MR R W PASS v WAKEFIELD INDEPENDENT SCHOOLS LIMITED [1999] UKEAT 385_99_0212

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 385_99_0212Case No Appeal No. EAT/385/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R W PASSAPPELLANTWAKEFIELD INDEPENDENT SCHOOLS LIMITEDRESPONDENT
Before
His Honour Judge D Pugsley Mrs T A Marsland Mr J A ScoullerDate 2 December 1999
[1]APPEARANCES For the Appellant MR ANDREW BURNS (of Counsel) Ms S Liburd Association of Teachers and Lecturers 7 Northumberland Street London WC2N 5DA For the Respondents MR L TAYLOR (Representative) The Nostell Centre Doncaster Road Wakefield WF4 1QD JUDGE DAVID PUGSLEY : This is a case which concerns the entitlement of schoolteachers to be paid for the school holiday after the end of the term. The grounds of appeal are in a skeleton argument by Counsel, Mr Burns. Leave was given for this matter to go before a full tribunal by His Honour Judge Wilkie QC. The background is very simple. The essential findings of fact are contained in paragraph 4 of the decision: "4 a) The applicant had commenced employment with the respondent on 1st September 1996 as a full-time Teacher in the Junior Department which was responsible for information technology throughout the applicant's school. The respondent is the proprietor of an independent school for male and female pupils between 4 and 16 years of age. b) The only express terms and conditions of employment to which the Tribunal was referred, were contained in a document, signed by the applicant and the Chairman of the Governors, on 17 September 1996 which appears at 13-15. c) The applicant was advised by the then Headmaster, Mr Wickstead on 20 April 1998, that he was to be redundant at the end of the summer term. This was as a result of pupils on the school's roll having fallen and was at the direction of School Governors. Mr Wickstead suggested to the applicant that as a result his employment would terminate on 31 August 1998. d) However, following a Governors' meeting which took place on 20 April 1998, which is minuted at A33, Mr Wickstead wrote to the applicant on 29 April 1998 (A18) instructing him that his employment with the school on Wednesday 15 July 1998. e) Correspondence between the applicant's representative and school appears at A16 and A19-24.[2]We now come to the nub of this issue. The document which purports to set out the contractual terms is as follows:
"Period of continuous employment stated on: 1st September 1996. … Salary: £14,000 p.a., Job description, including details of any particular responsibilities included in the above: Assistant Teacher, Full Time All staff are expected to carry out reasonable duties, as directed by the Headmaster. Place of employment [ there were in fact two schools ] … Sick pay entitlement … For the full-time teaching position, the usual periods of notice will apply. Namely: October 31st is the deadline for resignations for the end of the Autumn Term; February 28th (or 29th) is the deadline for resignations for the end of the Spring Term; May 31st is the deadline for resignations for the end of the Summer Term. Payment of salary will be up to December 31st, March 31 and August 31st respectively. For a part-time teaching position, a period of notice not less than 1 calendar month will be required, and salary will be paid up to the end of the period of employment."
[3]In his skeleton argument for the appellant, Mr Burns makes the point that the tribunal considered that clause relating to usual periods of notice at paragraph 4(f) of the decision. It found that the express term only related to the notice an employee had to give the school and not vice versa. It found that the appellant's employment was terminated on 15th July at the end of the term. The tribunal found that the implied obligation was for the employer to give reasonable notice and that this was one month.[4]The grounds of appeal are that simply the correct way is to imply a term which the parties, if acting reasonably, would probably have agreed if they had directed their minds to the problem. The case is put with a degree of force that this was a decision that is simply wrong in law. The applicant cites the case of Courtaulds Ltd v Sibson [1988] ICR 461 (CA) which was applied in the case of Atkinson v Governors of St Michael's School (EAT – unreported) .[5]One of the reasons we have tribunals is that we have from both sides of industry members who have wide experience of industrial relations. As it happens in this particular case, both members are school governors of state schools. I say that, because their knowledge has been expressly made clear to everybody. But I venture to suggest that in the classrooms of this country's schools, and probably at the gates of schools, the finding of this tribunal would be a matter of some surprise. Schools and schoolteacher have obvious difficulties. Whilst by the perspective of those not involved in education the holidays are incredibly long, those who actually teach would no doubt make the point that it is very difficult for them to take time off during a school term. School terms, give or take certain alterations between counties and between the public sector and the private sector, are in three terms and three half-term holidays. If the education of children geared to public examinations is not to be seriously distorted by custom and practice and by every dictate of common-sense, those running a school do not wish to receive notice at the end of a term and then have to find a candidate, possibly to take over a crucial A'Level set or a GCSE set at such short notice. There is an obvious need on the school's part to ensure that the recruiting is done at a time when they have a sufficient pool of candidates.[6]We have to say that we found certain parts of the tribunal decision somewhat surprising. After setting out the history the tribunal say at paragraph 8:
"It was argued by the applicant's Counsel that were that to be our conclusion there was clearly an obligation to give such notice as was reasonable in the circumstances and a natural inference to draw is that it was reasonable for the same period of notice to be required from the employer as was required from the employee. We have considered this contention carefully. Were we to imply such a term, we would have to be satisfied that there were grounds for such implication. Applying the usual tests, we have looked at whether some disinterested third party, standing by when these terms were entered into, would say "
Of course, the employer must be intended to give the same notice as the employee." We are not however satisfied that this is the case since we cannot conceive that it can have been the intention of the parties, or could be perceived as such, that the only circumstances in which the employer could give notice were circumstances where notice would expire at the end of the term. If was conceded by Counsel for the applicant that this could not apply in cases of summary dismissal for gross misconduct but he suggested that it would apply in other dismissal. We can conceive of circumstances where, through incapability and possible complaints from parents, it might be necessary to dispose of the services of a School Teacher before the end of a term without incurring the liability for payment until the end of term or indeed the date going beyond that date. We can also conceive of circumstances where redundancy is forced upon a school by result of closure during a term. Without express terms to indicate that under those circumstances contractual pay would be give to the end of term we do not see that such a liability could be implied since it would be to suggest that a payment was acknowledged, even in the circumstances where there were no funds from which to make the payment. We do not see that to imply such a term is necessary for the business efficacy of the contract. Neither, on the evidence that we heard, are we satisfied that it has been shown that there is a custom and practice to this effect within the education sector or, more particularly, the private education sector." The tribunal then go on to say in paragraph 9:
"Even were we to be wrong about that, and reasonable notice could properly be construed as the same period of notice required of the employee, we do not see upon what basis it can be suggested that this brings the date of termination of employment to a date later than the end of the Summer term in this case which was quite clearly 15 July 1998, namely the last day upon which the Teacher was required to work. For that matter, we cannot see that the reference to payment of salary is to be taken as meaning anything other than the circumstances of resignation at the end of term by the employee. We can see that for policy reasons it may be desirable to encourage teachers not to resign after a given date in the term which would make it impracticable to arrange a replacement for the following term and the quid pro quo for such an arrangement is payment to a date shortly before the new term begins. We can see no point in such an arrangement so far as dismissal is concerned and nor can we therefore see that applying the same tests it is possible to imply such an obligation upon the respondent."
[7]The tribunal then goes on to direct itself about those provisions in ss.97, 97(1)(a) and 145 of the Employment Rights Act 1996 which deal with the situation where statutory notice is not given and the tribunal then is required to aggregate the period of statutory notice for the purpose of seeing whether an applicant for either an unfair dismissal or redundancy payment has the requisite continuity of service.[8]I have had the privilege of sitting with a member who has sat at this tribunal since its inception and the other member has a wide experience of industrial life. We have all tried to see how paragraph 9 is relevant to this case. It has nothing to do with it. It deals with wholly different circumstances and we cannot understand how a tribunal could have regarded it as a relevant consideration in the context of this case.[9]In our considered view, the answer to this case is rather simple. If you look at the document that sets out or is said to set out the terms of the contract, it says:
"For a full-time teaching position, the usual periods of notice will apply. …" and then sets out, namely, the position so far as the resignation is concerned. We are told that that was the particulars of employment delivered pursuant to s.1 of the 1996 Act which requires employers to say the periods of notice. One either construes that as saying that the usual periods of notice will apply, is not a reference to statutory notice but as a matter for all the usual periods of notice should be construed as being the same as resignation and therefore the same right to payment; or in the alternative, one takes the view that one should look at the test laid down in the case of Courtaulds v Sibson [1988] ICR 461 (CA) : "… where it is essential to imply some term into the contract of employment as to place of work, the court … merely has to be satisfied that the implied term is one which the parties would probably have agreed if they were being reasonable: see also Howman & Son v Blyth [1983] ICR 416, 420, per Browne-Wilkinson J … It seems to me … that there is no alternative but for the tribunal or court to imply a term which the parties, if reasonable, would probably have agreed if they had directed their minds to the problem."
That was a dictum that was applied in the unreported EAT case of Atkinson v Governors of St Michael's School .[10]We are bound to say that we simply cannot accept as a matter of law the propositions adumbrated in the tribunal decision which try to meet the reciprocity argument at paragraph 8. If we may say so, it defies our understanding of the way in which contracts of employment are construed and made. It is difficult to see why the employee should be put at a worse position than an employer because the employer may not be able to fund a similar period of notice. Indeed, it is clear from what Mr Taylor said that he accepts that the statutory period of notice is normally considerably less than contractual notice, but even in the statutory period of notice the notice that the employee has to give is considerably less than the 12 weeks the employer may have to give. In our view, on any reasonable interpretation, reciprocity of notice should be implied into this contract and it is either covered by saying that the contract includes the giving of notice by the employer or the implying of that term. We are particularly concerned where the tribunal say, at the end of paragraph 8:
"Nether, on the evidence that we heard, are we satisfied that it has been shown that there is a custom and practice to this effect within the education sector or, more particularly, the private education sector."
The tribunal do not seem to have heeded the fact that one of their findings of fact was that the Head Master had in terms said that the contract would terminate on 31st August 1998. The change in attitude of the employer is capable of the interpretation that the alteration was due to the fact that it was appreciated that it might exclude the claimant's entitlement to bring a claim for unfair dismissal or perhaps more realistically a redundancy payment. That is not a finding made by the tribunal, it is not a finding open for us to make, but it is relevant, that evidence that was given was that the Head Master himself said the contract would end on 31st August.[11]This is one of those very rare cases where it is right that we reverse the decision of the tribunal. We find that there was a wrongful dismissal in that the applicant was not dismissed in the breach of his contract, and the breach of his contract was that notice should expire at the end of the school holiday in general terms, but in the particular facts of this case and having regard to the document we have seen, we think that that payment should only be made up to 31st August. The logic of what is being suggested by the respondents is that teachers would not get any holiday for which they were paid if it was open to an employer to dismiss a teacher. It is right that a case has been cited to us, an interesting case, the case of Sim v Rotherham Metropolitan Council [1986] IRLR 391 where the plaintiffs were refusing to provide cover as there was a pay dispute. Part of the head note reads where Scott J held:
"Although the plaintiffs' contracts were silent as to whether there is a contractual duty to provide cover when asked to do so, schoolteachers are members of a profession and a professional's contract of employment would not normally be expected to detail the professional obligations expected of the employee under the contract. The contractual obligations of persons employed in a professional capacity are defined largely by the nature of their profession and the obligations incumbent upon those who follow that profession. Teachers have a contractual obligation to discharge their professional obligations towards their pupils and their school. Thus the right approach to determining the ambit of teachers' contractual obligations is to ask whether the obligation in question is part of the professional obligations owed by a teacher to pupils or his or her school."
[12]We consider that reciprocity should apply. There are particular problems in education in disturbing education by a change in teaching. We consider it as a matter of public policy and as a matter of law, it is appropriate that a teacher should at least be entitled to be paid and given notice that will at the end of the expiry of the holiday succeeding the last term at that school. We therefore allow the appeal.[13]We consider that the case now has to go back to the tribunal. We think that it should be a differently constituted tribunal with a different Chairman and different members. There may be issues in view of the decision of Raspen v United New Shops Limited [1999] IRLR 9 as to whether or not in this breach of contract action of damages may reflect the loss that if he had been dismissed pursuant to his contractual rights then he would have been eligible for redundancy payment and to bring an action for unfair dismissal. We do hope that matters have not got so out of proportion that the parties on both sides do not appreciate that it always open to try and resolve issues as between themselves and to save the expense of resorting to litigation.