Mrs Joanne Murray v The Governing Body of Greenmount Primary School: 1801825/2020
EMPLOYMENT TRIBUNALS
Case No 1801825/2020
Between
Mr. Wiltshire, CounselClaimantMiss. Mellor, CounselRespondent
Before
Employment Judge WedderspoonMiss. Mellor (instructed by Counsel) for claimantMr. Wiltshire (instructed by Counsel) for respondentDate 1 October 2020
JUDGMENT
[1]By consent, Leeds City Council is dismissed as a Respondent from these proceedings.[2]The breach of contract claim is ill founded and is dismissed.[3]There is no order for costs.
REASONS
[1]By Claim Form dated 30 March 2020, the claimant brought a breach of contract claim against two Respondents; The Governing Body of Greenmount Primary School and Leeds City Council.[2]At the commencement of the hearing, it was agreed between the parties, that as, the respondent, The Governing Body of Greenmount Primary School is the legal employer and would satisfy any liability judgment, there was no issue between the Council and the remaining parties. In the circumstances, by consent, Leeds City Council was removed as a party pursuant to Schedule 1, Rule 34 (1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. Claim and Issues[3]The claimant pursued a wrongful dismissal claim.[4]The claimant’s case is that in breach of contract, the respondent failed to pay her appropriate notice to terminate her employment contract in accordance with the conditions of service for teachers in England and Wales “the burgundy book”.[5]The claimant’s employment was terminated on 31 January 2020 and the claimant received 4 weeks notice. Her claim is that she was not informed that she was covering maternity leave so that pursuant to the burgundy book terms she was in fact entitled to an extended notice period of two months notice.[6]The Respondent’s case is that the claimant was offered employment on a fixed term basis to cover maternity leave from 1 September 2019 to 31 August 2020 or in any event the purpose of the fixed term contract was for maternity cover. In the circumstances, the contract and the burgundy book terms permitted that only 4 weeks notice was required to terminate the contract.
The hearing
[7]The Tribunal heard evidence from the claimant and for the respondent, the Tribunal heard from Catherine Dyson, School Business Manager and Caroline Carr, the Headteacher of the respondent. There was an agreed bundle of documents of 99 pages and Mr. Wiltshire, for the respondent additionally provided extracts from the Burgundy Book. Facts[8]The claimant has been employed as a teacher since 2008. Prior to her employment with the respondent, she was employed at Templenewsam Halton Primary School. She worked there as a supply teacher from 2017 and was offered a post as cover for a member of staff who had gone on maternity leave. This was due to end in August 2019. The claimant aged over 50 years wanted to secure a permanent position.[9]The respondent is a community school with a delegated budget and pursuant to statute it has responsibility for staffing.[10]The Conditions of Service for School Teacher England Wales, Revised Edition August 2000; “the Burgundy Book” consists of nationally agreed terms and conditions incorporated into teachers’ contracts.[11]Section 3, paragraph 4 sets out notice periods for termination of contracts. It states “4. Period of Notice and termination of contract 4.1 All teachers shall be under a minimum of two months’ notice term and in the summer term three months’, terminating at the end of a school term as defined in paragraph 1 above… 4.4 The provisions of paragraphs 4.1…apply to the termination of a teacher’s contract for any reason other than gross misconduct, including dismissal for illhealth and redundancy.”[12]Section 2 of the Burgundy Book is a definition section. It states “1.1Teachers means all teachers (including head teachers) who work in schools or is centrally managed LEA services and who are renumerated either on a fulltime basis or a part-time basis, other than :…. (b)those employed on a temporary basis either for a period of one term or less or as substitutes for permanently appointed teachers absent for reasons such as secondment, prolonged illness or maternity. 1.3 Those teachers falling within category (b) of paragraph 1.1 above shall be covered by all sections of the document, except paragraph 4 of section 3 – unless there is no other stated notice provision within their contract..”[13]The Burgundy Book expressly excludes individuals on temporary contracts (save where there is no notice period stated in the contract) covering permanent teachers on maternity leave. There is no provision contained within the Burgundy Book requiring the school to expressly state the purpose of the temporary contract is for maternity cover.[14]Employee A advised the respondent in about May 2019 that she was pregnant. Her MATB1 form (page 63) dated 28 May 2019 and Leeds City Council MA1 form advised the school that she wanted her maternity leave to start on 2 September 2019 and that she definitely intended to return to work. Employee A was entitled to 12 months maternity leave.[15]Ms. Carr instructed Ms. Dyson to advertise the role as one year maternity cover and this advertisement was sent to the Council to advertise the post. On the form Ms. Dyson stated that the role was for “maternity cover – 31 August 2020” (page 64). The advert was placed through the Council’s business support centre.[16]The job was advertised unsuccessfully. The claimant had no knowledge of the post being advertised but conceded in evidence that the job might have been advertised. Due to the lack of success in recruitment, the respondent was under some pressure to recruit. Ms. Carr’s aunt worked with the claimant and suggested that she might be suitable.[17]A friend, Vicky Blyth, contacted the claimant and informed her that her sister in law, Caroline Carr wanted to offer the claimant a job at the school.[18]The claimant telephoned Ms. Carr the next day. Ms. Carr told the claimant about a vacancy at the school and thought the claimant would be perfect for the role. Ms. Carr told the claimant that the job was hers if she wanted it. She also stated that there would be an interview but it was a mere formality but required under the Council’s procedures. The claimant was invited in for a chat and to see the school.[19]The claimant attended the school that day and spoke to Ms. Carr about the post. There was a dispute of evidence as to what was actually said about the position. On the balance of probabilities, the Tribunal finds that Ms. Carr told the claimant that the job was on a fixed term contract for 12 months but there might be a possibility at the end of that period for a permanent post but Ms. Carr could not guarantee this. I accept the claimant’s evidence that she was looking for a permanent job and the possibility of a potential permanent post in the future was of significant interest to her. I find that Ms. Carr did not guarantee the claimant’s future permanent employment with the school, because she simply could not do so. The Tribunal also accept that Ms. Carr did not state it was standard procedure for all new appointees to be given a one year contract. The Tribunal finds this because both Ms. Carr and Ms. Dyson gave evidence that there was no such standard procedure at the school.[20]The claimant was given a tour of the school and shown where her classroom would be and met Melissa Berry who was leaving the school. The tribunal finds that this is the classroom the claimant would teach in; she was not taking on the class of Ms. Berry. The claimant did not know at the time of meeting Ms. Berry the reason why she was leaving the school. The claimant was told sometime later by a colleague, Sam Hubbard, that Ms. Berry was leaving because there was no job security within the school. The Tribunal accepts Ms. Dyson’s evidence that Ms. Berry was employed by the school until July 2019. She was covering another teacher who was on maternity leave. She described two NVT teachers (including Ms. Berry) were leaving the school and one teacher returning from maternity leave. She also stated that staff are shuffled to cover classes including a bulge year where there was a larger cohort of school children than usual. The Tribunal finds that when recruiting the respondent does not necessarily do a straight swap; it exercises its discretion to move staff into vacancies and recruit where the school finds there is a need. This is part of the professional development of staff. I do not find that the claimant was stepping into Ms. Berry’s shoes.[21]The claimant was also informed that there needed to be a lesson observation. This took place at Templenewsam. Lisa Dixon and Angela Lee from the respondent attended for this.[22]Ms. Carr requested the claimant to submit an application form to her. The claimant had a form completed for her job at Templenewsam so she sent this to Ms. Carr along with a supporting statement to include details of her work at Templenewsam.[23]The claimant was interviewed on 14 June 2020 by Ms. Carr, the head teacher; Angela Lee (Early Years Leader) and Afia Khattun, (Family Support worker and governor). At the interview the fact that the job vacancy was for a fixed term period of 12 months was repeated to the claimant. The claimant was not informed that the job was for maternity cover; the notes of the respective interviewers corroborate this. Mr. Khattun noted “1 year” in his interview notes. Angela Lee noted “one year cover”. The Tribunal rejects the suggestion that this was a reference to maternity cover for one year, but accepts the claimant’s contention that this reflected the claimant’s comments in interview about her recent work experience and Ms. Lee’s noted comments feature in the context of the claimant’s work history at St. Augustines, St. Mary’s and supply teaching at Templenewsam.[24]In the record of the interview notes of the headteacher, she noted “1 year FT (cover HM)”. Although the Tribunal finds that this was the headteacher’s intention (and the Tribunal rejects the claimant’s contention that this was fraudulently added later) she did not inform the claimant about this at the interview. The claimant accepts the interview notes do represent (save for this) the discussions during the interview. Only the notes of Ms. Carr mention cover for HM. The tribunal finds Ms. Carr did not inform the claimant of this fact in interview or at any time.[25]Ms. Dyson was responsible for organising the contracts at the school but Leeds City Council prepare the employment contracts. She was not involved in the interview or assessment of the claimant and she has no knowledge what the claimant was told about the role at the school.[26]However, the tribunal is satisfied from the evidence of the head, that the school’s intention was for the claimant to cover A’s maternity leave.[27]Ms. Dyson completed the safer recruitment form. There was a post it note on the form. Ms. Dyson did not recall being handed the post it note but stated that instructions from Ms. Carr did generally come in the form of post it notes. The post it note provided to Ms. Dyson in June 2019 following the claimant’s successful interview states “JM. Offer fixed term from 1.9.19-31.8.20 at M6. This will cover Employee A on mat leave.” The Tribunal finds that these were the instructions of the Headteacher; a contract from the Council for the claimant for a one year fixed term – to cover employee A’s maternity period and the claimant was to be paid on teacher’s pay scale M6 (main pay scale 6- the top of the main pay scale before passing through the threshold onto the upper pay spine). The tribunal rejects the claimant’s contention that this post it note is a fraud; the claimant’s evidence is that the post it note was placed on by Ms. Carr at a later stage to create a false impression; she relied upon the fact the post it note did not have curly edges. The Tribunal accepts Ms. Carr’s evidence that these were her instructions and Ms. Dyson confirms this is how instructions to her were given by the head. From her evidence it was clear that the claimant was suspicious because she was not directly told of the fact she was covering maternity cover.[28]Ms. Dyson liaised with the Council’s contracts team who produced a one year fixed term contract for the claimant. The contract did not state that it was to cover Employee A’s maternity cover. By letter dated 16 August 2019 the claimant was offered employment in accordance with the statement of terms and conditions of employment attached. The contract was clearly a fixed term contract; this is stated on the front page “Fixed Term Contract”. The claimant accepts that she signed a fixed term contract. This contract expressed it was a fixed term contract from 1 September 2019 to 31 August 2020. It expressly provided that for temporary and fixed term contracts the notice period was 4 weeks and specific reference was made to the conditions contained in the Burgundy Book.[29]The claimant’s evidence is that if she had been told that it was for maternity cover she would have rejected the offer because she wanted a permanent position. I find that the claimant did accept the fixed term role (although she did not know it was for maternity cover only) because she considered that it may lead to a permanent post but she knew on agreeing to accept the temporary post that a future permanent post was not guaranteed. The applicability of the burgundy book and any extended notice periods did not feature in the claimant’s decision to accept the role. She candidly stated in evidence that she was unaware of the implications of the burgundy book and any extension of notice until after her dismissal when she sought advice.[30]I find that had the claimant performed adequately the respondent may have considered her for a permanent position; the evidence heard is that there are changes in staffing year on year. I find that Ms. Carr did not guarantee the claimant a permanent post because she was not in a position to do so but certainly the claimant was given the impression that this fixed term role could lead to a permanent post.[31]The claimant was absent from school due to sickness after the Christmas holidays in the early part of January 2020. On the claimant’s return to work on 15 January 2020 the claimant was called into Miss. Carr’s office and informed she was to be dismissed. The claimant was concerned that this was because she had a period of sickness absence. Mr. Carr stated that this was not the reason. She said that she believed the claimant had levelled some of the children in reception class incorrectly.[32]The tribunal accepts the claimant’s evidence that this was a misunderstanding on the part of the claimant. The claimant was unfamiliar with the online assessment tracker. When the claimant submitted the data to the senior leadership team it was the first occasion she had inputted data onto it. The claimant was doing this without any training so that when two other colleagues instructed the claimant to lower the data, the claimant believed that this was the correct approach.[33]The claimant received a dismissal letter shortly afterwards and it stated that the reason for dismissal was that she had levelled some children incorrectly. The respondent paid the claimant four weeks notice. In correspondence between the school and the claimant’s trade union Ms. Carr stated on 20 January 2020 that the claimant’s fixed term contract was for maternity cover. This was the first time the claimant became aware of this fact. Submissions[34]Mr. Wiltshire on behalf of the respondent submitted that the exception contained within 1.1 (b) of the Burgundy Book applied to the claimant’s contract. He submitted that the claimant was employed temporarily as a substitute for a permanently appointed teacher on maternity leave. There was a notice period contained in the claimant’s contract so that additional notice provided for in the Burgundy Book does not apply in accordance with 1.3.[35]Mr. Wiltshire submitted that as a matter of fact and on the balance of probabilities the claimant was employed to cover maternity leave. He relied upon the advertisement of the role for maternity leave cover (p.64-5). He further relied upon on Employee A’s form stating that she wished to start her maternity leave on 2 September 2019 and her MATB1 form dated 28 May 2019. He also relied upon the Headteacher’s interview note (page 98) that referred to “1 year FT (cover HM)”. He also relied upon the post it note from the headteacher attached to the claimant’s contract (which Ms. Dyson saw) which indicated that the Claimant’s contract was for maternity cover. He submitted all this evidence establishes that the purpose of the claimant’s contract with the respondent was for maternity cover. Any suggestion by the claimant that these documents are fraudulent should be rejected. Further he submitted if Ms. Carr’s evidence is accepted the claimant was expressly informed the purpose of her contract was maternity cover.[36]However, in the alternative he submitted, even if the claimant was not expressly informed her contract was for maternity cover, the fact that the contract was for maternity cover means that the Burgundy Book is expressly excluded and the claimant’s contractual notice was 4 weeks. He submitted the Burgundy Book was a detailed and extensive document and there is no requirement contained within the book to require the respondent to expressly inform the claimant the purpose of her temporary contract.[37]Miss. Mellor on behalf of the claimant submitted that it is more likely than not that the claimant was not informed the purpose of the contract with the respondent was for maternity cover and in fact it was submitted it was not for such a purpose. Furthermore, there was a lot of movement in staffing at the respondent so although there may have been a vacancy for maternity cover recruitment was required for other roles.[38]Miss. Mellor stated a reasonable explanation for the note of Ms. Carr at the claimant’s interview with maternity leave in brackets is that maternity cover was simply not discussed with the claimant. No other interviewer noted maternity leave on the interview notes. The interview notes of A. Khattun at page 93 that states “Sept 1 year” supports the claimant’s case that maternity leave cover was not discussed. She also relied upon the evidence that she met Ms. Berry in the classroom she was going to teach in; Ms. Berry was leaving the respondent not another job; not for maternity leave. She submitted the statement of main terms and conditions at page 52 makes no reference at all to maternity leave. Ms. Dyson did not recall the post it note. On the balance of probabilities the claimant was not covering maternity leave of a permanent member of staff.[39]Miss. Mellor submitted that the respondent shuffled staff into vacancies so although there may have been a maternity vacancy the claimant was not recruited to undertake that role; had she been so the respondent would have expressly told her. Further she submitted the respondent can not put a clause into the contract (maternity cover) without informing the claimant. In the circumstances the claimant is entitled to notice provided for in accordance with the Burgundy Book.
Conclusions
[40]In my Judgment the claimant was employed on a fixed term contract. She was not informed by the school that the purpose of the contract was for maternity cover. The claimant accepted the contract because she was looking for a permanent job and she was given the impression by the school that there may be a possibility of a permanent job at the end of the contract but this was not guaranteed. Requirements for staffing may change over the academic year. The applicability of the burgundy book and any extended notice periods did not feature in the claimant’s decision to accept the role; she was unaware of the implications of the burgundy book and any extension of notice until after her dismissal when she sought advice.[41]On the balance of probabilities and in the context that staff can be shuffled around where vacancies arise and recruitment is based on need, the claimant was recruited with the intention to cover the maternity leave of employee A. The Tribunal finds as a fact that the claimant’s contract was for maternity leave cover.[42]The Burgundy Book is an extensive document and provides extended periods of notice in particular circumstances. However, where the temporary contract is for maternity leave cover of a permanent member of staff, extended periods of notice are expressly excluded. There is no provision or requirement within the extensive Burgundy Book actually requiring the employer to indicate to a prospective employee/employee that the purpose of the temporary contract is for maternity leave cover. It may be considered to be good industrial practise to do so but it is not required under the terms of the Burgundy Book.[43]In conclusion, in my Judgment, the fact that the temporary contract was for maternity leave cover means that the extended periods of notice under the burgundy book do not apply to the claimant and the respondent was entitled to terminate her contract with four weeks notice. Costs[44]At the end of the hearing following judgment, the respondent made an application for costs against the claimant pursuant to Rule 76 of Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 on the basis that the claimant’s case has no reasonable prospect of success. Mr. Wiltshire relied upon two cost warnings from the respondent and correspondence between the parties; page 66, 72 and 73 of the bundle. He submitted that from 20 January 2020 the claimant was aware of the respondent’s case. In any vent there was no requirement by the respondent to inform her that the contract was for maternity leave. Following disclosure of documents it was also clear that employee A was on maternity leave. The claimant should have been aware by then her claim was misconceived.[45]Miss. Mellor submitted that on the basis that the claimant was not informed that her contract was for maternity leave cover and an employee has a reasonable expectation to be so informed, her claim did have reasonable prospects of success. To meet the criteria of a cost order was a high test and the claimant was entitled to have her case heard.[46]Pursuant to Rule 76 of the Regulations, an award of costs is a discretionary matter for the Tribunal to determine taking account of the whole picture; Yerrakalva v Barnsley MBC (2012) ICR 420. Mrs. Justice Simler in the case of Haydar v Pennine Acute NHS Trust UKEAT/0141/17 provided very useful guidance to the Tribunal in approaching a cost application. At paragraph 39, Mrs. Justice Simler stated that a cost warning is not a precondition to an award for costs. At paragraph 25 she stated that a three step approach is required for the tribunal when considering a cost award. First whether the trigger has been met for a cost award such as whether the claim had no reasonable prospect of success. Simply because the costs jurisdiction is engaged does not mean that costs will automatically follow. At stage two, the tribunal must consider whether to exercise its discretion to make an award of costs. This discretion is broad and unfettered. The third stage of the approach, only arises if the Tribunal decides to exercise its discretion to make an award and involves the Tribunal assessing the amounts of costs to be awarded.[47]In my Judgment the claimant was not told that her fixed term contract was for the purpose of maternity leave cover. She was unaware of the respondent’s position until receipt of Ms. Carr’s email on 20 January 2020. In her evidence, the claimant was genuine but mistaken when she contended that the evidence relied upon by the respondent was fraudulent. However it is understandable that the claimant was highly suspicious because she had not been told this at the start of her employment or at any time throughout her employment; for her it was a matter for the Tribunal to determine as to whether the respondent did indeed recruit her to provide maternity cover. The tribunal has heard in evidence that staff are shuffled about. It was a surprise for the claimant to hear in January 2020 that she was indeed employed on a fixed term contract. Since establishing that documents are fraudulent is a matter which can be determined not only by perusing the documentation but hearing evidence, the tribunal does not find that the claimant had no reasonable prospect of winning her case from the start or upon disclosure of the documentary material.[48]Alternatively, even if the respondent establishes that the claimant had no reasonable prospect of success, the tribunal finds that it would not be appropriate to award costs. Unfortunately, the respondent did not inform the claimant she was recruited for maternity cover. The claimant was genuinely very suspicious that this was the case and reasonably required a determination by the tribunal about this matter upon hearing evidence at trial.[49]There will be no order as to costs.