Malloch v Aberdeen Corporation

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Reid,Lord Morris of Borth-y-Gest,Lord Guest,Lord Wilberforce,Lord Simon of Glaisdale
Judgment Date29 Jun 1971
Judgment citation (vLex)[1971] UKHL J0629-1
Docket NumberNo. 6.

[1971] UKHL J0629-1

House of Lords

Lord Reid

Lord Morris of Borth-y-Gest

Lord Guest

Lord Wilberforce

Lord Simon of Glaisdale

Malloch
and
The Corporation of the City of Aberdeen

Upon Report from the Appellate Committee, to whom was referred the Cause Malloch against Corporation of City of Aberdeen, that the Committee had heard the Appellant in person and Counsel for the Respondents, as well on Tuesday the 20th as on Wednesday the 21st, days of April last, upon the Petition and Appeal of John Strachan Malloch, residing at 71 Cromwell Road, Aberdeen, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland of the Second Division of the 24th of July 1970, so far as regards the words: " Refuse said Motion for Review, Affirm said Interlocutor of the Lord Ordinary dated 23 rd January 1970 and decern:", might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of the Corporation of the City of Aberdeen, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutor of the 24th day of July 1970, in part complained of in the said Appeal, be, and the same is hereby, Recalled: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, with a Direction to reduce the resolution for dismissal so far as it affects the Appellant and the consequent letter of dismissal: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Expenses incurred by him in respect of the Action in the Court of Session and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.

Lord Reid

My Lords,

1

The Respondents are the Education Authority for the City of Aberdeen. The Appellant was employed by them as a teacher until 24th April, 1969. On 18th March the Education Committee to which the necessary powers had been delegated passed a Resolution to dismiss the Appellant and some 37 other teachers "on the grounds that they are unregistered and that their continued employment is no longer lawful by virtue of the Schools (Scotland) Code, 1956, as amended". By a letter of 19th March the Appellant was given one month's notice of dismissal which was to take effect on 24th April. Two months later the Appellant raised the present action against the Respondents concluding for reduction of this Resolution and notice of dismissal. The action was dismissed by the Lord Ordinary and on 24th July, 1970, the Second Division adhered to the interlocutor of the Lord Ordinary. The Appellant now appeals to this House.

2

The ground on which reduction is sought is that, contrary to natural justice, the Committee refused to receive written representations or to afford to the Appellant a hearing before they passed this Resolution. This refusal is admitted by the Respondents. In his letter which was not submitted to the Committee he had asked for an opportunity of making a statement and had said that he proposed to submit legal argument.

3

There is a long history behind these events. For a very long time before 1965 the recognised qualification for appointment to a teaching post by an Education Authority was that the teacher should be a certificated teacher. In 1965 the Teachers Council (Scotland) Act was passed. A Council was set up and section 6 provided that it should be the duty of the Council to establish a register of persons who were entitled to be registered and who applied to be registered. Subsection (2) provided "Any person shall be entitled to be registered if—( a) he is a certificated teacher; or" if he complies with any of three other provisions. Subsection (4) entitled the Council to make rules regarding inter alia payment of fees in relation to registration and removal from the register of the names of persons failing to pay the prescribed fees. We were not referred to anything in this Act, and I have found nothing to indicate any intention that registration should be made compulsory or should be made a condition for the continued employment of certificated teachers.

4

Nevertheless, in 1967 there were made by the Secretary of State The Teachers (Education, Training and Registration) (Scotland) Regulations, S.I. No. 1162 which are said to require that every Education Authority must dismiss from employment as a teacher all certificated teachers who do not register. It appears that a number of certificated teachers objected to applying for registration; one of them was the Appellant. We are not concerned with his reasons or with the actions of any other teacher. But the Appellant persisted in his objection and that led to his dismissal. He now maintains that that interpretation is wrong and that these Regulations did not require the Respondents to dismiss him. The Appellant conducted his own case and did so with ability and moderation. He sought to argue that if and in so far as the Regulations do have that meaning they are ultra vires. But that is not open to him on his pleadings.

5

The case for the Respondents is threefold. First, they say that because the Appellant held his post at pleasure he was not entitled to be heard before he was dismissed. Secondly, they say that, even if in general a teacher has a right to be heard before an Education Authority dismisses him, to have afforded him a hearing in this case would have been a useless formality because whatever he might say they were legally bound to dismiss him. And, thirdly, they say that even if he was entitled to a hearing he is not entitled to have their decision to dismiss him reduced or annulled. I must consider each of these three contentions in turn.

6

The first depends on a submission that the status of teachers in Scotland is simply that of an ordinary servant. At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant's only remedy is damages for breach of contract.

7

In my opinion, that is not the present status of teachers employed by Scottish Education Authorities. There is no doubt that prior to 1872 parish schoolmasters appointed by the heritors held office ad vitam aut culpem. But the Education (Scotland) Act of that year enacted by section 55 that teachers should in future be appointed by the new school boards "and every appointment shall be during the pleasure of the School Board". The result was that their status was reduced to that of an ordinary servant. That appears clearly from the opinions in Morrison v. Abernethy School Board (1876) 3R. 945.

8

But soon Parliament began to have second thoughts. In the Public Schools (Scotland) Teachers Act, 1882 certificated teachers are said to "hold office" under School Boards and their dismissal without "due deliberation" is forbidden. In particular it is enacted that no dismissal shall be valid unless three weeks' notice of a meeting to consider a motion for dismissal is given both to every member of the Board and to the teacher. I can see no possible reason for requiring notice to the teacher other than to give him an opportunity to prepare his defence, and it appears to me to be implicit in this requirement that the teacher shall be entitled to submit his defence to the Board. Moreover, a School Board refusing to hear the teacher whom it proposed to dismiss could hardly be said to proceed with due deliberation. It was said that this three weeks' notice may have been intended to give the teacher extra time to find new employment. I cannot accept that because until the motion for dismissal is put to the vote he does not know whether it will be carried—that required an absolute majority—and it would be premature for him to look for other employment: indeed if the Board knew he was already looking for other employment that might affect the voting.

9

Then it was said that there was no obligation to give notice of any reason why it was proposed to dismiss him, so how could he prepare his defence. That appears to me quite unrealistic. It is extremely unlikely that such a motion could be put to a body of elected members representing a small area without the teacher getting to know its cause. A private employer may act in secret but a responsible elected public body can hardly do so.

10

Then it was said that it is inconsistent that a body should be entitled to act at pleasure but nevertheless bound to hear the teacher before acting. I can see no inconsistency. Acting at pleasure means that there is no obligation to formulate reasons. Formal reasons might lead to legal difficulties. But it seems to me perfectly sensible for Parliament to say to a public body, you need not give formal reasons but you must hear the man before you...

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