Thomas v University of Bradford
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Griffiths,Lord Mackay of Clashfern,Lord Ackner |
| Judgment Date | 26 February 1987 |
| Judgment citation (vLex) | [1987] UKHL J0226-1 |
| Date | 26 February 1987 |
| Court | House of Lords |
[1987] UKHL J0226-1
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Griffiths
Lord Mackay of Clashfern
Lord Ackner
House of Lords
My Lords,
For the reasons given in the speeches of my noble and learned friends Lord Griffiths and Lord Ackner, with both of which I agree, I would allow this appeal.
My Lords,
I have had the advantage of reading in draft the speeches prepared by my noble and learned friends, Lord Griffiths and Lord Ackner. I agree with them, and for the reasons which they give I would allow the appeal.
My Lords,
In March 1973 Miss Thomas accepted the offer of an appointment as lecturer in sociology at Bradford University. She took up her appointment in October 1973. After a probationary period, she became a permanent member of the academic staff. In February 1983 the University dismissed her. Miss Thomas disputes the validity of the dismissal and the issue before your Lordships is whether that dispute falls within the jurisdiction of the High Court or that of the University Visitor.
It is common ground that as from 1 October 1973, Miss Thomas became (i) a member of the academic staff of the university, (ii) an employee of the university under a contract of service, (iii) the holder of office in and a member of the university within the meaning of the charter and statutes. It is also common ground that the contract of service included the following terms, namely, (a) that the employment of Miss Thomas and her status as a member of the university were co-terminous; (b) that Miss Thomas would be subject to the burden and entitled to the benefit of the disciplinary rules and procedures established and set out in the charter, statutes, ordinances and regulations such as related to permanent members of the academic staff; (c) that Miss Thomas should not be dismissed from her employment without the due fulfilment of all the procedures governing removal from office.
A member of the permanent academic staff of the University, such as Miss Thomas, has security of tenure until retirement age unless removed from office by the council of the University for "good cause," see Statute 30(2) and Ordinance 12.0(4)( a). "Good cause" is defined by Statute 30(4) in the following terms:
"Good cause" when used in reference to removal from office, membership or place means:
(A) Conviction of any offence which the Court or the Council (as the case may be) considers to be such as to render the person concerned unfit for the execution of the duties of his office.
(B) Any physical or mental incapacity which the Court or the Council (as the case may be) considers to be such as to render the person concerned unfit for the execution of the duties of his office.
(C) Conduct which the Court or the Council (as the case may be) considers to be such as to constitute failure or inability of the person concerned to perform the duties of his office or to comply with the conditions of tenure of his office."
The charter, statutes, ordinances and regulations of the university provide an elaborate code of procedures that are to be followed before the council arrive at a decision to remove a member of the academic staff from office and thus terminate their employment by the university. The object of the procedure is to ensure that any complaint is carefully investigated and that the member of staff has a full and fair opportunity to answer the complaint.
Miss Thomas alleges that the university failed to follow the correct procedure in the investigation of the complaint against her and that accordingly the decision of the council to dismiss her was ultra vires, null and void. She alleges that the university should have investigated the complaint against her through the procedure provided under ordinance 13 and regulation 23. The university admit that they did not so proceed but say that they followed the correct procedure which is that prescribed by statute 30. It is unnecessary to consider this dispute in any further detail as it is not for your Lordships to adjudicate upon it. I would observe,however, that as at present advised, I do not agree with the view expressed by Whitford J. and Sir George Waller that it presents no difficulty of construction. I think it may be a matter of considerable difficulty to determine which was the appropriate procedure in the present case.
Against this background Miss Thomas determined to challenge her dismissal, and chose to do so by issuing a writ in the Chancery Division of the High Court on 18 September 1984, some 18 months after the date of her dismissal. By her statement of claim of the same date, she claimed a declaration that the decision taken by the council to dismiss her was ultra vires null and void; a declaration that the dismissal from her employment was ultra vires null and void and damages or alternatively arrears of salary from 12 February 1983 until judgment together with interest on damages and loss of salary. The grounds of her claim were confined to allegations that in breach of the terms of her contract of service the university had failed to follow the procedures prescribed by ordinance 13 and regulation 23 and further that irregularities in the procedure in fact adopted amounted to breaches of natural justice. The statement of claim did not raise the issue as to whether or not there was "good cause" for dismissing Miss Thomas, and your Lordships remain in ignorance of the underlying reasons for Miss Thomas's dismissal.
The university took the view that this dispute which is confined to the proper interpretation and execution of their internal disciplinary procedures as provided in their charter, statutes, ordinance and regulations, fell within the exclusive jurisdiction of the university visitor and not with the courts of law. Accordingly, by notice of motion dated 12 November 1984, the university applied for an order to stay the proceedings until Miss Thomas should have petitioned the visitor of the university and he had adjudicated upon the issues raised in her statement of claim.
It is now conceded by the university that this was not the appropriate form of relief that they should have sought and that it may to some extent have misled Whitford J. in his approach to the case. The university's submission to Whitford J. included a concession that after the visitor had determined the questions concerning the construction and application of the internal rules, Miss Thomas could then bring an action for damages in the courts and the court would not be bound by the visitor's determination. As Hoffmann J. said in Hines v. Birkbeck College [1981] Ch. 524, at p. 543:
"In those circumstances it is not surprising that Whitford J. thought that the plaintiff might as well start her action in the courts in the first place. No such concession was made before me and in my judgment it was wrong."
The university should have taken out a summons to strike out the statement of claim on the ground that the court had no jurisdiction in respect of the subject-matter of the claim, as was done in Hines v. Birkbeck College. Your Lordships, at the request of the university and without objection by Miss Thomas, allowed an amendment to the relief sought by the university and the appeal has been argued on the basis that the relief sought is an order to strike out the statement of claim.
Whitford J. [1986] Ch. 381, 394, 395, dismissed the application of the university and said in the final paragraph of his judgment:
"I have referred to the suggestion that in the first instance the matter ought to go before the visitor for consideration of questions arising under paragraphs 1 and 10 and then come back to the court. I cannot imagine a procedure more inconvenient or more likely to involve a wholly unnecessary waste of time and money than this. This is an allegation of a simple breach of contract. By writing the rules into the contract the question at issue has been brought within the jurisidiction of the court, and the application for a stay pending a reference to the visitor must, in my judgment, accordingly fail."
The Court of Appeal [1986] Ch. 381, dismissed the appeal of the university. Although the reasons they gave for their decision were different each member of the court held that the dispute fell within the jurisdiction of the courts and not the visitor. The underlying reason common to each judgment was that as the issue in the case concerned a breach of a contract the courts retained jurisdiction to adjudicate upon it. There is, however, a marked difference of approach to the solution of the problem.
Fox L.J. accepted that the visitor's jurisdiction was exclusive but, as I understand his judgment, would confine it to such matters as the court chose to concede to the visitor in which he included the admission and amotion (the removal from office) of members, the resolution of academic standards of a university teacher or student, and other matters that in practical terms he considered unsuitable to the jurisdiction of the courts and in which he included the marking of examination papers; the awarding of prizes and the choice of Fellows. It is obvious that disputes raising such issues can be formulated as breaches of contract or torts and Fox L.J. acknowledged that this could not be the criterion upon which such claims should be judged to fall within or without the visitor's jurisdiction. However, he considered that the present case, which alleged a contractual failure to follow the university's internal procedures, should be adjudicated upon by the court as a part of the general law of contract. Fox L.J.'s view is summed up in the following passage from his judgment, at p. 407G:
"His (the visitor's) jurisdiction derives from the status of...
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