Jones v Lee
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL,THE MASTER OF THE ROLLS |
| Judgment Date | 31 October 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J1031-1 |
| Docket Number | 1979 J. No. 4147 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 October 1979 |
[1979] EWCA Civ J1031-1
The Master of The Rolls
(Lord Denning)
Lord Justice Roskill and
Lord Justice Cumming-Bruce
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Queen's Bench Division
(Mr. Justice Mars-Jones)
MR. A. GRANT (instructed by Messrs. Royds Barfield) appeared on behalf of the Plaintiff (Appellant).
MR. R.J. HARVEY, Q.C. and MR. A.E.C. THOMPSON (instructed by Messrs. Ellis Wood, Bickersteth & Hazel, London agents for Messrs. Stone, King & Wardle, Solicitors, Bath) appeared on behalf of the Defendants (Respondents).
Does a man's private life matter? Does it make him unfit to be a head teacher? Should he be dismissed for it? Those were the questions which the school managers had to answer.
It happened at a small school at Churchdown in Gloucestershire. It was at St. Mary's Roman Catholic Primary School. But it might equally well have arisen at a Church of England School. There were only 134 children, all between five and eleven. There was the head teacher and five assistant teachers. Harold Jones was the head teacher. He had previously taught at a school in Germany for Air Force children. In 1975 he applied for this post, and was granted it on the usual conditions of tenure. He was a married man. A year later Margaret Brook came as assistant teacher. She was a married woman. This led to a crisis in their lives. She left and moved to another school. He stayed on as head teacher. Each got a divorce from their previous marriage. On the 21st December, 1978 they got married in a Registry Office. They remained, however, firm in their religious faith and claimed to be regular communicants.
No doubt everyone knew about it. The managers held a meeting about it on Friday, 16th March, 1979. They decided unanimously to suspend Mr. Jones forthwith from his duties as headmaster. That meant that he had to stay at home doing nothing, but he did get his pay. Not only did they suspend him. There was a serious question as to whether they should dismiss him altogether. They decided to tell the Roman Catholic Bishop about it and to ask him to appoint a tribunal. The Bishop did so. He appointed a tribunal of three laymen. The managers put a case before them. It was headed "Statement of the Managers'Case". The tribunal held a hearing at which counsel appeared on both sides - both for the headmaster and against him. The tribunal made a report on the 2Cth June, 1379 in which they said:
"… we, the reenters of the Tribunal, were of the unanimous opinion that Mr. Jones should "be dismissed from his post.
"We were mindful of the fact that professionally Mr. Jones appeared to have been an efficient and industrious Head, and we certainly had no wish to condemn him for events in his private life. However, we feel that the position of Head Teacher of a Roman Catholic School cakes a person a leader in the Religious Community and it is unthinkable that' such a person could be permitted to retain that position while blatantly refusing to conform to the teachings of the Roman Catholic Faith".
That report was made, as I have said, on the 20th June. On the 9th July the managers met to consider the report of the Bishop's tribunal. They had Mr. Jones before them. They resolved that he be dismissed from the head-teachership of the school. He was then and there summarily dismissed without any notice. He got no more pay. It was reported to the local education authority, the Gloucestershire County Council. The people there - I suppose the staff - took the view that the decision of the managers was final. They immediately stopped paying the head teacher any more salary. They felt that his dismissal was no concern of the county council. It was only the concern of the managers.
Mr. Jones challenges that decision. He says it was invalid in point of law. He says that the managers were not entitled to dismiss him except with the consent of the county council: and that before any decision was taken to dismiss him he was entitled to a hearing by the appropriate committee of the county council.
Mr. Jones does not challenge the suspension. He does not ask to go back into the school pending the decision of the county council. But he does challenge his dismissal. That is the point which has been argued before us.
THE PROBLEM
This problem does arise from time to time in schools. Men and women being what they are, attachments are formed, divorces take place, followed by re-marriages. Some say that this should not affect their careers. It should not be punished by dismissal. Others say that it is such a scandal that it cannot be tolerated. As between these views, the law says nothing. The courts say nothing. It is for the school authorities. And these vary from school to school. The authorities for county schools are different from those for voluntary aided schools. we have in this case a voluntary aided school.
THE BISHOP'S TRIBUNAL
I would say in passing that I think the managers made a mistake when they submitted the case to the Bishop's diocesan tribunal. They sought the recommendations of that tribunal almost as though it would give an authoritative relief. That was an erroneous approach to their duties. Under the statute it was their decision. They had to decide whether he should be dismissed or not. They should not surrender the responsibility for that decision to any other body.
I turn to the important matter in this case. It is whether under the contract by which Mr. Jones was employed he was entitled (1) to a hearing by the county council and (2) was not to be dismissed unless the county council consented. His appointment was in writing. It was sent by the Gloucestershire County Council on the 2Sth July, 1975. It was addressed to him.He was then in Germany. The managers were the contracting party, but they left everything to the county council. The letter says: "Dear Nr. Jones,
"I have received notification from the Managers of the above-named School that they recommend your appointment as Head Teacher (Group 4).
"The Education Committee will consent to your appointment, subject to your satisfying the Authority's medical requirements…
"The appointment will date from 1st January, 1978 …" - and this is the important sentence - "You will be employed in accordance with the Conditions of Tenure for Teaching Staff in Primary, Secondary, Special and Nursery Schools, a copy of which is attached".
Attached to that letter were conditions of tenure in a standard form such as were circulated throughout the area of the Gloucestershire County Council for teachers in Primary, Secondary, Special and Nursery schools. It applied to all fulltime permanent appointments, including that of head teachers. Also to full-time temporary appointments. The conditions of tenure state: "All appointments are subject to… the Rules of Management… of the School". I will return to those Rules later. I will go straight to the Conditions of Tenure which were incorporated and in particular to page 29 of the documents (Condition C), which is a whole page of conditions relating to dismissal. Condition 1 provides:
"It is recognised that it should be a condition of tenure of every Teacher that before any decision relating to dismissal is taken, the Teacher should have the right to be heard and to be represented before the local education authority in whose service he/she is employed or whose consent is required tohis/her dismissal".
Condition 2 provides:
"In order that due effect cay be given to these principles, in respect of all types of schools maintained by the Authority, the following procedure has been approved: (a) Before any decision is taken to dismiss a Teacher, or, in the case of an aided-voluntary school" - that is our case - "before any decision is taken to give consent to the dismissal of a Teacher, the Authority" - that is, the local education authority - "will at his/her request grant the Teacher a hearing, and at his/her option allow him/her to be represented by a friend". Then there is the procedure about seven days' notice of the time, date and place of the hearing, and so forth.
So there is that whole page (page 29) setting out the conditions relating to dismissal. It is clear that anyone reading it would believe - and certainly Mr. Jones would believe - it applied to him. He would believe that, before he could be dismissed, he would be entitled to a hearing before the Gloucestershire County Council, and that their consent would have to be given. Any ordinary head teacher - or anyone reading those conditions of tenure - would, I am quite sure, take the view that they applied to him and would act on that belief. We have heard all sorts of legal niceties to escape that result, but I would brush them all aside. This document should be interpreted in the sense it would convey to the ordinary reader of it. So read, Mr. Jones is right.
THE RULES OF MANAGEMENT
The contract purported to incorporate "rules of management". It is clear that there should be rules of management: because under section 17(3)(a) of the Education Act 1944 there ought tobe rules of management laid down by the local education authority for this school. But the striking fact is that ever since 1944 there have been no rules of management laid down by this local education authority at all. They have given an explanation for this omission. One of the senior education officers of the Gloucestershire County Council says in his affidavit:
"The rules of management for aided primary...
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