[New search]
[Printable RTF version]
[Help]
Case No: EATRF 99/0006 A1
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
Thursday 16 March 2000
B e f o r e :
LORD JUSTICE SIMON BROWN
LORD JUSTICE OTTON
and
LORD JUSTICE MUMMERY
- - - - - - - - - - - - - - - - - - - - -
|
DRAGE
|
Appellant
|
|
-
and -
|
|
|
GOVERNORS
OF GREENFORD HIGH SCHOOL
|
Respondents
|
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr A. Fraser-Urquhart (instructed by Messrs Harkavys, 13 Harley Street,
London W1N 1DA, solicitors) for the Appellant
Mr N. Randall (instructed by Messrs Brown Cooper of 7 Southampton
Place, London WC1A 2DR, Solicitors) for the Respondents
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE SIMON BROWN:
Introduction
This appeal raises the perennial problem of identifying the effective date of
termination of employment when an employee fails in an internal appeal against
a decision that he be summarily dismissed. Is the effective date of
termination that of the initial decision or is it the date when the internal
appeal is dismissed? Every recorded case hitherto, we are told, has favoured
the date of the initial decision. Is that the case here too? The issue can
be important in several contexts. It can decide whether the employee
satisfies the jurisdictional requirement of continuous employment for the
qualifying period ending with the effective date of termination - see, for
example, J. Sainsbury Ltd v Savage [1981] ICR 1. It can decide
whether an ex-employee is entitled to allege discrimination in the conduct of
an internal appeal against dismissal - see Adekeye v The Post Office
[1997] IRLR 105. Or, as here, it can decide whether a complaint to the
Industrial Tribunal has been made in time.
S.111(2) of the Employment Rights Act 1996 provides that:
"... an industrial tribunal shall not consider a complaint under this section
unless it is presented to the tribunal -
(a) before the end of the period of three months beginning with the effective
date of termination ... "
S.97(1) of the same Act provides that:
"´The effective date of termination' -
(b) in relation to an employee whose contract of employment is terminated
without notice, means the date on which the termination takes effect. ..."
The appellant presented his Originating Application to the Industrial Tribunal
on 11 June 1996, complaining that he had been unfairly dismissed and giving his
dates of employment as 6 April 1978 to 13 March 1996 (the latter date being, of
course, within the three month limitation period). The respondents' notice
of appearance answered "Yes" to the question: "Are the dates of employment
given by the applicant correct?" Four days were set aside for the hearing of
the complaint to commence on 2 October 1997. In the event, some half an hour
before the hearing began, the respondents notified the appellant that they
proposed to argue that the effective date of termination of his employment had
been, not 13 March 1996 when he was notified of the failure of his appeal
against summary dismissal, but 17 February 1996 when he had been told of the
initial decision to dismiss him. Mr Randall (counsel for the respondents at
all three stages of this litigation) had thought of the point at 6 a.m. on the
first morning of the hearing. It was then (as Otton LJ felicitously put it)
that he woke up to it. As it went to the Industrial Tribunal's jurisdiction,
it was dealt with as a preliminary point - following only a short adjournment -
and was decided in the respondents' favour.
On 3 August 1998 the Employment Appeal Tribunal (Judge Levy QC and a single
other member) upheld the Industrial Tribunal's decision and dismissed the
appellant's appeal. The appellant now appeals to this Court with the
permission of Stuart-Smith and Mummery LJJ granted on 17 December 1998.
The Facts
The appellant is a teacher. He was employed at Greenford High School, a
grant-maintained school in Middlesex. His employer was the governing body of
the school, the respondents to this appeal. He joined originally as Head of
Boys Physical Education on 6 April 1978. At the time of his dismissal he had
been employed at the school with an unblemished character for almost eighteen
years and was part of the Senior Management Team. I shall come in the next
section of this judgment to the relevant terms of the appellant's contract of
employment and the various provisions to be found there and in the school's
Articles of Government dealing with summary dismissal.
On 23 January 1996 the head teacher (Ms Griffin) put to the appellant a number
of allegations of inappropriate behaviour towards six girls at the school
(including kissing and hugging), amounting to allegations of gross misconduct,
in the light of which she formally suspended the appellant on full pay. On 25
January 1996 she wrote to him:
"This letter formally confirms that suspension from your duties pending your
attendance at a disciplinary hearing in front of a panel of governors. You
should be aware that, unless further relevant information becomes available,
the governors may decide that you be dismissed on the grounds of gross
misconduct."
On 30 January 1996 the head teacher wrote again, outlining the specific
disciplinary charges and requesting the appellant's attendance at a
disciplinary hearing before the staff committee of governors on 13 and 14
February.
On 17 February 1996, following that disciplinary hearing, the chairman of the
respondent governors who had himself chaired the staff committee, wrote to the
appellant:
"Dear Mr Drage,
Decision of the Staff Committee
Enclosed is the statement of the staff committee of the governing body
recording its decision following the disciplinary hearing to consider
allegations made against you."
The relevant part of the enclosed statement read:
"Decision of the Staff Committee in the disciplinary case against Mr Roy
Drage - 17 February 1996
Following two long sessions hearing evidence and a further long period of
deliberation the staffing committee has reached the unanimous decision that Mr
Drage be dismissed from his employment at the school.
...
The staffing committee, by a majority decision, is of the view that the sum
total of its findings is that Mr Drage is guilty of gross misconduct and should
therefore be dismissed summarily from his post.
Mr Drage has the right of appeal against this decision to the appeals panel of
the governing body. If he should wish to exercise that right he should write
to the clerk to the governors at the school within fourteen days of the date of
this statement."
Mr Drage immediately gave notice through solicitors that he was appealing
"against the findings of the staffing committee ... and the penalty imposed by
their decision of 17 February 1996".
The appeal panel sat on 6, 8, 11 and 12 March 1996. They rejected Mr Drage's
appeal. On 13 March, the clerk to the governing body wrote in these terms:
"Dear Mr Drage,
Decision of appeal panel, Greenford High School
Enclosed is the statement of the appeal panel of the governing body of
Greenford High School, recording their decision following your appeal against
the decision of the staffing committee of 17 February 1996."
The relevant parts of the enclosed statement stated:
"Decision of the appeals panel in the appeal of Mr Roy Drage against the
decision of the staffing committee - 12 March 1996
On a majority decision the appeals panel believes the decision of the staffing
committee should stand.
...
The appeals panel after careful investigation and consideration of all the
information placed before it has therefore formed the belief that Mr Drage's
conduct was such that he should be dismissed from the school with immediate
effect."
The clerk to the governing body on the same day also wrote a second letter to
Mr Drage stating that:
"Following the decision of the appeal panel of the governing body to dismiss
your appeal against the decision of the staffing committee to dismiss you from
your post, I now confirm that your employment with the school will terminate on
13 March 1996.
I will make arrangements for salary to that date to be paid to you."
I have already described the course taken by the proceedings thereafter brought
by the appellant in the Industrial Tribunal. I should add only this: in the
respondents' Grounds of Resistance particularising a contention that they
"acted in good faith and reasonably at all times", they said:
"(iii) In all the circumstances the respondent acted reasonably in the manner
in which it investigated the complaint made against the applicant in conducting
two lengthy hearings and thereafter imposing the sanction of
summary dismissal". [Emphasis added]
The Contractual Position
i. The Contract
The contract of employment under which the appellant was employed at the time
of his dismissal (which had superseded earlier agreements) was one dated 3
August 1994. By clause 5(f)(iii) it was provided that:
"The procedure for dismissal or suspension of a Teacher shall be in accordance
with the disciplinary rules and procedures established by the governing body
for all members of staff in accordance with the provisions of the Articles of
Government. ..."
ii. The Code of Disciplinary Procedure for Teachers (schedule 2 to the
Contract)
The following paragraphs are material:
"1. The procedure where consideration is being given to the dismissal of a
teacher is laid down in the Articles of Government. ...
4(iv) Staff Committee hearings
... in all cases of gross misconduct, the matter shall be referred to the
statutory staff committee ...
The committee shall have power, if they find the complaint to be proven, to
issue a written warning, a final written warning or to dismiss the teacher,
whichever may be appropriate.
6. Gross misconduct
Gross misconduct is any conduct, whether within the school or outside including
serious breaches of the criminal law, which if proved shall render it
undesirable for the teacher to continue to teach at the school. The head
teacher has power, when an allegation of gross misconduct is made, to suspend
the teacher from duty, normally on full pay, pending investigation and the
holding of the meeting of the staff committee to consider the allegations, and
shall inform the chair of the staff committee.
7. Appeal against dismissal
(i) Where a teacher has been dismissed by the committee of governors, s/he may,
within fourteen days of the hearing at which the dismissal was decided, give
notice in writing to the clerk to the governors of her/his wish to appeal.
(ii) The appeal shall be heard by the governing body excluding the three
governors from the committee who conducted the original hearing, as described
in 6 above. ...
(iii) The decision of the governors shall be binding."
The Articles of Government
Article 16, under the heading "Discipline, Suspension and Dismissal of Staff",
provides so far as material:
"(1) The governing body shall establish disciplinary rules and procedures for
all members of staff ...
(2) The staff committee ... shall be responsible for considering disciplinary
matters in respect of all persons employed to work at the school and any
proposal that such a person should be dismissed.
(4) The staff committee and head teacher shall each have power to suspend any
person employed to work at the school where, in the opinion of the staff
committee or the head teacher, as the case may be, exclusion from the school is
required.
(5) The head teacher, when suspending any person as under (4), shall
immediately inform the staff committee.
(6) Any suspension under paragraph (4) may be ended only by the staff
committee; and the staff committee shall, on ending such a suspension,
immediately inform the head teacher.
(8) The staff committee shall have power to decide that the employment of any
person employed to work at the school should be terminated.
(9) Where the staff committee have so decided, the person concerned shall be
given an opportunity to appeal against their decision to the appeal committee
... before any action is taken to implement it.
(12) Subject to the provisions of paragraphs (8) to (11), where it has been
determined that the contract of any person employed to work at the school shall
be terminated, the governing body shall ... terminate his contract without
notice if the circumstances are such that they are entitled to do so by reason
of his conduct.
(13) In this article "suspend" means suspend without loss of emoluments."
Those Articles of Government clearly comply with the requirements of the
Education Act 1993. S.55 of that Act provides so far as relevant:
"(1) For every governing body of a grant-maintained school there shall be ...
(b) an instrument (to be known as the Articles of Government) in accordance
with which the school is to be conducted.
(5) Schedule 6 to this Act (content of Articles of Government) shall have
effect."
Paragraph 3 of schedule 6 to the Act provides so far as relevant:
"3(1) The Articles must include provision as to -
(a) disciplinary rules and procedures applicable to members of the staff of the
school ...
(2) The Articles must also include provision as to arrangements -
... (c) for giving any member of staff whom it has been decided to dismiss an
opportunity of appealing against that decision before any action is taken to
implement it."
The Decisions below
The Industrial Tribunal found "as a fact" that the letter of 17 February 1996
was "a letter of summary dismissal". In reaching that conclusion they had
looked at "the contractual documentation" but not at the Articles of
Government: the jurisdictional point having been taken at such short notice,
these were not available to them. The Industrial Tribunal concluded in
addition that, since it was reasonably practicable for the appellant to have
presented his complaint within three months of 17 February, they had no
discretion to extend the limitation period under the provisions of s.111(2)(b)
of the 1996 Act. That latter aspect of their decision was not appealed.
The Employment Appeal Tribunal did have the benefit of the Articles of
Government. They were not, however, persuaded that Article 16 carried the day
for the appellant. The determining paragraph of their judgment was this:
"We turn back to the letters sent to Mr Drage [on 17 February] and the
documents which accompanied them. Despite [counsel's] determined
submissions, we do not find that there is an ambiguity in the documents. In
the covering letter dated 17 February the words used are ´recording its
decision'. In the document accompanying it, there is the heading
´Disciplinary Hearing' and on the next line ´Decision'. In the
first paragraph the words ´unanimous decision that Mr Drage be dismissed'.
In the penultimate paragraph there are the words ´should be dismissed
summarily from his post'. In the last paragraph the words ´has the
right of appeal against this decision'. In our judgment, looking at these
documents against the background of what Mr Drage must have known at the time,
namely he had faced a Staffing Committee whose decision was that he should be
dismissed, from which decision he could appeal. In our judgment any
reasonable man, as Mr Drage we are sure is, must have drawn the conclusion that
he was dismissed as from 17 February, subject to the right to appeal."
Mr Randall had cited to the Employment Appeal Tribunal (as he cited to us)
Browne-Wilkinson J's judgment (when presiding in the Employment Appeal
Tribunal) in Chapman v Letheby & Christopher Limited [1981] IRLR
440, reflected in the headnote:
"Whether in a particular case a dismissal letter evinces an intention on the
part of the employers to determine the contract at once, wages being paid in
lieu of proper notice, or an intention only to terminate the contract at a
future date, depends upon the construction of the letter itself. The
construction to be put on the letter should not be a technical one but should
reflect what an ordinary, reasonable employee would understand by the words
used. It should be construed, moreover, in the light of the facts known to
the employee at the date he received the letter."
The Appellant's Case
The appellant's case in a nutshell is that the documentation on 17 February did
not unequivocally and unambiguously effect a dismissal of the appellant as at
that date and, indeed, that the way the parties thereafter conducted themselves
amply demonstrated their mutual understanding that it was not until the failure
of his appeal on 13 March that the appellant finally came to be dismissed.
Contrast, says Mr Fraser-Urquhart, the letter of 13 March - "I now confirm that
your employment with the school will terminate on 13 March 1996" - and the
appeal panel's statement that "he should be dismissed from the school with
immediate effect", with the language of the communications of 17 February, in
particular the staff committee's statement recording its majority decision that
the appellant "should therefore be dismissed summarily from his post" and
notifying him of his right of appeal. A decision that he "should be
dismissed" is, submits Mr Fraser-Urquhart, no less consistent with the
provisions of Articles 16(8) and (9) of the Articles of Government - the staff
committee's power to decide that employment should be terminated subject to a
right of appeal before the implementation of such a decision - than with
paragraphs 4(iv) and 7(i) of the Code of Disciplinary procedure - arguably
suggesting that it is the staff committee itself which effects the dismissal.
Consider furthermore, submits Mr Fraser-Urquhart, that the appellant continued
to be paid up until 13 March, that his P.45 was made up to that date, and the
terms both of the respondent's notice of appearance (which agreed the
appellant's pleaded dates of employment) and their Grounds of Resistance,
averring that the sanction of summary dismissal was imposed only after
two lengthy hearings.
The Respondents' Case
The respondents' argument can, I think, be summarised essentially as
follows:
(i) Construing the communications of 17 February consistently with the
principles established in Chapman, and therefore ignoring all that
thereafter followed, the appellant as a reasonable employee could have been in
no doubt that he had that day been summarily dismissed. True, he had a right
of appeal, but the appeal was against a dismissal already effected.
(ii) Only the Code of Disciplinary Procedure and not the Articles of Government
were incorporated into the appellant's contract of employment. There is an
inconsistency between them: the Code expressly empowering the staff committee
to dismiss the teacher, the Articles expressly deferring the implementation of
such a decision until after the appeal. Assuming (as counsel conceded would
be the case subject to his argument under (iii) below) that the respondents are
in breach of the Articles (and, indeed, of the 1993 Act) by failing to provide
contractually for non-implementation of a decision to dismiss until after the
hearing of any appeal, that cannot avail the appellant in these proceedings: a
dismissal is nonetheless a dismissal for being wrongful. Rather the
appellant would have to take other proceedings against the governors to claim
for any loss incurred through being time-barred in the present proceedings.
(iii) Even were the Articles of Government to apply to the appellant's
contract, nevertheless, on the authority of Cooke v Ministry of Defence
(an unreported decision of the Court of Appeal dated 14 May 1984), the
non-implementation provision would still not operate to delay the date of
dismissal.
The Authorities
Before examining the decision in Cooke it is necessary first to consider
the earlier Court of Appeal decision in J. Sainsbury Ltd v Savage [1981]
ICR 1, one which the court in Cooke regarded as indistinguishable. The
relevant contractual provision in J. Sainsbury Ltd v Savage was this:
"Pending the decision of an appeal to a director against dismissal, the
employee will be suspended without pay, but if reinstated, will receive full
back pay for the period of suspension."
The judgment of the Employment Appeal Tribunal (presided over by Slynn J) was
summarised in a single paragraph:
"In our view, when a notice of immediate dismissal is given, the dismissal
takes immediate effect. The provisions of this contract as to the appeal
procedure continued to apply. If an appeal is entered, then the dismissed
employee is to be treated as being ´suspended' without pay during the
determination of his appeal, in the sense that if the appeal is successful then
he is reinstated and he will receive full back pay for the period of the
suspension. If the appeal is not successful and it is decided that the
original decision of instant dismissal was right and is affirmed, then the
dismissal takes place effect on the original date. In our view, that is the
date on which the determination takes effect for the purposes of the Act."
Brightman LJ giving the leading judgment in the Court of Appeal said this:
"I find it difficult to improve on the reasoning of the Employment Appeal
Tribunal ... It seems to me clear that, to take an example, if an employee is
dismissed on January 1, on the terms that he then ceases to have the right to
work under the contract of employment, and that the employer ceases likewise to
be under an obligation to pay the employee, the contract of employment is at an
end. ... If he has had no right to work after January 1 and no right to be
paid after January 1, the contract of employment must have been determined as
from January 1."
I turn now to Cooke v Ministry of Defence where the contractual
provision was this:
"In disciplinary cases the decision to dismiss will not be implemented until
the outcome of any appeal is known, the time limit for appeal has expired or it
is clear that the employee does not intend to appeal. Suspension from duty
without pay will normally apply during this period. These provisions should
be brought to the attention of the employee in the letter formally notifying
him that he is to be dismissed on disciplinary grounds."
The letter dismissing Cooke stated:
"I have to inform you that your conviction for theft of government stores has
been considered and it has been decided to dismiss you from the service of the
Ministry of Defence. You are reminded that you have a right of appeal against
dismissal to the Civil Service Appeal Board. ... An appeal must be made
within twenty-one days ... and the decision to dismiss you will not be
implemented, but you will be suspended from duty without pay instead until the
expiry of the twenty-one day period or any earlier date on which you indicate
in writing that you do not propose to appeal. If you do appeal, you will
remain suspended until the date on which the outcome is known. Your
suspension from duty will take effect from close of work on the day on which
you receive this letter i.e. 10 February 1981. You may, if you wish, obtain
other employment and your National Insurance card is being returned to you."
Cumming-Bruce LJ (with whose judgment Griffiths LJ agreed) noted the factual
differences between Cooke's case and J. Sainsbury Ltd v Savage
but continued:
"I agree, respectfully, with the decision of the EAT that that is a distinction
without a material difference. The reasoning of Lord Justice Brightman
applies exactly to the facts of the instant appeal. ... This appellant was
dismissed on 10 February. By the terms of his contract he had a right of
internal appeal, which he exercised. Meanwhile he was not entitled to any
pay and could not be asked to do any work. When the appeal came on, if the
appeal and the Minister, on receiving their report, allowed the appeal, the
effect was to cancel the whole of the dismissal with retrospective effect so
that it ceased to be a dismissal, but if the appeal was dismissed the
dismissal, which was perfectly valid, remained, and proceeded to terminate with
effect from 10 February all mutual obligations of employer and employee."
Although a number of other authorities were cited to us, I for my part found
none of them in the least helpful.
Conclusions
1. The critical question arising in this, as in any similar case where
contractual provision is made for an internal appeal, is whether during the
period between the initial notification and the outcome of the appeal the
employee stands (a) dismissed with the possibility of reinstatement or (b)
suspended with the possibility of the proposed dismissal not being confirmed
and the suspension thus being ended.
2. Although the terms of the initial letter are likely to be of great
importance when seeking to answer that question, they will not necessarily be
determinative. The position is not identical to that arising in a case like
Chapman v Letheby & Christopher Limited where there was no provision
for an internal appeal and where the question was whether the employee was
being paid wages in lieu of notice or being dismissed with effect from a future
date. In a case like the present the contractual position is no less
important than the terms of the initial letter; rather the effect of the
initial letter must be considered in its contractual context. Similarly, in
a case like the present, events subsequent to the initial letter may help
determine its true effect.
3. J. Sainsbury Ltd v Savage, besides being plainly binding on this
Court, was, I would respectfully suggest, clearly rightly decided: the
contractual scheme itself provided for immediate dismissal with the possibility
of reinstatement, rather than for suspension with the possibility of that being
lifted. The immediate cessation of pay was likewise consistent with this.
Cooke v Ministry of Defence, however, seems to me a very different case,
less obviously correctly decided and, as a decision of a two-judge court, less
plainly binding on us - see Cross & Harris' Precedent in English Law,
fourth edition, at page 153. For my part, indeed, I think Cooke to
have been wrongly decided: there seems to me all the difference in the world
between a contractual provision for reinstatement, as in J. Sainsbury Ltd v
Savage, and the provision in Cooke, mirrored in the Ministry's
letter, for non-implementation and in the meantime suspension. It is not,
however, strictly necessary for us to decline to follow Cooke. There
are two material distinctions between that case and this: first, that the
employee there received no pay following the initial decision; second that he
was immediately sent his National Insurance card and was told he was free to
take fresh employment.
4. Whilst it is true that a wrongful dismissal is still a dismissal, the court
should not too readily conclude that a responsible body such as the respondent
governors here have adopted a procedure which would place them in clear breach
of the Articles of Government, the material parts of which are themselves
mandatory under the Education Act 1993.
5. Resolutely though Mr Randall sought to persuade us that his clients did
indeed dismiss the appellant in breach of the school's Articles of Government,
I would acquit them of such conduct. Rather I conclude that both the Code of
Disciplinary Procedure and the letter of 17 February 1996 can and must be
construed consistently with Article 16 of the Articles of Government. Both
clause 5(f)(iii) of the contract and paragraph 1 of the Code in terms assert,
or at any rate assume, such consistency. And I have no real difficulty in
reading paragraphs 4(iv) and 7(i) of the Code as referring to a dismissal in
the limited sense of a decision that the teacher should be dismissed i.e. a
dismissal in the exercise of the power accorded to the staff committee by
Article 16(8), but one which by Article 16(9) is not to be implemented until
after any appeal hearing. The communications of 17 February are clearly
capable of being understood in that sense and, indeed, the contrast between
them and the subsequent communications of 13 March is most striking - to say
nothing of the respondents' conduct (a) in continuing to pay the appellant's
emoluments in full until 13 March, and (b) in pleading as they did in response
to the appellant's Industrial Tribunal complaint. This was, in short, a case
of suspension, not of possible reinstatement.
6. In the result I would hold as a matter of law that the effective date of
termination of this appellant's employment was 13 March 1996 so that his
complaint was presented in time. I would accordingly allow his appeal and
remit the matter to the Industrial Tribunal (now re-named the Employment
Tribunal) for them to determine his substantive complaint of unfair
dismissal.
LORD JUSTICE OTTON:
I agree with both judgments.
LORD JUSTICE MUMMERY:
I agree.
The Industrial Tribunal ( now re-named the Employment Tribunal) was wrong in
law to hold that it had no jurisdiction to hear Mr Drage's claim for unfair
dismissal. The source of that error is to be found in the conclusion in the
Extended Reasons (sent to the parties on 24 October 1997) that the effective
date of the termination of his employment was 17 February 1996 and that the
period of three months for making a complaint to the tribunal had expired
before he presented his originating application on 11 June 1996. On the correct
application of the law the effective date of the termination of his employment
was 13 March 1996. His application to the tribunal was in time.
In my judgment the correct legal position is as follows :-
1. Mr Drage's contract of employment dated 3 August 1994 must, as far as
possible, be construed so as to be compatible with the Articles of Government
of the school made pursuant to section 55 of and Schedule 6 to the Education
Act 1993. Parliament has provided that the school is to be conducted in
accordance with the Articles of Government (section 55 (1) (b) ) and that the
Articles must include (Schedule 6, paragraph 3(2)) "provision as
arrangements-
(a).....
(b) for requiring the governing body or any persons authorised under the
articles to dismiss him to have regard to any representations made by him
before taking any decision to dismiss him, and
(c) for giving any member of the staff whom it has been decided to dismiss an
opportunity of appealing against that decision before any action is taken to
implement it."
2. The Articles of Government of this school, which were not mentioned in the
Extended Reasons of the tribunal, duly provided in Article 16 that
" (8) The Staff Committee shall have power to decide that the employment of any
person employed to work at the school should be terminated.
(9) Where the Staff Committee have so decided,the person concerned shall be
given an opportunity to appeal against their decision to the appeal committee
constituted in accordance with paragraph 14(2) of the Instrument of Government
for the school before any action is taken to implement it."
3. By clause 5 (f) (iii) of Mr Drage's service contract it was agreed that
"The procedure for dismissal or suspension of a Teacher shall be in accordance
with the disciplinary rules and procedures established by the Governing Body
for all members of the staff in accordance with the provisions of the Articles
of Government and are set out in the First and Second Schedules hereto."
There is nothing in the parts of those Schedules put in evidence which is
inconsistent with the statutory Articles. The natural meaning of the relevant
Articles is that, if there is an appeal to the Appeal Committee after the Staff
Committee has made a decision to dismiss, that decision is not implemented and
the dismissal does not actually take place before the appeal is decided.
4. That result is consistent with the common understanding and conduct of both
parties. Mr Drage was suspended from his duties by the head teacher on 25
January 1996 on full pay pending his attendance at a disciplinary hearing.Under
Article 16 (13) suspension is "without loss of emoluments." Mr Drage continued
to receive full pay down to the date of the dismissal of his appeal and his P45
was made up to that date. His pay was not stopped on 17 February. That action
of the employer is more consistent with Mr Drage's continuing suspension from
duty pending the result of his appeal, than with the termination of his
employment with immediate effect on 17 February. Further, the letter from the
Clerk to the Governors dated 13 March unambiguously confirmed to Mr Drage that
his employment with the school "will terminate on 13th March 1996." That was
the basis on which he stated in his IT1 presented on 11 June 1996 that the
dates of his employment were from " 6th April 1978 to 13th March 1996." In
their IT3 (box 5) the Governing Body confirmed that the dates of employment
given by the applicant were correct. In the grounds of resistance (paragraph 9
(iii)) they asserted that they had acted reasonably "in conducting two lengthy
hearings and thereafter imposing the sanction of summary dismissal."
5. The result is not inconsistent with any of the authorities cited to the
court. It is loyal to the approach expounded by Browne-Wilkinson J in
Chapman -v- Letheby & Christopher Ltd [1981] IRLR 440 at 442
that a letter relied on as notification of immediate termination of employment
should be construed in the way that an ordinary, reasonable employee in his
position would understand by the language of the letter and in the light of the
facts known to him at the date of receipt.
The decision of this court in J Sainsbury Ltd v Savage [1981] ICR 1 is
distinguishable on the ground that the terms of service in that case expressly
provided that, pending the decision of an appeal against dismissal, the
employee would be supended without pay, but if reinstated would receive full
back pay for the period of suspension. It is not surprising that both the EAT
and the Court of Appeal concluded in that case that the employee was dismissed
and his contract came to an end before the appeal against summary dismissal was
decided : pending appeal the complainant was, with immediate effect, deprived
of the right to work and the right to be paid, but with the prospect of
reinstatement, with retrospective effect, in the event of a successful
appeal.
The unreported decision of a two judge court of the Court of Appeal in
Cooke v Ministry of Defence (14 May 1984) , which I also think was
wrongly decided,can in any event be distinguished on the grounds that, when the
complainant was notified of the decision to dismiss him summarily and of his
right to appeal against that decision, he immediately ceased to be entitled to
work or to be paid, his National Insurance card was returned to him and he was
told that, if he wished, he could obtain other employment. The court held that
in those circumstances his employment was terminated with immediate effect,
even though his terms of service provided that the decision to dismiss would
not be implemented until the outcome of the appeal was known.
For these reasons and for the reasons given by Simon Brown LJ I would allow the
appeal, reverse the decisions of the EAT and the Employment Tribunal on lack
of jurisdiction and remit the matter to the Employment Tribunal to determine
Mr Drage's complaint of unfair dismissal on the basis that the effective date
of termination of his employment was 13 March 1996..
Order: Application Allowed with costs to be subject to detailed
assessment if they are not agreed. Matter recruited to Employment Tribunal for
determination of the appellant's substantive compliant.
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/75.html
