Corp v Essex County Council [1997] UKEAT 823_96_1006

EAT
Corp v Essex County Council
[1997] UKEAT 823_96_1006 · 1997-06-10

JUDGE HULL QC:

This is our decision on a preliminary point. Mr Corp appeals to us from a decision of the Industrial Tribunal. The Tribunal sat with its Chairman alone on 26 April 1996 at Stratford, to try a preliminary issue on Mr Corp's complaint of unfair dismissal, a claim for redundancy pay, claims for breaches of contract and other matters, made to the Industrial Tribunal.Mr Corp, who appeared in person, was first employed some time ago by the Essex County Council as a Schoolmaster. He said in his application that his employment, for present purposes, began on 1 January 1990. (We will not go into all the details but it appears that perhaps it began later than that.) He said that it ended on 31 August 1995. The question was, whether he was a supply teacher and self-employed at the material times, or whether he was, in reality, an employee of the local education authority.Upon that matter the learned Chairman, representing the Tribunal, reached a conclusion which is the subject of the appeal to us.Mr Corp, who, as I say, did not have the benefit of advice from solicitors and Counsel, made the Essex County Council the Respondent to his application. The County Council was represented before the Industrial Tribunal and the hearing proceeded on 26 April.On this appeal it has recently come to the attention of the local authority, who have made representations to us on the subject, that in fact these proceedings were, to say the least of it, irregular. The reason is that the school concerned, Woodlands School at Basildon, is a school which has a governing body with a delegated budget. That has important consequences arising from the Education Reform Act 1988 and an Order made under that, with regard to the proper parties when matters are brought before the Industrial Tribunal. I will not go through the provisions at length, but I must refer to them in the hope of being helpful first of all to the parties and secondly to the learned Chairman.Under Section 33(1) of the Education Reform Act 1988 it is said:
"It shall be the duty of every local education authority to prepare a scheme in accordance with this chapter and submit it for the approval of the Secretary of State in accordance with s.34 of this Act. (2) The scheme shall provide for:
. .........(b) the delegation by the authority of the management of a school's budget share for any year to the governing body of the school where such delegation is required or permitted by or under the scheme"Section 36(2) provides in such cases where there is regulation by a scheme:
"Subject to s.37(4) ......... in the case of any county or voluntary school maintained by the authority in respect of which financial delegation is required for any financial year under the scheme it shall be the duty of the authority to put at the disposal of the governing body of the school in respect of that year a sum equal to the school's budget share for that year to be spent for the purposes of the school."
The next section we would refer to is Section 44. This section applies to a county, controlled or special agreement school at any time when it has a delegated budget. Sub-section (3) provides:
"Subject to the following provisions of this section— (a) the appointment, suspension and dismissal of staff at a school to which this section for the time being applies and the determination of their duties, grading and remuneration; and (b) the application in relation to such staff of— (i) any disciplinary rules and procedures; and
(ii) any procedures for affording to them opportunities for seeking redress of any grievances relating to their employment;

shall be subject to Schedule 3 to this Act."

Section 46 provides:
"(2) Subject to subsection (3) below, it shall be for the governing body of any such school to determine— (a) whether any payment should be made by the local education authority concerned in respect of the dismissal, or for the purpose of securing the resignation, of any member of the staff of the school; and (b) the amount of any such payment.
(3) ...........

(4) The local education authority concerned—

(a) shall take such steps as may be required for giving effect to any determination of the governing body of any such school under subsection (2) above; and(b) shall not make, or agree to make, any payment to which that subsection applies in respect of the dismissal, or for the purpose of securing the resignation, of any member of the staff of any such school otherwise than in accordance with any such determination."So that this is a substantial delegation of the local education authorities' powers to the governing bodies of such schools.Section 222 gives power to the Secretary of State to make modifications in any enactment relating to employment, and in particular, any enactment conferring powers or imposing duties on employers, conferring rights on employees, or otherwise regulating the relations between employers and employees, as he considers necessary or expedient, in consequence of the operation of any of the provisions of this Act mentioned in sub-section (2); and the statutory provisions to which we have referred are included in that.One has to look at Schedule 3 to see the provisions with regard to appointment and dismissal of school staff during financial delegation. Schedule 3 makes various provisions and in particular it is provided in paragraph 2 of Schedule 3:
"(1) Subject to sub-paragraph (2) below, sub-paragraphs (4) to (11) below apply in relation to any appointment to fill a vacancy in any teaching post ...."
and there are other provisions which apply to dismissal: under paragraph 6 of Schedule 3:
"(1) The regulation of conduct and discipline in relation to the staff of any school to which section 44 of this Act for the time being applies, and any procedures for affording to members of the staff opportunities for seeking redress of any grievances relating to their employment, shall be under the control of the governing body."
Suspension (under paragraph 7) is to be under the control of the governing body; and regarding dismissal (under paragraph 8):
"(1) Where the governing body of any school to which section 44 of this Act for the time being applies determine— (a) that any person employed to work at the school should cease to work there; or (b) that the clerk to the governing body should be dismissed;
they shall notify the local education authority concerned in writing of their determination and the reasons for it."Then the local education authority takes various steps to implement the decision.So those provisions are clearly a massive delegation of the powers previously belonging to the local education authority to the governing body of the school.The Secretary of State thought it necessary, pursuant to his powers that I have referred to, to make what is entitled "The Education (Modification of Enactments Relating to Employment) Order 1989" pursuant to Section 222 of the Act. The Order relates to schools which have governing bodies with delegated budgets under the Sections I have referred to, and Article 3 is the substantive provision:
"(1) In their application to governing bodies with delegated budgets, the enactments set out in the Schedule hereto shall have effect as if— (a) any reference (however expressed) to an employer, ...... or a principal included a reference to the governing body acting in the exercise of their employment powers and as if that governing body had at all material times been such an employer, person or principal;"
As we understand that, that means not that the governing body is the employer but that it shall be treated as if it is.As to dismissals, Article 4 of the Order says:
"Without prejudice to the generality of article 3, where an employee employed at a school or institution with a governing body with a delegated budget is dismissed by the local education authority following notification of such a determination as is mentioned in article 3(1)(d) above— (a) section 53 of the Employment Protection (Consolidation) Act 1978 shall have effect as if the governing body had dismissed him and as if references to the employer's reasons for dismissing the employee were references to the reasons for which the governing body made their determination; and (b) Part V of the Employment Protection (Consolidation) Act 1978 shall have effect in relation to the dismissal as if the governing body had dismissed him,...."
So it is all a matter of deeming but nonetheless that is what has happened. How is this to be worked out? Article 6 says as follows:

"Applications to Industrial Tribunals

6.—(1) Without prejudice to anything in articles 3 and 4 and notwithstanding any provision in the Employment Protection (Consolidation) Act 1978 or in any regulations made under section 128 of that Act, this article applies in respect of any application to an industrial tribunal, and any proceedings pursuant to such an application, in relation to which by virtue of article 3 or 4 the governing body is to be treated as if it were an employer, ....... or a principal.(2) The application shall be made, and the proceedings shall be carried on, against that governing body."Notwithstanding that, any order made by the Industrial Tribunal, except insofar as it requires reinstatement or re-engagement, shall have effect as if made against the local education authority. Paragraph (4) of Article 6 provides:
"Where any application is made against a governing body pursuant to paragraph (2)— (a) the governing body shall notify the local education authority within 14 days of receiving notification thereof; and (b) the local education authority shall, on written application to the industrial tribunal, be entitled to be made an additional party to the proceedings and to take part in the proceedings accordingly."
When one looks at the schedule to see which provisions of the 1978 Act (which was the Act which then applied) are to be treated as Article 3 requires, we see that they include Part V (which is the part of the Act which relates to unfair dismissal) but not Part VI relating to redundancy payments, which was part of the claim here. The Applicant, and he is hardly to be criticised for this (although he is a schoolmaster he was not of course familiar with all the legal provisions) entirely overlooked the provisions of this Order; so did the Local Education Authority which appeared, as I say, by Counsel; the Chairman was not told of this Order; and as a result, the proceedings were carried on in a way which Parliament has said they are not to be carried on.It is not our job to criticise the Local Education Authority but clearly they should have been aware of the Order and the provisions of the statute. They now very properly, having become aware of them, invite our attention to them, and we have no alternative to paying attention to what the Order says and what the Act says.What is the effect of all this muddle and the oversights which have occurred? First of all we do not think that the proceedings are a nullity. It is true that they have been brought without regard for the provisions of the Order but the Local Education Authority, which is entitled to be joined, if it is notified and wishes to be joined, was indeed a party. They are the employers. Furthermore, part of the claim is probably not caught, because of the provisions I have pointed out; Part VI of the Act 1978 is not the subject of the Order, so parts of the proceedings, at any rate, are entitled to be regarded as regular as it appears to us, though we have not heard argument on this point. The proceedings are not a nullity but they are irregular. It may be of course that the Governing Body, if joined, would have wished to advance precisely the arguments which have been so far advanced by the Local Education Authority. It may very well be that the Governing Body would wish to make common cause and would, after considering their position, say:
"we have no evidence which we wish to call which the Local Education Authority does not wish to call; we have no submissions to make which are not to be made by the Local Education Authority; we have proposed to take no separate part and being joined here, and having notified the Local Education Authority, we wish, in effect, to make common cause at all points"
. We do not know that that is so. Parliament has said that the governing body are to be responsible for these matters. It may well be that there are submissions that they would make or evidence which they would wish to call, not only on the preliminary point, but on the merits of the case, which would be quite different from those of the Local Education Authority. We cannot say. What we can say is that it is in our view essential, now that we are aware of the statutory provisions, that the governing body should be joined in accordance with what Parliament and the Secretary of State have required.We think that the best way to produce a just result is not to treat the proceedings as a nullity or to dismiss them as being irregular, but to exercise one of the powers which we think the Industrial Tribunal itself would undoubtedly have; that is to say, to add a necessary party and not to treat the proceedings as altogether void or a nullity, and therefore we exercise the power of the Industrial Tribunal to add the Governing Body of the School as a Respondent to the application. That does not mean, of course, that we can proceed today. The Industrial Tribunal has not concluded its consideration of this case in our view, for it has not heard a party who was entitled to be joined and indeed whom the Applicant was bound to join if he followed the provisions of the Order.We therefore remit the case to the Industrial Tribunal. We think it right to allow the Industrial Tribunal an unfettered discretion as to what it should do next. One obvious course which the Chairman might decide to follow would be to re-open the application made to review and having heard all parties, represented as they wished to be represented, adducing such evidence as they wished to adduce; then to reconsider the decision which he has already reached. We are not going to indicate other courses which the Industrial Tribunal might wish to take. What is imperative, it seems to us, is that the Industrial Tribunal should not rule on the preliminary point or on any other parts of the case without hearing the Governing Body, and if the Local Education Authority wishes to be heard, of course also the Local Education Authority if they wish to make separate submissions.Therefore that is the course which we propose to take. We do not think at the moment that there are any other orders which we should make. If it is considered necessary to apply to us in this matter again, then that may be done, but we hope that is not necessary and that the Industrial Tribunal through its Chairman, or sitting with its Members, can make all necessary orders in this case to correct what is only an irregularity and not a fatal irregularity, but would be fatal if the Governing Body were not heard.