment that you may "be subject to transfer to any other establishment within the Borough should the need arise".

5

Mr. Gun ton responded promptly. On 4th May 1968 he wrote to the Town Clerk thanking him for confirming the appointment, and thereafter duly commenced in the employment of the Borough at the College in the capacity of Registrar. As appears from the Town Clerk's letter the contract of service thus brought about was to be subject to the National Conditions of Service for Local Authorities and to any regulations made from time to time by the Council, of the Borough, who were the nominal employers. There was explicit provision for the termination of the appointment by one month's notice on either side. It is common ground that there was incorporated a disciplinary code entitled "Regulations as to Staff Discipline", which prescribed the procedure to be followed in regard to the suspension and dismissal of officers for breaches of discipline. That procedure involved a series of stages including, in cases of suspension or dismissal a hearing by an appeals committee of which the employee concerned must be given not less than a week's notice in writing. It is manifest that the course of the steps or stages to be taken will generally be prolonged beyond a month from the time when they are initiated. How is this code as to dismissal for breaches of discipline to be reconciled with the express provision for the termination of Mr. Gunton's contract of service by one month's notice on either side? A possible solution is that the code extends or varies that express provision where the Borough purports to dismiss on disciplinary grounds, but that in any other circumstances the contract of service may be determined by reference to the express provision.This, however, would produce a grotesque result, for it would mean that the Borough could, without assigning any reason, terminate Mr. Gunton's employment by a month's notice, but could not, if it complained of misconduct on his part, determine that employment save by what might prove a long protracted process. As this apparent contractual anomaly lies at the root of the matters to be resolved in examining the judgment which is appealed, I think it as well to indicate at the outset the view which I have formed as to the interaction of the stated contractual term of notice, and the procedure in relation to dismissal for breaches of discipline which it is accepted forms part of Mr. Gunton's contract of employment. For myself, I do not consider that the regulations as to staff discipline were designed to deprive the Borough of its contractual power to determine the contract of service by one month's notice; nor in my view did they have that result. If, however, the Borough £ exercised that right and was called upon before an industrial tribunal to justify a dismissal on some disciplinary ground as being fair, it might be very difficult for the Borough to establish that the dismissal was not unfair if the code had not been followed Mr. Gunton would then be accorded appropriate redress by the industrial tribunal pursuant to the statutory provisions in that regard, On the other hand, if the code had been fully observed, the onus on the Borough to demonstrate that the dismissal was fair would be relatively easy to discharge.

6

With this digression I return to the history. Mr. Gunton duly took up his appointment as Registrar. At some stage he was required by "articles of government relating to the College to act also as Clerk to the Governors". This could hardly haveadded greatly to the burdens of his office. It did not in my view constitute a distinct and separate employment, and was no more than an extended definition of his function as Registrar.

7

Unhappily as time went on, Mr. Gunton's conduct in the discharge of his duties did not commend itself to his superiors in the Department of Education of the Borough. By November 1975" the Director of Education felt constrained to recommend the Registrar's dismissal "on the ground of his conduct being wholly inconsistent with the terms of his contract". On the 6th of that month the Town Clerk wrote to Mr. Gunton, saying: "As you will be aware, the appointment of Registrar is subject to such conditions of service as the Council may determine and, in this connection, the Council's 'Regulations as to staff discipline including dismissal and suspension of officers and workmen' apply. Accordingly, I enclose a copy of these Regulations and draw your attention to Regulation 13 as the result of the operation of which Regulation 7 and those following, as appropriate, are brought into effect.

8

"Further, in accordance with Regulation 7, I hereby convey to you the decision to recommend your dismissal from the Council's service and give you notice of your right to appeal against this decision. If you wish so to appeal please give me notice thereof within the period specified in Regulation 7".

9

In taking this action, the introductory steps prescribed by the regulations as to staff discipline had been short-circuited. It may be that they were considered to be inappropriate in the case of a senior executive like the Registrar, although he clearly came within their scope.

10

However, the reaction of Mr. Gunton was not to refute the validity or effectiveness of the dismissal foreshadowed by therecommendation referred to in the Town Clerk's letter. Instead the wrote on the same day saying "In reply to your letter dated 6th November 1975 I give notice of appeal in accordance with Section 7 of the Regulations referred to". An appeal committee was duly convened and it conducted a hearing of an appeal by Mr. Gunton. He was represented and the matter was argued, not on any technical point of compliance with the regulations but on the general merit. In adopting this course I would myself have been prepared to hold that Mr. Gunton had waived and forgone any objection to the validity of his prospective dismissal founded on a failure to follow the code precisely. The process of appeal was the ultimate step in determining the propriety of the dismissal. It was a step which he sought and in which he participated.

11

The appeal was opened on 9th December 1975, when Mr. Gunton attended and had the advantage of being represented by a district officer of NALGO. After being heard in part the appeal was £ adjourned to 12th January 1976, when Mr. Gunton again attended and was represented this time by counsel who appeared on his behalf in this appeal. The appeal committee's decision was adverse to Mr. Gunton. Accordingly the Town Clerk, in his capacity as Chief Executive of the Borough, wrote on the following day giving Mr. Gunton notice that his contract was terminated on 14-th February 1976. The concluding sentence of the letter read: "As from the receipt of this letter you will not be required for the performance of any of your duties to attend at your place of work".

12

In the face of this plain intimation that he would not be permitted to perform his erstwhile functions, Mr. Gunton understandably and sensibly kept away from the College. He regarded himself as dismissed de facto; but not, as thereafter becameapparent, de here. On 11th February 1976 he issued a writ, by which...

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