Julie Davies v London Borough of Haringey
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 17 October 2014 |
| Neutral Citation | [2014] EWHC 3393 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ14X03512 |
| Date | 17 October 2014 |
[2014] EWHC 3393 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
Case No: HQ14X03512
Karon Monaghan QC and Adam Ohringer (instructed by NUT Solicitors) for the Claimant
Peter Oldham QC (instructed by Haringey Council) for the Defendant
Hearing dates: 2 and 3 October 2014
Introduction
On 1 June 1992 Mrs Julie Davies, the Claimant, commenced employment with the London Borough of Haringey, the Defendant, as a full-time qualified assistant teacher at Northumberland Park Community School ("the School"). The School is a community school maintained by the Defendant local authority.
In 1997 the Claimant was elected as the Deputy Divisional Secretary of the National Union of Teachers (the "NUT") for Haringey. She was released from her teaching duties for three days each week to enable her to carry out trade union activities. For the remaining two days she continued in her role as teacher at the school.
From April 2000 the Claimant was released full time from her teaching duties for the purposes of carrying out her trade union activities. She has successfully stood for re-election in this post (or that of Divisional Secretary) every year since 2000 and the arrangement whereby she is released full time from her teaching duties has continued.
By letter dated 17 July 2014 the Defendant suspended the Claimant from her post in accordance with the Defendant's Disciplinary Procedure which was attached. The suspension has the effect of preventing the Claimant from working as Divisional Secretary of the Union and representing its members in the Defendant Borough. The grounds for suspension allege breaches of the Defendant's Code of Conduct and Social Media Policy. The complaints made against her did not relate to her teaching.
The Claimant claims that the Defendant has no power to suspend her or take any other disciplinary action against her.
The issue in this case is whether the Defendant has the right to subject the Claimant to disciplinary action or whether only the School has the right to do so.
The parties are agreed that there are only two potentially applicable disciplinary procedures (one being the School's, the other being the Defendant's); there is no third procedure; one of the two procedures applies to the Claimant.
Further it is common ground that this court is not concerned with the merits of the decision to suspend the Claimant.
The factual background
The Claimant's letter of appointment states that:
"You are appointed as a full-time qualified assistant teacher in the employ of the Borough for service on the staff [of] Northumberland Park Community School or such other school maintained by the Borough in which you may be called upon to serve…
Your appointment will date from 1 June 1992 and will be subject to the Borough's Conditions of Employment for qualified teachers, Part B."
The Statement of Particulars, served pursuant to the Employment Protection (Consolidation) Act 1978, provides that those particulars apply to "Qualified Teachers and Head Teachers employed in Primary and Secondary Schools and in establishments set up under Section 56 of the Education Act".
The Statement of Particulars further provides:
"1. You are employed in the service of this Authority and your employment is to the post of full-time section 11, project ED3 Curriculum Support Teacher…
11. The disciplinary rules applicable to you are laid down in the Council's Scheme of Conditions of Service, in the agreed Codified Conditions of Service for Teachers in Primary and Secondary Schools, in the Rules of Management or Articles of Government relating to the school in which you are employed and in the regulations of the Secretary of State for Education and Science…"
On 11 April 2000 Ms Oveta McInnis, Deputy Head Teacher at the School, wrote to Ms Ann Becker, Acting Director of Education of the Defendant:
" Ms. Julie Davies
Ms Davies has been working three days a week facility time with the head teacher's agreement.
Ms Davies has requested an increase to five days a week facility time in order to work for the NUT full time for one year starting at the beginning of the summer term.
The headteacher is in agreement with this. Could you please write to confirm that you have received the request and are in agreement, so that we can make necessary staffing arrangements as soon as possible."
The Defendant communicated its agreement, and the arrangement whereby the Claimant is released full time from her teaching duties has continued since 2000.
On 20 July 2009 the Claimant wrote to Ms Monica Duncan, the Head Teacher of the School, as follows:
"I am considering returning to my substantive position at NPCS. I would be grateful if you could consider the nature of my position and duties and let me have your thoughts as soon as possible."
Ms Duncan replied on 27 August 2009:
"The LA has confirmed that as NPCS is not expected to set aside a permanent post for the possible eventuality of you ceasing to be a full-time NUT officer, should you wish to return to the school, the LA will continue to pay your salary for two terms upon your return to NPCS or until a suitable and comparable post is found at NPCS or through redeployment to another school or Council establishment, whichever is the sooner.
…
Please do not hesitate to contact me, should you require any further clarification with regards to the contents of this letter."
Ms Duncan states (WS1 at para 9) that she had no further communication from the Claimant and she did not seek to pursue a position at the School.
On 10 May 2013 Mr Steve Davies, the Defendant's Head of Human Resources, wrote to the Claimant "to clarify [her] current contractual status". The letter continued:
"You have been seconded to full-time trade union duties as an NUT branch officer since 1 April 2000. As a result of this substantial period of time through custom and practice your contractual status has been varied so that your substantive post is that of an unattached teacher and therefore you are deemed to be centrally employed by the Council in the Children and Young People's Directorate."
The Claimant replied the following day:
"How does this work? Surely the logical step would be to retain my full-time teaching position from which I am seconded to carry out trade union duties, with reimbursement to the school for days spent on those duties. This is how 0.8 facility time generally works.
…
I am at a loss to understand how it is that these matters were not subject to consultation or discussion before this point. However, I assume you have given these questions some consideration or you would not have written the letters. I am struggling here to see any of this as the actions of a reasonable employer. Can you get back to me quickly please?"
Mr Davies did not reply. He left the Council a short time afterwards. On 2 August 2013 the Claimant wrote to Ms Nicola Mathieson, the Defendant's Head of HR Advice and Employee Relations, saying that her substantive post remains that of teacher at the School, and objecting to the content of the two letters written to her by Mr Davies on 10 May 2013.
On 17 July 2014 the Defendant suspended the Claimant from her post in accordance with its own disciplinary procedures applicable to Council employees. Paragraph 2.1 of the Defendant's Procedure states:
"This procedure applies to all permanent Council employees, except those teachers directly employed by the Council and all staff appointed by schools operating under the Local Management of Schools, which have their own procedure."
The reasons for her suspension were not related to her work at the School.
The Claimant has not worked at the School since 2000. When she was working at the School she stated that her role was that of Curriculum Support Teacher ("CST"), tracking the progress of Ethnic Minority Pupils. She was employed teaching children whose first language was not English (Language Support Teacher) and she held a responsibility post in that area (Incentive "A" Allowance). That post has not existed since 2005 when Mr Andrew Kilpatrick, who was then Head Teacher, conducted a complete review of all responsibility posts at the School and established a new structure of posts.
In a letter dated 11 May 2009 Ms Carmelina Tona, the Defendant's Head of Schools Personnel, informed the Claimant, in response to her question as to whether her post had been deleted:
"I am advised that the main duties of the CST post were part of the EMA department in the new structure and that this was part of school-wide restructure of teaching and support posts.
I am also advised that this post is now described as an EMA teacher and that one post is currently filled on a part-time basis with the remaining hours being vacant. All other posts are filled on a full-time basis."
On 28 August 2009 Mrs Davies wrote to Mr Bailey, the Deputy Director of the Defendant's Children and Young People's Service:
"I'm not sure what an 'EMA Teacher' does. This is my next battle. They will have to provide a JD [job description] and identify a suitable course for me to refresh my skills. The only one I can find is a one-year course at the Institute. Surely it would be easier for me to sever ties with the place and be centrally employed like the UNISON people are."
Ms Duncan, who has been the Head Teacher at the School since 1 January 2009, conducted a further review of all responsibility posts in 2012–13. Once again all existing posts were abolished and staff with responsibility posts were given an opportunity to apply for posts in the new structure. The Claimant made no such...
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