Wiltshire County Council v National Association of Teachers in Further and Higher Education

Mrs. Guy was a part-time teacher at the Swindon Technical College. She was employed by the Wiltshire County Council. Her services were terminated at the end of 1977 because her work could be done by full-time teachers. As a result, she brought a claim before the industrial tribunal. She claimed either compensation for unfair dismissal or for redundancy.

Everything depends on the nature of the contract which she had with the Wiltshire County Council. Was it "a contract under which she was employed for a fixed term" within the provisions in Schedule 1, paragraph 5(2) (b) of the Trade Union and Labour Relations Act 1974? If the contract under which she was employed was for a "fixed term", then, when it came to an end, she would be treated as dismissed by her employer and be entitled to compensation. But, if the contract was not for a "fixed term", then she would be entitled to nothing.

Mrs. Guy had been a part-time teacher for nearly 10 years. Each year she was offered an appointment for the coming session. During that session she would run courses in science and humanities. She was an hourly paid lecturer. The number of hours, she worked every week fluctuated according to the number of students, and so forth. She might work for 10 or even 20 hours a week: but, if for any reason a course ended early, she would not be paid.

The formal documents start with a letter from the Principal to Mrs. Guy, which says:

" Offer of Appointment for Session 1976/77, I wish to offer you employment as a Part-time Teacher as detailed in the attached'Offer of appointment' form.

"The classes shown will run subject to sufficient enrolmentsbeing received in September but unless you are notified to the contrary please assume that the class will be held".

She had to accept the offer within seven days. She replied, and said:

"To: The Principal, The College, Swindon. I accept the appointment to teach the following classes … I am fully conversant with, and will observe, the regulation relating to my appointment".

The classes were shown below in a box, indicating on which days of the week they were to be held and the times. That was all set out in writing. But, as she had done this for so many years, she knew exactly what took place. She would take classes as and when there were enough people. Sometimes they might finish early. But she was only paid for the hours she worked.

Mrs. Guy took her last class on the last day of the session on the 24th June, 1977. No doubt she was expecting to go on during the following year. But, at the beginning of the next year, she found that she was not offered anything. I will read her letter of complaint which she sent to the Principal on the 27th October, 1977. She said:

"Since 1969 I have been regularly employed every year as a part-time lecturer in general studies. This session I have been offered no work in spite of having made it plain that I was available. Could you please let me have a. written statement of the reason for this. I was previously employed in the Department of Science and Humanities".

The Principal replied to that letter on the 17th November, 1977. I will not read the whole letter, but he said:

"The major reason for the decline in part-time teaching in general studies was the appointment earlier last session of afull-time Lecturer Grade I in Communications and General Studies' A WLO joined us at the start of this academic session…

"In the 3rd week of the term 2 hours of extra general studies teaching did materialise as a result of the commencement of a new building course …s I understand … that anything so small such as 2 hours would be unacceptable to you".

It seems that she was offered the opportunity of 2 hours, but she said it was too small. It would mean that she would have to find another job.

She complained to the industrial tribunal. This preliminary point was taken: Was she a person who had been "dismissed"? That depended upon the construction of the contract. I will read this important paragraph from the findings of the tribunal (paragraph 21):

"After some hesitation we have decided that was Guy was employed on a fixed term contract, starting at the beginning of the autumn term and ending on the last day of the summer term. We appreciate that there was always a possibility that she might run out of work before the end of this period. There may be a variety of reasons why a teacher may find himself without students is to teach: courses may end sooner than expected or students may get bored and stay away or (nowadays) they may'go on strike'. Mrs. Guy bound herself to serve the respondents for the whole of the academic session, that is to say, until the last day of the summer term. We think that this is a proper inference to draw from the written contract and that this was, to all intents and purposes, a contract for a fixed term".

The county council thought that this finding was of general importance in the beaching profession. To clear it up they appealed to the employment appeal tribunal. Mr. Justice Phillipspresided. They affirmed the decision of the industrial tribunal. But they put the case not only on the construction of this particular contract: but also on a much more general question. Mr. Justice Phillips said that a contract of employment which came to an end on the happening of an uncertain future, event would be a contract, for a "fixed term". For example, he said, a contract of employment "for the duration of the present government" or "during the life of the present sovereign", or "for some other period capable of being determined by reference to a prescribed test", would be a contract for a fixed term.

That would be a very important extension of the words "fixed term". It was disapproved in the recent case of Ryan v. Shipboard Maintenance Ltd. in which judgment was given on the 9th November, 1979. Mr. Justice Kilner Brown ventured to query the proposition of Mr. Justice Phillips. He declined to follow it. In that case a man was employed as a repairer on a ship, either in port or on the high seas. The job started and finished with the repairing of a ship, after which he received unemployment pay. The question was whether that was a contract for a fixed term or not. Mr, Justice Kilner Brown held it was not. He said:

"… we take the view that it is stretching the meaning of the words beyond the intention of Parliament to say that it covers an event which can be identified in character but cannot be identified with a precise date in the future".

It does not seem desirable for us to try and clear up the position. Section 5(2)(b) of the Trade Union and Labour Relations Act 1974 says that an employee shall be treated as dismissed "where under that contract he is employed for a fixed term". If you turn back to the Contracts of Employment Act 1972, section, the legislature clearly thought that, in order to be a"fixed term", there had to be a date stated at the beginning when the contract will expire. Section 4(4) says:

"If the contract is for a fixed term, the statement given under subsection (1) of this section shall state the date when the contract expires".

This is in accord with what we said in the recent case of Dixon v. B. B. C.. (1979) Industrial Cases Reports 281. I said at page 285:

"A fixed term is sufficiently stated if the contract is for a specifically stated period, even though it is determinable by notice within that period".

That is borne out by consideration of other clauses of the Schedule to the 1974 Act, I would also mention an interesting paragraph in the report of Lord Donovan's Royal Commission on trade unions. Paragraph 558 says:

"Most employees have contracts of employment for an indefinite period. However the need for protection against unfair deprivation of employment may also arise when the contract of employment has been entered into for a fixed period or for a particular purpose and if renewal is refused by the employer".

Although the Royal Commission recommended "a particular purpose" the legislature did not accept that recommendation. It limited the protection to contracts for a "fixed period". It did not extend the protection to a contract "for a particular purpose".

If I may seek to draw the matter together, it seems to me that if there is a contract by which a man is to do a particular task or to carry out a particular purpose, then when that task or purpose comes to an end the contract is...