Drage v Greenford High School [1998] UKEAT 4_98_3107

EAT
Drage v Greenford High School
[1998] UKEAT 4_98_3107 · 1998-07-31

JUDGE LEVY QC :

With the consent of both parties, this appeal has been heard by a panel consisting of two members. The appeal is Mr Drage. At the heart of it are two points. First the determination of the date on which he was dismissed from his employment as a teacher at Greenford High School ["the School"]. Secondly IF he was dismissed on 17th February 1996, as the Industrial Tribunal found, was it reasonably practicable for him to commence proceedings in the Tribunal within three months of that date. A third point was argued, not taken below, that in any event the tribunal had no jurisdiction to consider the complaint made.It is common ground that the School is a Grant Maintained School, the constitution of which is governed by statute, and that Mr Drage had been at the School for about 18 years at the time of his dismissal and was part of the senior management team. In a complaint dated 6th June 1996, and received by the Industrial Tribunal on 11th June, Mr Drage stated as his dates of employment 6th April 1978 to 13th March 1996. The Governing Body of the School ["the Respondent"] put in their Notice of Appearance on 18th September 1996. In the box in which they were asked whether the dates of employment given by Mr Drage were correct they put a tick. They alleged that he had been dismissed for gross misconduct. Four days were set aside for the hearing of Mr Drage's complaint. On 2nd October 1997, the first day fixed for the hearing, Counsel who appeared before us on this Appeal both appeared at the Industrial Tribunal held at London (North).Mr Randell, Counsel for the Respondent, at the commencement of the hearing at the Tribunal, submitted that on a true appreciation of the facts, Mr Drage's employment terminated not as he had said in his IT1 and as the respondent had agreed, but on 17th February 1996. If that was so, the proceedings had not been commenced in time and he wished that the Tribunal to hear and determine the preliminary point that in the circumstances it did not have jurisdiction to hear Mr Drage's claim.Mr Basu, Counsel for Mr Drage, was given little notice before the commencement of the hearing before the Industrial Tribunal of the submission that Mr Randell was to make. Mr Randell told us that he had thought of it at 6 a.m. on the morning of the hearing. As appears from paragraph 8 of the Extended Reasons, the Tribunal gave short adjournments to Mr Basu to take instructions and to consider how best to deal with the preliminary point.They then proceeded to hear evidence. They read documents which were not in dispute and heard evidence from a representative of the firm of solicitors who had been instructed by Mr Drage by 17th February 1996 and thereafter had conduct of the matter on his behalf. They then heard submissions on that preliminary point.The facts do not seem to be substantially in dispute. The relevant contract of employment of Mr Drage is dated 3rd August 1994. Clause 1 provided in the contract expressions to which meanings were assigned by the appropriate Education Acts that those should, unless the context otherwise required have the same meaning as were assigned to them in those Acts. The terms and conditions applicable to Mr Drage's appointment pursuant to s. 1 of the Employment Protection (Consolidation) Act 1978 as amended were contained in Clause 5. Clause 5(f) dealt with termination of employment. Sub-clause (iii) of that clause provided:
"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 their staff in accordance with the provisions of the Articles of Government and are set out in the first schedule and second schedule."
Sub-clause (h) had a hearing "Disciplinary rules and grievance procedures". The clause read
"There as specified in the disciplinary rules and procedures established by the Governing Body of the school in accordance with the Articles of Government and are available on request."
The School had a document headed "A code of disciplinary procedure for Teachers". Clause 1 of this Code provides:
"The procedure where consideration is being given to the dismissal of a Teacher is laid down in the Articles of Government. The dismissal procedure will not normally need to be initiated until the following procedure has been exhausted."
Clause 3 commences:
"Disciplinary action may be contemplated on grounds of misconduct.

A complaint of gross misconduct may lead to consideration of dismissal."

Clause 4 has a heading "Procedure where complaints arise". Sub-clause (iv) includes the following:
"... In all cases of gross misconduct, the matter shall be referred to the statutory Staff Committee which shall comprise at least three Governors not previously involved in the matters. ...
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."Sub-clause (v) has a hearing "The Appeal Committee":
"The Teacher may appeal against the decision of the Staff Committee within 21 days of the Staff Committee hearing by serving a notice of appeal on the Clerk of the Governors who shall call a meeting of the statutory Appeal Committee which shall comprise of five Governors and which shall be chaired by the Chair or Vice-Chair of the Governors. ...
The Committee may ... (c) reject the appeal and confirm the penalty.The outcome of the appeal shall be confirmed to the Teacher in writing. S/he has the statutory right of appeal in the event of dismissal, or believed constructive dismissal to an Industrial Tribunal."Clause 6 of the Code is headed "Gross Misconduct" and includes these terms:
"Gross misconduct is any conduct, ... 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 allegation and, shall inform the Chair of the Staff Committee."
Clause 7 has a heading "Appeal Against Dismissal". This has four sub-clauses. The material parts read as follows:
"(i) Where a Teacher has been dismissed by the Committee of Governors, S/he may, within 14 days of the hearing at which the dismissal was decided give notice in writing to the Clerk of 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."

In the Extended Reasons, facts are found at paragraph 7.

(d) , (e) and (f):

"(d) Having had allegations made against him the Applicant was suspended by the Head Teacher and that decision was notified to him together with the nature of the allegations by a telephone conversation on 25 January 1996. By letter of 30 January 1996 addressed to the Applicant from the Head Teacher, the Respondent clearly stated the allegations which were to be made against him and to which he was subject at the disciplinary proceedings. [ The allegations are then set out. ] There can be no doubt that the most serious aspects were clearly a matter of gross misconduct which were to be before the disciplinary committee. It is clear that in the case of gross misconduct under the contractual disciplinary procedure this could result in summary dismissal. (e) The relevant disciplinary meeting - the Staffing Committee met and the Applicant appeared before it on 14 February 1996. The Staffing Committee considered their decision on 16 February 1996 and they communicated their decision by letter of 17 February 1996 which letter enclosed a copy of their decision. (f) The Applicant had instructed Messrs Harkavys solicitors in January 1996 to act for him in respect of these allegations. They appeared for him at the disciplinary hearing of the staffing committee and indeed they appeared for him at the appeal which was held in March 1996. Evidence given by Ms Morgan (at the time a trainee solicitor but subsequent to that date how admitted) showed that she was assisting the senior partner of that firm Mr Harkavy in advising the Applicant certainly before he received the letter of 30 January 1996 which set out the allegations against him. She also confirmed to the Tribunal that by the time they had received a copy of that letter and the clearly set out allegations they had also available to them a copy of the contractual provisions relating to the Applicant's employment and in particular the disciplinary procedure. They therefore had available to them all the relevant information to be able to advise the Applicant on the procedures and to be aware of the effect of the relevant procedures."
Although the Extended Reasons in paragraph (g) summarise the documents, we will do so in our own words. They are in different places in the trial bundle, but we have them in a convenient bundle.The letter following the Staffing Committee meeting on the Governing Body was dated 17th February 1996 and is signed by Mr R D Bellair, Chairman of the Staffing Committee of the Governing Body, it reads:

"Dear Mr Drage

Decision of the Staffing Committee

Enclosed is the statement of the Staffing Committee of the Governing Body recording its decision [ our emphasis ] following the disciplinary hearing to consider allegations made against you"The enclosed has two headings.

" Disciplinary hearing Greenford High School

Decision of the Staffing Committee in the disciplinary case against Mr Roy Drage -17th February 1996 "There follows six short paragraphs of text. The first, the penultimate and the last of which read as follows:
"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 14 days of this statement."Mr Drage did appeal. His appeal was heard by the Governing Body Appeals Panel on 6th March 1996. On 13th March 1996 the Clerk to the Governors sent to Mr Drage a letter, the substantive part of which reads:

"Decision of the 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 Staffing Committee of 17 February 1996."The document enclosed, as before had two heading in bold which read as follows:

" Disciplinary Hearing Greenford High School

Decision of the Appeals Panel in the appeal by 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.Further the Appeals Panel was unanimously of the view that Mr Drage's general conduct in his role as a senior member of the staff of the school did not enable the Panel to have confidence and trust in him and his continued employment in the school.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."That document was dated 12th March 1996.On 13th March the Clerk to the Governors wrote to Mr Drage in these terms:
"Following the decision of the Appeals 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."
It is apparent from the documents, extracts from which are set out in this judgment, that there are certain lacunae .

(i) the Tribunal said:

"(i) In respect of the appeal procedure and in particular the contractual documentation there is no provision in the contractual documentation that expressly provides that the Applicant's employment continues if dismissal has taken place until after the appeal has been heard. In this case if the appeal is successful the contractual documentation can only have the effect of reinstatement not of continuing the employment from the moment of alleged dismissal through the appeal and onwards."
In his submission to us both on 19th May and today, Mr Basu has submitted that the whole of the matters which were referred to in the Industrial Tribunal have to be viewed against the statutory background which governs the provision of a Grant Maintained School. To that submission, we will return in due course. It was not one, we understand, made before the Industrial Tribunal, but Mr Randell has very properly has not objected to Mr Basu making submissions on this point to us in this appeal.Paragraph 12 is a most significant paragraph in the Extended Reasons:12 ... The Tribunal have taken the unanimous view that it needs in this case to first look at the contractual documentation and then to look at the facts and circumstances including correspondence in this particular case. From contractual documentation, as set out in the findings of fact above, it is clear to the Tribunal that it states the relevant disciplinary procedures and appeal procedures and particularly provides for those procedures in gross misconduct situations such as apply in this case. The Tribunal is satisfied that in particular there was no contractual power for any continued suspension after a decision to dismiss and until appeal; there was no provision for an appeal unless a dismissal had taken place as distinct from being recommenced; and therefore the Tribunal are of the view that the contractual provisions clearly provided for a disciplinary hearing followed by an appeal hearing in gross misconduct cases only where a dismissal had taken place i.e. in a summary dismissal situation. When reviewing the correspondence the Tribunal are satisfied that the decision of the tribunal as issued on 17 February 1997 specifies summary dismissal. The Tribunal do not hold the view that the decision of the disciplinary hearing/Staffing Committee was other than a decision as to summary dismissal. It is not, in the Tribunal's view, a recommendation or a proposal but is a finite decision. That finite decision was appealed. An appeal was not available under the contractual procedures applicable in this case unless a finite decision had been made."Having rejected a further submission that a date stamp on the P45 was indicative of the date of termination of employment the conclusion reached by the Tribunal is set out in paragraph 14:
"14 The Tribunal have considered carefully the words that were used in the document that recorded the decision of the staffing committee. The Tribunal find that those words were clear and unequivocal and that a summary dismissal was the decision and not a proposal or recommendation and therefore find that the effective date of termination of employment must have been 17 February 1997."
In the light of the conclusion they had reached as to the date of termination of employment and having noted that Mr Drage had the benefit of legal advice, the Tribunal were satisfied that it had been reasonably practicable for Mr Drage to commence proceedings on 17th February 1997. As he had not done so, they concluded that the application was lodged out of time and they had no jurisdiction to hear Mr Drage's claim. Their decision was promulgated on 24th October 1997.From that decision Mr Drage appealed by Notice of Appeal dated 3rd December 1997. At the preliminary hearing of this appeal on 3rd April 1998, directions were given for there to be an inter partes hearing.We have had the benefit of full skeleton arguments from both Counsel and lengthy submissions during the hearing before us on 19th May and today.We should say that before leaving the decision of the Industrial Tribunal that it is clear from paragraph 9 of the Extended Reasons that many of the authorities which have been cited to us in the course of this appeal were also cited to them and they had the legal material before them from which they could properly reach the decision that they reached.We appreciate that because of the decision of the Industrial Tribunal, Mr Drage has not had the hearing which the complaint he wishes to make deserves and if this appeal does not succeed, the doors of a hearing before the Industrial Tribunal will be closed. We have been heartened to learn in this eventuality there are other legal avenues which will remain open to him. Arising from the circumstances of his dismissal, he can bring proceedings for breach of contract, if so advised against the School. Arising from the advice given by his solicitors on the date of determination, if so advised, another remedy may be open to him . We have to consider, like Sir John Donaldson giving the decision of the National Industrial Relations Court in Rogers v Bodfari (Transport) Ltd [1973] ICR 325 we would welcome Mr Drage's complaint being heard on the merits if this can be done. However, as in that case, we have to consider on a proper basis that whether the Industrial Tribunal was right in its decision as to the date of the termination of his employment. If they reached a decision which they were entitled to on the facts and the law, it was matter within their discretion as to whether it was reasonably practicable for the proceedings to have been commenced at that date. It may well be that another Industrial Tribunal could have reached a different decision, but if the decision was one which that tribunal, looking at the matter fairly could have reached, it is not one with which we are entitled to interfere.Mr Basu has reminded us that if there is any ambiguity in the documents, these must be construed in the Appellant's favour. He has taken us in some detail through the statutory history of the Education Acts relating to a Grant Maintained School and has submitted with persistence and force that the Respondent had not got the power to act as it did, if Mr Drage was dismissed, as the Respondent said he was on the conclusion of the first hearing. This point was not argued before the Industrial Tribunal.In answer to it, Mr Randell has referred us (as has Mr Basu) to the decision of Brooke J. in Regina v Secretary of State for Education ex parte Prior [1994] ICR 877 , where Brooke J. pointed out that if a body acts in breach of its powers, the procedure of judicial review is available to challenge the breach. It does not mean that those who are the subject of the abuse of such powers, Mr Randell submits, are entitled so to contend in the Industrial Tribunal. On this point we accept Mr Randell's submission. Thus it becomes unnecessary for us to consider in any detail the submissions that Mr Basu has made as to the alleged breaches of power by the Respondent.Counsel have referred us to the decision of Browne-Wilkinson J., as he then was, in Chapman v Letherby & Christopher Ltd [1981] IRLR 440 sitting at this Tribunal where the head note reads:
"Whether in a particular case a dismissal letter evinces an intention on the part of the employers to terminate the contract at once, wages being paid in lieu of proper notice, or an intention only to terminate the contact 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."
In the context of construction, Mr Basi has reminded us of the words of Stephenson LJ had in Stapp v Shaftesbury Society [1982] IRLR 326 :

"Any ambiguity must be construed against the employee."

We turn back to the letters sent to Mr Drage and the documents which accompanied them. Despite Mr Basu's determined submissions, we do not find that there is an ambiguity in the documents. In the covering letter dated 17th February 1997 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 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 17th February 1997, subject to the right to appeal.At the end of paragraph 15 of the Extended Reasons the Industrial Tribunal say:
"15 ... It is of note further to the Tribunal that the Applicant's solicitors were acting for him throughout this matter and certainly at the time of the receipt of the decision of the Staffing Committee and it must have been clear to them by use of the words clearly stated in that document of summary dismissal that that in itself meant an automatic termination of employment at that time."
The Industrial Tribunal had the benefit of hearing from the trainee solicitor who gave evidence for Mr Drage. Mr Basu has made submissions to us as to what the solicitor said to them. I think it is common ground that she said (although we have not got the Chairman's Notes of Evidence) that the firm was in some confusion. But if the firm was in some confusion, in our judgment, that must mean that at the least the solicitors should have been in the position to advise Mr Drage that there was a very good chance on a proper construction of the letters that a Court would determine that dismissal had taken place at that stage. That, however, is not for us to decide. What we have to decide is what that letter must have meant or whether the Tribunal were right in what they said as to the effect of that letter. In our judgment, given the material which they had before them, they were right.Reliance is placed by Mr Basu on what follows. It will be remembered that in the document dated 12th March 1996 accompanying the letter of 13th March 1996 the words are used that:
"Mr Drage's conduct was such that he should be dismissed from the school with immediate effect."
On receipt of that letter Mr Basu submitted that Mr Drage might have thought that he had been dismissed from 13th March. However, whatever the effect of the March documents it cannot have effected his mind or that of his solicitors when they had to consider the documents sent to Mr Drage on 17th February 1996. Finally of course, there is a letter from the Clerk to the Governors to Mr Drage which also said:

"... your employment with the school will terminate on 13 March"

But we suspect that on its true construction, this has more to do with the entitlement of Mr Drage to wages to that date than to when his employment actually ended so far as concerns the effective date of termination.We have had a number of additional authorities read to us including an unreported decision of the Court of Appeal in Cooke v Minstry of Defence (unreported) delivered on 14th May 1984 where Cumming-Bruce LJ considered a question which was not altogether dissimilar to that here. All cases of course depend upon their own facts, but the facts and the findings on that case very much, in our judgment, confirm that the approach of the Industrial Tribunal was right. In Cooke , the Court of Appeal referred to the Court of Appeal case in J Sainsbury Ltd v Savage [1981] ICR 1 in which Brightman LJ, as he then was, had considered a dismissal where the construction of the contract of employment had some features similar to those examined by the Industrial Tribunal and by us. He carefully examined the contract of employment and in that context considered the seven submissions made by Counsel for the Employee Appellant against dismissal. He concluded:
"... broadly, all the submissions lead up to this proposition, that the suspension of a contract of employment involves the continuation of the relationship of master and servant until the period of suspension has come to an end."
Brightman LJ went through the individual submissions seriatim but came to a contrary conclusion. Mr Basu has made strenuous efforts in this case to persuade that Mr Drage's relationship as employee continued till his period of suspension ended. As we have said, we would have welcomed the complaint of Mr Drage being heard on its merits, but in the circumstances of this case and on the material before it, we do not consider that the judgment of the Industrial Tribunal was wrong on this point.If we not refer to the other cases cited to us by Counsel, it is not out of any disrespect to Counsel, but we think that we have said sufficient to show why, in our judgment, this appeal must fail.

[Mr Basu applies for leave to appeal to the Court of Appeal]

JUDGE LEVY QC :

Though in Rogers , Sir John Donaldson indicated that leave to appeal if sought should be given, but the law on this subject has developed since the 1970's and is clearer than it then was. In the circumstances, we think it would be more appropriate that Mr Drage should seek his leave from the Court of Appeal than we should give it here and now.