Murphy v Slough Borough Council and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Lord Justice Neuberger,Lord Justice Pill |
| Judgment Date | 16 February 2005 |
| Neutral Citation | [2005] EWCA Civ 122 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2004/1239EATRF |
| Date | 16 February 2005 |
[2005] EWCA Civ 122
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Keene and
Lord Justice Neuberger
Case No: A2/2004/1239EATRF
Antony White QC and Aileen McColgan (instructed by Messrs Graham Clayton) for the Appellant
Peter Oldham (instructed by Slough Borough Council) for the Respondents
The principal issue in this appeal concerns the appropriate respondent or respondents when a claim for disability discrimination is brought by a teacher employed at a maintained community school with a delegated budget. The teacher's contract of employment is with the local education authority ("LEA"), but the Governing Body of such a school is given extensive employment powers by the legislation, and in certain respects employment by the LEA is to be treated as if it were employment by the Governing Body.
The Facts
The appellant, Mrs Shahina Murphy, began employment as a teacher at Langleywood School in the borough of Slough on 1 September 2000. She suffers from a congenital heart disorder which makes it dangerous for her to carry a pregnancy to full term. She and her husband therefore arranged for a surrogate mother in the United States of America to give birth to their child. While the birth was awaited, the appellant requested a period of paid maternity leave, so as to be able to bond with the child once it was born.
The child was born on 19 November 2001. However, the Governing Body of the school decided that the appellant should only be allowed to take unpaid leave because the school was in a precarious financial position with a deficit in its budget. During the three years before the academic year beginning in September 2001, the school had been the subject of "special measures" resulting from an inspection by OFSTED. The Head Teacher sought additional funds from the Slough Borough Council ("the first respondent"), the relevant LEA, from its contingency fund, but the application was refused. The appellant received the formal decision of the Governing Body by way of a letter dated 22 November 2001 from the Head Teacher.
Langleywood School is a maintained community school with a delegated budget under section 49 of the School Standards and Framework Act 1998 ("the 1998 Act").
The Proceedings Below
The appellant then presented a claim to an employment tribunal under the Disability Discrimination Act 1995 ("the DDA"). She accepted that she was not entitled to statutory maternity leave because the birth had taken place with a surrogate mother, but she complained of disability discrimination both under section 5(1) of the DDA (less favourable treatment) and under section 5(2) (failure to comply with section 6 duty to make reasonable adjustments). Her application cited both the Governing Body and the LEA as respondents.
It was conceded before the employment tribunal that the appellant was a disabled person within the meaning of the DDA. But the majority of the tribunal found that she had not been discriminated against under section 5(1) because she had not been treated less favourably for a reason which related to her disability. On this issue, the tribunal's decision was reversed by the Employment Appeal Tribunal ("EAT") presided over by Silber J., and there is no cross- appeal by the respondents against that part of the decision. I say no more about it.
However, the employment tribunal also found that the correct respondent was the Governing Body and only the Governing Body. On this basis it concluded unanimously that, even if there was discrimination under section 5(1), the defence of justification was made out, because the reason for the Governing Body's refusal of paid leave was both material and substantial, given the financial situation of the school. In respect of the section 5(2) claim, which alleged a failure to take reasonable steps (in the form of providing paid leave of absence) to perform the section 6 duty, the employment tribunal found by a majority that the Governing Body had not failed to comply with its duty. Unanimously it also found that, if there had been such a failure, the defence of justification applied. It will be necessary to look in due course in more detail at the employment tribunal's process of reasoning on these aspects of the case.
Its decisions on the correct respondent and on justification were upheld by the EAT. It is those decisions which are now challenged by Mrs Murphy in this appeal. It will be appreciated from the statutory references already given that this case is governed by the DDA in the form in which it stood before the amendments made by the Disability Discrimination Act 1995(Amendment) Regulations 2003 came into force. In due course it will be necessary, when dealing with the justification issue, to look at the detailed provisions of the relevant sections of the DDA. But for the purposes of the main issue, namely whether the Governing Body alone was the correct respondent, it is enough to note that the provisions of section 5(1) and section 5(2) are concerned with discrimination by "an employer". With that in mind, I turn to that issue.
The Appropriate Respondent
(i) Introduction
This is not a purely formal issue. Of course, in any consideration of a claim under section 5(1), one needs to be able to identify the employer in order to ascertain the reason for the less favourable treatment, and a claim under section 5(2) necessitates establishing by whom the section 6 duty is owed. But the real significance in the present case, and no doubt in others too, of this issue relates to the financial position of the employer. That may be relevant both to justification under section 5(3) and to whether there is a breach of any section 6 duty. On that last aspect, section 6(4)(d) expressly requires regard to be had to the "financial and other resources" of the employer. In the present case, once the employment tribunal had decided that the employer here was the Governing Body of Langleywood School, it concentrated on the financial position of the school rather than on that of the LEA. There is a passing reference in the tribunal's extended reasons to a suggestion that the LEA's budget also was in deficit but it is clear that the tribunal did not examine the financial position of the LEA to any significant degree. One cannot say with any confidence what the outcome of these proceedings would have been if the LEA were to be treated as the employer or an employer of the appellant for the purposes of these claims. Hence the importance of this issue.
(ii) The Legislative Framework
I noted at the outset that the appellant's contract of employment was with the LEA. This could not be otherwise: Schedule 10, paragraph 3(6) of the 1998 Act prohibits the governing body of a community school from entering into contracts for the employment of teachers and other staff. It is the 1998 Act which provides that each maintained school (including a community school) shall have a governing body, which shall be a body corporate: section 36(1). It also deals with the general powers of such a body (section 36(2)), its responsibility for the conduct of the school (section 38(1)) and its delegated budget (section 49(1)). Under that last provision every maintained school has a delegated budget, unless the school's right to a delegated budget has been suspended by the LEA in the circumstances set out in section 17 or in section 51 and Schedule 15. The governing body of a school with a delegated budget may spend any such amounts as they think fit for any purposes of the school, subject to any provision made by or under the LEA's financial scheme for the schools in its area: see sections 50(3) and 48(1).
The 1998 Act also deals with the staffing of community schools, distinguishing between those with a delegated budget and those without one because the right to it has been suspended. Those with a delegated budget are covered by section 54(1), which provides that Schedule 16 shall have effect in relation to staffing. That Schedule gives very extensive powers over staffing to the governing body of a school with a delegated budget, such as Langleywood School. Thus, when it comes to the appointment of teachers (other than head teachers and deputy head teachers), it is in effect the governing body which selects the person to fill the vacancy. It is the LEA which formally makes the appointment but by paragraph 15(1) of Schedule 16
"the local education authority shall appoint the person recommended or accepted for appointment by the governing body unless he does not meet any staff qualification requirement which are applicable in relation to his appointment." (emphasis added)
It is the governing body (and indeed the head teacher) which has the power to suspend a teacher where his exclusion from the school is required, and it also has the power to end such a suspension: paragraph 24(1) and (3). Likewise, the governing body has the power to decide that a teacher at the school should be dismissed. The procedure is similar to that for appointments: the governing body notifies the LEA of its decision and the reasons for it and, if the teacher in question works solely at that school, the LEA is required to terminate his contract of employment: paragraph 25(1) and (2).
Paragraph 22 of Schedule 16 deals with the powers of the governing body in respect of teachers and other staff at the school during the time those...
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