Miss H Pearce v The Cornwall Council: 1400236/2018
JUDGMENT
The judgment of the tribunal is that the claimant’s unfair dismissal claim against The Cornwall Council is hereby dismissed.REASONS
[1]This is the judgment following a preliminary hearing to determine whether the claimant’s claims have been properly brought against this respondent.[2]I have heard from the claimant, and I have heard from Mr Bax on behalf of the respondent. The following factual background is clear from the oral submissions and documentary evidence to which I have been referred for the purposes only of the preliminary issue to be determined today, and after listening to the factual and legal submissions made by and on behalf of the respective parties. It is important to note that this hearing did not hear evidence in order to address the fairness or otherwise of the dismissal or the procedure which led to it.[3]The respondent is a local education authority. The claimant was employed at the St Maddern’s Church of England Primary School near Penzance ("the School") as its Head Teacher from 1 April 2003 until her dismissal on 23 October 2017. The School is a Voluntary Aided School. As is to be expected it has a Governing Body. The claimant’s written statement of the terms of her employment made it clear that her employer was the Governing Body of the School. The claimant’s dismissal was by reason of gross misconduct following allegations of inappropriate restraint of pupils and safeguarding issues.[4]The process which led to the claimant’s dismissal was in summary as follows. The claimant was suspended on 28 June 2017. There was a Police investigation between 5 July 2017 and 8 September 2017. The disciplinary process was resumed on 14 August 2017. There was a disciplinary hearing which was heard by a panel of independent Governors (said to be on behalf of the Governing Body of the School) on 17 October 2017. Dr Ham then signed a letter said to be on behalf of The Governing Body of the School which had the effect of dismissing the claimant summarily by letter dated 23 October 2017.[5]The claimant asserts that The Cornwall Council was instrumental in appointing a socalled independent panel of Governors (without the knowledge and approval of the Governing Body which supported her), and which dismissed her. She asserts that the respondent controlled the process which resulted in her dismissal despite objections fron the Governing Body which supported her.[6]The Governing Body then all resigned, save for the new Chair. On 11 December 2017 the Secretary of State approved and appointed an Interim Executive Board ("IEB") for the School. This replaced the previous Governing Body of the School, and assumed the responsibilities and liabilities for that previous Governing Body. There was no break in this process and no closure of the School. There was always a Governing Body in place, which became the IEB.[7]The claimant first made contact with ACAS under the Early Conciliation procedure on 5 December 2017 (Day A), and the ACAS EC Certificate was issued on 5 January 2018 (Day B). The claimant issued these proceedings within time on 17 January 2018. The proceedings were for unfair dismissal and “arrears of pay”. The claimant clarified today that there is no separate monetary claim over and above her unfair dismissal claim.[8]The claimant named one respondent to these proceedings, namely Cornwall County Council, which has changed this its previous name, and which should more correctly have been named as The Cornwall Council. The respondent filed its response to this claim on 20 February 2017. It denied from the outset that it was the correct respondent to these proceedings because it has never been the claimant’s employer, and asserts that this Tribunal does not have jurisdiction to hear this claim against it and that it should be dismissed from these proceedings. This is the judgment following the preliminary hearing to determine that matter.[9]Having established the above facts, I now apply the law.[10]The School is a Voluntary Aided School as defined in section 26 of the Education Act 2006. Both before and after the appointment of the IEB on 11 December 2017 the respondent delegated the school budget to the School and as such did not have any powers rights or liabilities for staffing. These passed from the previous Governing Body to the IEB.[11]Section 36(2) of the Education Act 2006 relates to the staffing of voluntary aided schools amongst others and provides that (except as may be provided by regulations): "Any teacher or other member of staff who is appointed to work under a contract of employment at a school, to which this section applies, is to be employed by the Governing Body of the School."[12]In addition, the effect of Part 3 of the School Staffing (England) Regulations 2009 is that the Governing Body of a Voluntary Aided School is confirmed as the employer of the relevant staff.[13]In addition, to the extent that it would otherwise be necessary (which it is not), the position is also duplicated by the Education (Modification of Enactments Relating to Employment) (England) Order 2003 ("the 2003 Modification Order”). With regard to the claimant's unfair dismissal claim, the 2003 Modification Order would apply (and modify any potential respondent so that the Governing Body became the correct respondent) because the School has the right to a delegated budget. However, the 2003 Modification Order is otiose because the Governing Body is the employer in any event by virtue of Section 36(2) of the Education Act 2006 and Part 3 of the School Staffing (England) Regulations 2009. In other words there is no need to rely on the 2003 Modification Order to modify the correct respondent to be that of the Governing Body, because the Governing Body was always the employer of the claimant and the correct respondent.[14]In conclusion therefore the correct respondent to the claimant's unfair dismissal claim is the Governing Body. On 11 December 2017 the IEB was appointed to replace the Governing Body, and from that date it assumed the responsibilities of the Governing Body and became the correct respondent to these claims which were issued after that date.[15]The IEB is therefore the correct respondent to these claims, and The Cornwall Council is therefore the wrong respondent to these claims. Accordingly the claimant’s claim as against The Cornwall Council are hereby dismissed.