R (Verner) v Derby City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindsay |
| Judgment Date | 14 November 2003 |
| Neutral Citation | [2003] EWHC 2708 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Nos: CO/455/2003 CO/2559/2003 CO/1820/2003 |
| Date | 14 November 2003 |
[2003] EWHC 2708 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Lindsay
Case Nos: CO/455/2003 CO/2559/2003 CO/1820/2003
Mr J. Cavanagh Q.C. and Mr N. Randall (instructed by Reynolds Porter Chamberlain) for the Claimants
Mr J. Goudie Q.C. and Mr P. Oldham (instructed by Derby City Council, Norfolk County Council and North Tyneside Council) for the Defendants
I have before me three cases seeking Judicial Review which are raised as “test cases” in an attempt to obviate individual decisions in the body of disputes – already over a hundred and a number that will grow with time – of a similar kind to the three. The question raised is whether, when a teacher has applied for and accepted ill-health retirement benefit, usually a lump sum and a pension, on the ground of permanent incapacity, there exists a public law duty on his employer to dismiss the employee. The feature which is at first surprising is that it is the employees who are insisting that the employers are thus bound to dismiss them. The reason for that unusual twist lies in the form, to which I will refer, of “the Burgundy Book”, the teachers’ standard-form Conditions of Employment. I will also have to look at the pension provisions and at statutory regulations relating to teachers’ employment. There are also three decided cases in the area which will require close study. The facts, though, give rise to no dispute; the three teachers (“the Teachers”) whose cases are before me were each (and, as they urge, still are) employed under the terms of the Burgundy Book; each was subject to the regulations to which I will refer and each applied for and has accepted ill-health retirement benefit on the ground of permanent incapacity (“IHRB”).
The Teachers appear by Mr John Cavanagh Q.C. leading Mr Nicholas Randall. The employers, a different Local Education Authority or employer in each of the three cases, all appear by Mr James Goudie Q.C. leading Mr Peter Oldham.
I shall turn first to the pension provisions.
The Pension Provisions
All the Teachers have become entitled to receive, have received and are continuing to receive IHRB under the provisions of the Teachers’ Pensions Regulations 1997 as amended (“the Pension Regulations”). I will need to deal later with what is said and done when IHRB is sought but first I need to refer to the Regulations themselves.
The Pension Regulations regulate a contributory scheme for teachers. A glossary is contained in Schedule 1. A teacher is taken to be “incapacitated”, so far as material, “while he is unfit by reason of illness or injury and despite appropriate medical treatment to serve as such and is likely permanently to be so”. Part B of the Regulations provides, with respect to teachers of the type with which I am dealing (erstwhile full-time teachers and at schools of the appropriate kinds), that they are to be in “pensionable employment” whilst in employment —(B 1 (1)) —but that is then cut down by B 4 (1) (b) which, so far as relevant, denies the title “pensionable employment” to a teacher whose sick pay entitlement has expired. Under the contractual provisions which I shall come on to, a teacher's pensionable employment, in the case of teachers of 4 or more years employment such as are the cases before me, would therefore usually expire not later than the 200 th working day of his or her unbroken absence on the grounds of illness. All the Teachers satisfy that. None is therefore now in “pensionable employment”.
Section E 4 of the Pension Regulations is headed “Entitlement to payment of retirement benefits” and provides a number of “Cases” in which a person falling within the Case becomes entitled to payment of retirement benefit. Paragraph E 4 (4) provides:-
“E 4 (4) In Case C the person –
(a) has not attained the age of 60,
(b) has ceased after 31 st March 1972 before attaining the age of 60 to be in pensionable employment,
(c) is incapacitated and became so before attaining the age of 60, and
(d) is not within Case D
and, in cases where the pensionable employment ceased on or after 1 st April 1997 the Secretary of State has notified the person in writing that he has not exercised, or is not considering the exercise of, his powers under Regulation 5 (1) (b) or (c), or Regulation 9 (1) (a) of the Education (Restriction of Employment) Regulations 2000 by reason of that person's misconduct on the grounds mentioned in paragraph (b) (misconduct) or paragraph (c) (not a fit and proper person) of Section 218 (6 Z A) of the Education Reform Act 1988 to direct that he be not appointed to or employed in relevant employment as defined in Regulation 4 of those Regulations.
I need not refer to Case D but it is the case that with respect to every Teacher all the provisions of Case C are satisfied. In consequence the entitlement to retirement benefit has taken effect – E 4 (8) – and did so as soon as he or she fell into that Case. In practice, the Teachers thus each became entitled to IHRB, their respective 200 working days of sick benefit having expired, on the earliest date on which (i) it was accepted by the administrators of the Teachers’ Pension Scheme that each respectively was likely permanently to be unfit to serve as a teacher and (ii) that the notification by the Secretary of State as referred to in the closing words of Case C had been given.
It will have been noted, firstly, that a cesser of pensionable employment is, of itself, not necessarily a cesser of employment, nor, so far as has been there expressed, even a cesser of employment as a teacher and, secondly, that there is no part of the Pension Regulations that expressly requires a “retirement” or a “resignation” (whatever either term may mean) before IHRB may be paid and received.
Contract
All the Teachers were employed and, if their submissions succeed, are still employed on the “Conditions of Service for School Teachers in England and Wales”, revised edition August 2000, a booklet which, including the printed commentary thereon by the National Employers Organisation for School Teaching and 6 Teachers’ Organisations, is of some 70 pages. The Conditions are the fruit of negotiations between 8 bodies including the Local Government Association and a number of appropriate Unions and professional associations. The Conditions regulate the employment of literally thousands of teachers in England and Wales and are commonly referred to, as I have mentioned, as “the Burgundy Book”. Despite their 70 pages, the Conditions are not said to be exhaustive but I have not been taken to any additional terms adding to or qualifying those of the Burgundy Book.
In that Book “teachers” is a term defined, with the exceptions irrelevant for present purposes, to mean all teachers who work in schools – section 1 clause 1.1. Section 3 clause 2.1 provides for teachers resigning their appointments; they are to give the notice required by section 3 clause 4.
That clause specifies that teachers “shall be under a minimum of 2 months’ notice and in the Summer Term 3 months’, terminating at the end of a school term ….”. Longer notice is required from or to head teachers. Where a teacher shall have been continuously employed for more than 8 years, such a teacher is entitled to receive longer notice as specified in the Employment Rights Act 1996. By section 3 clause 4.4 it is provided that these terms:-
“Apply to the termination of a teacher's contract for any reason other than gross misconduct, including dismissal for ill health and redundancy.”
Section 3 clause 5.1 makes reference to the Education (Teachers’ Qualifications and Health Standards) (England) Regulations 1999 simply, as it would seem, to remind readers that thereunder there are circumstances in which a teacher “may have his/her employment suspended or terminated on medical grounds”. I shall refer later to the 1999 Regulations.
The Burgundy Book makes provision – section 3 clause 6.1 – for automatic retirement at a certain age and mentions that retirement before that age may entitle the teacher to benefits under the Regulations there specified. There is no specific reference there to retirement giving rise to any contractual benefit.
Section 5 of the Burgundy Book is as to the sick pay scheme; clause 2.1 provides, for example, that, in general, a teacher absent from duty because of illness in his fourth or subsequent years of employment is to be entitled to full pay for up to 100 working days and half pay thereafter for a further 100 days. The employer is given a discretion to exceed the minimum specified. Section 5 clause 6 (which I shall call “Clause 6.1”) is very relevant and needs to be set out in full:-
“ 6. Termination of employment during a period of sick leave.
6.1 In the event of a teacher exhausting in part or full his/her entitlements under paragraph 2.1 above and being given notice of the termination of his/her contract without returning to work on the ground of permanent incapacity or for some other reason related to the sickness absence, he/she shall be paid full salary for the notice period with normal deductions only.”
Crucial to the cases before me is the “and” in the second line. The Commentary to which I have referred mentions that this Clause 6.1 is nothing new but is merely “a slight redraft” of the provision in the earlier edition of the Book. There is no express provision whereby the employer has to give the...
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