Thomas v University of Bradford

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE FOX,LORD JUSTICE LLOYD,SIR GEORGE WALLER
Judgment Date30 October 1985
Judgment citation (vLex)[1985] EWCA Civ J1030-11
Docket Number85/0645
Date30 October 1985

[1985] EWCA Civ J1030-11

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

(MR JUSTICE WHITFORD)

Royal Courts of Justice,

Before:

Lord Justice Fox

Lord Justice Lloyd

Sir George Waller

85/0645

1984 T. No. 4442

Thomas
and
University of Bradford

MR LEOLIN PRICE, Q.C., and MR H. PICARDA (instructed by Messrs. Robbins Olivey & Blake Lapthorn, Agents for Sampson Wade & Co., Solicitors, Bradford) appeared on behalf of the Appellants.

MR DAVID TURNER-SAMUELS, Q.C., and MR B. LANG-STAFF (instructed by Messrs. Goldsmith Williams, Solicitors, Birkenhead) appeared on behalf of the Respondent.

LORD JUSTICE FOX
1

This is an appeal by the defendant, the University of Bradford, from a decision of Whitford J. dismissing the University's application for a stay of the action pending reference of various matters to the Visitor of the University.

2

In March 1973 the plaintiff, Brenda Thomas, accepted an appointment as a lecturer in sociology in the University. The appointment took effect on 1st October 1973. In February 1983 the University purported to dismiss her. In the action the plaintiff asserts that the decision to dismiss her was ultra vires, null and void, and seeks a declaration to that effect, and damages; alternatively, arrears of salary.

3

It is common ground that the plaintiff, as from 1st October 1973, 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 membership of the University within the meaning of the Charter and statutes.

4

It is also common ground that the Contract of Service included the following terms, namely:

  • (a) that the employment of the plaintiff and her status as a member of the University were coterminous;

  • (b) that the plaintiff would be subject to the burden and entitled to the benefit of the disciplinary rules and procedures established and set out by the Charter, Statutes, Ordinances and Regulations such as related to permanent members of the academic staff;

  • (c) that the plaintiff ought not to be dismissed from her employment without the due fulfilment of all the procedures governing removal from office.

5

The University was incorporated by Royal Charter in 1966. Clause 29 of the Charter reserves to the Crown the right to appoint a Visitor by Order in Council on the petition of the Court of the University. No such appointment has been made. The Crown, therefore is, it is accepted, the present Vistor (see Patel v. University of Bradford Senate (1978) 1 WLR 1488 at p. 1491 per Sir Robert Megarry V-C.).

6

The provisions of the constitution of the University which appear to be principally in issue are the following:

7

Ordinance 13 (2)

"2. The University's powers to regulate the conduct of its members stem from the following sources and this Ordinance is promulgated in pursuance thereof:

(a) Academic Staff

The power under Statute 30 to remove from office for 'good cause', which is defined as: '(A) Conviction of any offence which the Council 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 Council considers to he such as to render the person concerned unfit for the execution of the duties of his office.

(C) Conduct which the Council 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'."

Ordinance 13 (5)

"5. Without prejudice to the right of the Vice-Chancellor and Principal to exercise any powers vested in him by Statute 5 or other provision of the Charter and Statutes, any allegation that the conduct of a member of the academic staff or a student warrants action by the University in pursuance of the powers vested in it and referred to in Clause 2, shall be brought immediately to the notice of the Dean of a Board of Studies appointed by Senate for this purpose (who shall not be the Chairman of the Committee referred to in Clause 6) who shall satisfy himself by such means as he deems fit whether, prima facie, grounds exist for such action. Such means shall include an invitation to the member of staff or the student concerned to make representations either orally or in writing (at the option of the member of staff or the student) to him; always provided that if the member of staff or the student cannot avail himself of that invitation on the first occasion for good cause, the Dean shall afford him further opportunity to do so. If the Dean is not satisfied that prima facie grounds exist for action by the University in pursuance of the powers vested in it and referred to in Claus2, he shall so inform the member of staff or the student concerned and no further action shall be taken".

Ordinance 13 (6)

"6. If the Dean is satisfied that prima facie grounds exist for considering that action by the University is warranted, he shall, if in his view the allegation, if proved, would merit a penalty less severe than removal from office or suspension, in the case of a member of the academic staff, or expulsion, suspension or exclusion in the case of a student, inform the member of the academic staff or the student of his opinion that prima facie grounds exist for considering that action by the University is warranted but that the matter can be dealt with by either a reprimand or a fine not exceeding £10 imposed, on his recommendation, by the Vice-Chancellor and Principal. The Dean shall then warn the member of the academic staff or the student that to accept a penalty at the hands of the Vice-Chancellor and Principal will be an admission that the allegation is true and will then ask him whether he is prepared to accept that penalty. If the answer is affirmative, the Vice-Chancellor and Principal may, on the recommendation of the Dean, impose a penalty within the limits indicated above and, if he does, the matter will end there. In the case of a fine the Vice-Chancellor and Principal may prescribe a period for payment.

If however, the answer is negative or if the Dean is of the opinion that the allegation, if proved, might merit removal from office or suspension, in the case of a member of the academic staff, or expulsion, suspension or exclusion, in the case of a student, he shall, as soon as reasonably possible, refer the case to a committee constituted as follows:

(a) Member of the Academic Staff.

One Dean of a Board of Studies, as Chairman Two members of the Council of the University One member of the Senate Three members of the academic staff".

8

Under Ordinance 13 (7) the function of the Committee is to establish whether the allegation, if proved, would warrant action by the University and, if so, to determine whether the allegation is proved and, if so, to make a recommendation to the Council as to the action to be taken.

9

Statute 30 (2)

"(2) The Pro-Chancellors, the Vice-Chancellor and Principal, the Treasurer, the Pro-Vice-Chancellors, the Registrar, the Librarian, the Bursar, any member of the Council and any member of the academic staff of the University may be removed from office by the Council for what the Council after due consideration shall deem to be good cause, provided that the resolution for such removal be passed by a majority of not less than two-thirds of those present and voting. The Council may appoint, and, if so requested by the person concerned, or by any three members of the Council, shall appoint before such removal a Joint Committee to examine the case and report to the Council thereon. The Joint Committee shall consist of the Chairman of the Council as chairman, two members of the Council not being members of the Senate and three members appointed by the Senate."

10

There is no evidence or pleading as to the precise nature of the dispute which gave rise to the University's decision to dismiss the plaintiff, but we understand from Counsel that it related to the questions with whom and under whose direction the plaintiff was to work.

11

The plaintiff complains that her dismissal or purported dismissal was in breach of the Statutes, Ordinances and Regulations. She complains (in paragraph 9 of the Statement of Claim) as follows:

(i) The University did not bring the allegation that the conduct of the plaintiff warranted dismissal to the notice of a Dean or a Board of Studies appointed by the Senate for that purpose.

12

That is admitted by the University, but it is said not to be a breach of contract or wrongful.

(ii) The University failed to establish a Committee pursuant to Ordinance 13 (6) to consider the matter as required by the Ordinances.

13

This is admitted by the University, but is said not to be a breach of contract or wrongful.

(iii) The University erroneously took the view that Ordinance 13 and Regulation 23 were inapplicable.

14

This is admitted, save that it is denied that the University's view was erroneous.

(iv) The Vice-Chancellor advised the Pro-Chancellor to set up a Joint Committee under what (it is alleged) must have been Statute 30 (2), whereas the Joint Committee can only be set up by the Council at the request, in this instance, of the plaintiff.

15

The University admits the advice and admits the setting up of a Joint Committee under Statute 30 (2), but says that the Joint Committee was duly and effectively appointed by the Council.

(v) The University instituted proceedings before the Council without first having the matter placed before them by a Committee duly appointed under Ordinance 13 that had conducted its hearings.

16

This is admitted, but the University denies that its...

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