Appeal No.	 EAT/47/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 March 1998

Before
THE HONOURABLE MR JUSTICE BELL
MR D J JENKINS MBE
MRS R A VICKERS

MRS M BARKER	APPELLANT

GOVERNORS OF OCKBROOK SCHOOL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	

	MR JUSTICE BELL:     This is an ex-parte preliminary hearing in respect of the Appellant Mrs Barker’s appeal against the decision of an Industrial Tribunal held at Nottingham on 4 September 1997.  

	Mrs Barker was employed by the Respondent School Governors as a teacher of Religious Education at Ockbrook School.  She began work there in September 1988.  She took early retirement at the end of the summer term last year.

	On 11 June 1997 Mrs Barker presented an Originating Application complaining of unfair constructive dismissal.  In particular, she complained that the Respondent Governors committed a fundamental breach of her contract of employment by reducing the number of her teaching periods per week for the upcoming academic year 1997 to 1998.  The reduction was due in part to falling demand for Religious Education at the school, but also to the appointment of a Deputy Head who was a qualified Religious Education teacher and who - the Governors decided - should contribute three Religious Education teaching periods a week.  The Governors denied that they had dismissed Mrs Barker, contending that there was no fundamental breach entitling her to treat her contract as ended by them.

	The Industrial Tribunal correctly, in our view, directed itself as to the law relating to constructive dismissal, as opposed to termination by mutual consent freely given, and it reminded itself of the test in Section 95 (1) (c) of the Act.  The facts were decided, perfectly legitimately, on written statements of Mrs Barker and the Headmistress, Miss Bolland.  The Industrial Tribunal found the following facts:

“The parties had a written contract of employment.  It was signed by the applicant on 28 November 1988.  It has not been varied.  Clauses 7 & 8 deal with duties and hours of work.  Clause 7 provides that the duties involved in the teaching post were organisation and teaching of Religious Education throughout the school.  The post was part-time.  Clause 8 provides that the hours of work are such as might be reasonably required by the employer and teachers were expected to give of their services to meet the needs of the school.
Before the beginning of each academic year the applicant was allocated hours for the following year.  In the year 1992/93, she was allocated 30 periods; in the following year it was 32; the year after it dropped to 25.  We have no statistics for the year 1995/96 but in the year 1996/97 it remained at 25.
The new deputy head was appointed in February 1997 and was to take up her appointment in the summer term of this year [we interpose that that meant 1997]  The governors had decided that she should have input into the school’s RE [Religious Education] teaching.  The consequences of that and dwindling demand for Religious Education appears to have been communicated to the applicant at the beginning of May because she wrote on 7 May asking the headmistress to put in writing her teaching allocation for the following year.  Miss Bolland did that in her letter of 12 May and the effect was to reduce the number of periods to 16.  The number of periods impacts upon the applicant’s pay because it is calculated as a fraction expressed by the number of periods allocated over 40.  
By letter dated 19 May the applicant indicated her intention to seek early retirement at the end of that term.  The substantial paragraph of that letter dwells upon the consequences of a dwindling annual salary upon her pension entitlement.  Her logic is well expressed in that paragraph.  In the last paragraph she refers also to a change in the school policy which she says has brought about that situation, one which would adversely affect her income for the rest of her life.  The change of policy there referred to was the removal of teaching periods by the substitution in respect of three of the deputy head.  In 1994 the school had intended to introduce one of the governors as a teacher of 2 periods.  The applicant had successfully resisted that, through the good offices of her teachers’ association.
The applicant secured the consent of the governors to early retirement which was communicated to her by a letter from the headteacher on 21 May.  She completed the usual forms, submitted them and in due course retired.”

	The Industrial Tribunal then said, correctly in our judgment, that the first question was whether the Respondent had, on those facts, committed a fundamental breach of contract.  It decided, contrary to the Appellant Mrs Barker’s contention, that her contract did not give her an exclusive right to teach Religious Education, but merely specified teaching duties throughout the school in the sense of “at all levels”.  In fact, Mrs Barker has provided a copy of the terms and conditions of employment.  Paragraph 7 is headed “Duties”.  It has paragraphs referring to the sharing of supervision duties and carrying out other duties in addition to teaching responsibilities and then the second half of Clause 7 reads:

“The duties involved in this teaching post are as follows:  Organisation and teaching of Religious Education throughout the school; the post is a part-time one.”

	We have carefully considered the actual terms of the contract and the Industrial Tribunal’s view of it and our view is that the Industrial Tribunal reached the correct interpretation of Clause 7.  It did not mean that Mrs Barker was to be the teacher of Religious Education throughout the school in the sense of being the only person who was to teach Religious Education in the school.  We believe it meant, as the Industrial Tribunal held, that her teaching duties were to encompass all levels, or at least that she might be called upon to teach Religious Education at all levels.  At its very lowest we cannot say that the Industrial Tribunal’s interpretation of Clause 7 was wrong.

	The Industrial Tribunal decided that Clause 8 of the contract of employment gave the Respondent the right to vary the Appellant’s hours to meet the needs of the school.  Clause 8 is headed “Hours of Work”.  It is quite short.  It reads:

“The hours of work are such as may be reasonably required by the employer and teachers are expected to give of their services to meet the needs of the school.”

	The Industrial Tribunal said about that:

“That is what the respondent has done in this case.  There is nothing in the contract which guarantees a set number of hours to the applicant.  The respondent is not obliged to provide a set number of hours.  The way in which the contract has been performed demonstrates the hours have to some extent dwindled over the last five years.  In those circumstances, we cannot see that the respondent has breached Clause 8 so as to give rise to a claim of constructive dismissal.  Such a claim is dependent by law upon there being a breach of a fundamental term of the contract.  In its absence, the applicant is left with the fact that she brought the contract to an end by deciding to accept, albeit for perfectly sound commercial reasons, early retirement.”

	That decision was entered in the register on 6 October 1997 and Mrs Barker now appeals against it.  Her grounds of appeal supported by a very clear skeleton argument make two essential points.  Firstly, and we quote from the Notice of Appeal:

“The industrial tribunal failed accurately to construe the term ‘the needs of the school’ in the contract’.  The right of her employers to vary the appellant’s hours depended on a change in the school’s needs, but in the instant case there was clearly the same need as before for the lessons taken from the appellant and given to the deputy head to be taught.”

	That ground clearly bears on the true construction of Clause 8 which we have read.  It seems to us that if anything the Industrial Tribunal’s construction of that Clause was more favourable than it need have been to Mrs Barker.  The Clause did not say that the right to vary her hours depended on a change in the school’s needs.  It seems to us that the Clause had really two separate parts.  The first part gave the school employer the right to demand of the Appellant, Mrs Barker, such hours of work as it might reasonably require of her.  The second part, the requirement to meet the needs of the school by giving their services, was one which was imposed on the teachers, including the Appellant, and we cannot see anything in Clause 8 or elsewhere in the contract which restricted the school’s right to vary hours to a situation where there had been a change in the school’s needs.  In any event, the school’s needs would vary according to its staffing arrangements as well as the demand for teaching of a particular subject in the curriculum and there is nothing that we can see in the contract restricting the school’s right to employ another teacher to share the teaching of Religious Education, or, once it had appointed another teacher, to allocate some of the teaching of Religious Education to that other teacher.

	The second essential point raised on the appeal is expressed as follows in the Notice of Appeal and we quote again:

“Furthermore, or in the alternative, the industrial tribunal was guilty of perversity in failing to appreciate the significance of its own finding at paragraph 9 of its decision.”

	Paragraph 9 of the Tribunal’s decision was the one which related to the appointment of the Deputy Head and the effect of that appointment in reducing Mrs Bolland’s hours.  The ground of appeal continued:

“(a)  At that paragraph, the industrial tribunal finds that the school appointed a new deputy head in February 1997 with the intention that she teach RE.
(b)  That appointment was made without any consultation with the appellant, who had responsibility for the organization of the subject throughout the school.  Its implications for the appellant’s future hours of employment were obvious, hence her realisation that her days at the school were numbered and that she had no alternative but to go.
(c)  The Industrial Tribunal’s failure to appreciate the self-evident implications of its own finding at paragraph 9 is manifestly perverse.”

	We are afraid that we cannot accept that submission.  It begs the question of what Clause 7 of the Appellant Mrs Barker’s contract meant, with which we have already dealt.  We do not accept that the necessary implication of the Industrial Tribunal’s finding at paragraph 9 was that the Appellant’s days at the school were numbered.  It meant that she was going to or likely to teach for less hours, but we cannot see the logical step from saying that to saying that her days at the school were numbered.  That was entirely a matter for her to make her own decision.  Mrs Barker made her own decision on what appeared to be the soundest financial grounds in the light of her reduced hours.

	All this leads us to the inevitable conclusion that there is no arguable point of law raised by Mrs Barker’s appeal.  The Industrial Tribunal, in our view, reached conclusions which it was entitled to reach on the evidence before it, and it reached an ultimate decision which it was entitled to reach.  That means Mrs Barker, that your appeal must be dismissed at this preliminary stage.