Pavi v Hereford & Worcester County Council [1999] UKEAT 672_97_1003

EAT
Pavi v Hereford & Worcester County Council
[1999] UKEAT 672_97_1003 · 1999-03-10
MR JUSTICE HOLLAND : Mrs Pavi is a school teacher and until taking early retirement on 31 August 1995, she was in normal full-time employment with the Hereford and Worcester County Council, teaching at the Minster School, Leominster.On 5 September 1995 she returned to work at that school, this time on a temporary part-time basis. The express period for the employment was until May 1996 and at that stage she was required to work at some 41 per cent of the time allotted to the full-time teacher. There was a subsequent period of time in which the allotment was altered to 68 per cent, but that is no more than a matter of history.On 18 April 1996 she received a letter that has importance in this case. It had already been foreshadowed by a letter of 22 March 1996, which had indicated that there was a desire to extend the period of her contract to 19 July 1996, that is to the last working day of the Summer term. Turning to the crucial letter, the important passages are as follows. First it opens:
"I am pleased to confirm the offer of a temporary appointment at Leominster, The Minster College in the capacity of a teacher on point 9 of the pay spine for qualified teachers for 0.19 each week for the period 1st June to 19th June 1996."
There then follows paragraphs setting out the terms on which the offer is made, each paragraph having a heading. Thus the letter starts with a paragraph relating to the "Reason for Employment" with the next paragraph relating to "Salary". That latter paragraph concludes:
"Due to the temporary nature of this contract the normal contractual conditions relating to salary payments do not apply. You will therefore be paid salary for the period shown above but not for holiday periods outside those dates."
The next paragraph has the heading "Termination" and it reads:
"This temporary need is expected to end on 19th July 1996 and your employment will, therefore, cease on that day. You should take this as formal notice that your employment will end on that date. Should the temporary need end earlier than the date noted above, or if you wish to terminate the contract before the date shown, then either side may terminate the contract following a period of seven calendar days' notice. You should note that this is a variation to teachers' normal conditions of employment."
There are then ensuing paragraphs relating to Pension, Continuous Employment, Medical, Conditions of Employment, Variation of Contract and then it concludes under the heading "Acceptance":
"Will you please confirm your acceptance of this appointment under the terms described above by returning the enclosed slip. Failure to complete and return this immediately can result in a delay in the payment of salary."
In the event Mrs Pavi did confirm her acceptance of that appointment under the terms so described, with the result that she taught at the school for the appropriate period of time until the end of the working term, that is until 19 July. She then left the employment of the County Council and it remains to add that she was paid up to that date, seemingly appropriately.By way of an IT1 dated 26 September 1996 she made a complaint to the Industrial Tribunal. The complaint was in these terms:
"1. Whether the Applicant is entitled to equal pay.
2. Whether the Applicant is the victim of indirect sex discrimination.3. Breach of contract."Those complaints came for adjudication before an Industrial Tribunal held at Birmingham on 14 and 15 April 1997. In the result that Tribunal dismissed all such complaints. There is now an appeal by Mrs Pavi against that dismissal to this Tribunal.It is apparent that the principal matter of contention is the third of her complaints, namely breach of contract and, in order to understand the way in which her case is put, it is necessary first of all to turn to what is described as "The Burgundy Book", that is, the conditions of service for teachers in Primary and Secondary schools. It is common ground between the parties that this is a point of reference with respect to the contracts of teachers in general and any contract of Mrs Pavi in particular.Dealing with the terms that are material to this matter, they are as follows. First, Condition 4.1 serves to define "Teachers" for the purposes of the remaining conditions:
"4.1 'Teachers' means all qualified teachers (including head teachers) remunerated either on a full-time basis or on a part-time basis, other than: (a) ... (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."
The balance of Condition 4 sets out the significance of those categories.

(b) the provision is as follows:

"4.1.2. Those teachers falling within category (b) of 4.1 above shall be covered by all sections of the document, except:
5.3 - unless there is no other stated notice provision within their contract,8 - unless the dismissal is on the grounds of conduct or capability, and9.2."The essential contention of Mrs Pavi with respect to breach of contract reflects the terms of Condition 5.1. That reads in full as follows:
"5.1 Provisions should be made that the salary will be payable in accordance with the terms of the Burnham Report, by monthly instalments and that the teacher should receive not less than one-third of a year's salary for each full term's service in any school maintained by a local education authority. For the purpose of these arrangements the three terms in each year shall be constituted as follows:
the Summer term from May 1 to August 31;the Autumn term from September 1 to December 31;

the Spring term from January 1 to April 30."

What then is the argument advanced on behalf of Mrs Pavi? It is as follows. In terms of attendance and teaching she did, it is contended, provide a "full term's service" for the Summer term 1996. Throughout the working term, that is, throughout so much of the term during which the school functioned as such with pupils present, she gave the services in accordance with the contract evidenced by the letter of 18 April. That letter provided for her giving those services to 19 July, that is, to the last day of that working term.It is thus argued that the contemplation of the parties achieved by way of the agreement between them was that she should provide a service for the Summer term. Turn then, runs the argument, to Condition 5.1 and that should be taken to mean that a term for the purposes of attendance terminating on 19 July, should for the purposes of payment be regarded as a term which ends on 31 August. Thus it is, she submits, that the contract that she entered into required payment, not just to 19 July, but to 31 August, that is to the end of term as defined by Condition 5. Given that she has not been paid for that period between 19 July and 31 August there then is the breach of contract that she identifies and the relief that she seeks is an order for payment of the salary that should have been enjoyed for that extra period.It is convenient for this Tribunal itself to deal with that argument before looking at the way in which the Industrial Tribunal approached it. This Tribunal rejects that argument. It rejects it for the following reasons.First, 5.1 does not say terms that the working period of a term, that is the period to 19 July is to be construed for paid purposes as a term to 31 August. We find that it says what it means. The Summer term is the period from 1 May to 31 August. It is not any shorter period. Thus, turning back to entitlement for pay, the question arises as to whether she provided "a full term's service". Since she was not in employment after 19 July the short answer is, "no she did not". She was not in service for the full period of the Summer term, that is from 1 May to 31 August.That state of affairs arises because of the very clear terms of the letter of 19 April already cited in this judgment, terms which are plainly designed to ensure that Mrs Pavi was not entitled to work for the full term and thus not entitled, by reference to Condition 5, to payment for such. We draw attention to the very specific way in which she is told that the need for her ends on 19 July and that her employment ceases on that day. We point further, as an aid to this approach, to the warning in the preceding paragraph of the impact of that provision upon her entitlement to salary.It is to be observed as an aid to the construction of this part of the Burgundy book that had she been employed as on a full-time basis then there would have been a different result. The different result would arise because on a full-time basis she would have had the benefit of Condition 5.3. This reads:
"5.3.1. All teachers shall be under two months' notice, and in the Summer term three months', terminating at the end of a school term as defined in 5.1 above."
Given that provision, were she employed on a full-time basis there could be no notice terminating her employment on 19 July. By way of that condition, any notice terminating her employment would have had to have been by reference to the end of a term, and in the case of the Summer term 1996 would have had to have been as at 31 August 1996.Turn then back to 5.1 and it will be apparent that in those circumstances, even though her last effective working day might have been 19 July, nonetheless she would be providing service for a full term as defined by 5.1, that is to 31 August and in those circumstances she would undoubtedly have been entitled to payment to the latter date. By contrast we have the position specifically set up and agreed to by her, that is the position that emerges from the letter of 18 April 1996.We are now in a position to look at the approach of the Industrial Tribunal. This we have delayed because for some reason, not entirely clear to us, the Extended Reasons have no reference at all to that crucial letter or its terms. We are told by Mr Spratt, who appeared at the hearing, that the fact of the letter was introduced in evidence and we can only assume that he made submissions about it, since it is the foundation of his case. All that said, for whatever reason, it is not referred to by the Tribunal. However, turning to the way in which the Tribunal dealt with the argument on the material that was before it, it said as follows:
"5. Taking these factors into account, the tribunal conclude that the applicant was not entitled to pay up until the end of August, as she had not undertaken a full term's service. She may well have done virtually all the work she could have been required to do during the whole of the Summer term, but she was not under a contract of service and was not in service with the Authority later than 19th July. Her service only went until 19th July. It follows therefore that the respondents were not obliged by their contract to pay her for any period of time after that date."
It will be apparent that reliance on the letter of 18 April does not lead us to any different conclusion and it will be apparent that dealing with that first issue, this appeal must be dismissed.There is a second point taken and it relates to the first of the complaints, namely as to whether the Applicant was entitled to equal pay. In the details of the complaint that were served with the IT1, that is dealt with in paragraph ix in these terms:
"ix. The term of the Applicant's contract relating to pay is less favourable than in Mr Morris' contract in that Mr Morris received one third of a year's salary for each term's work including the Summer Term of 1996. By contrast the Applicant was not paid one third of a year's salary for the Summer Term of 1996 having only been paid up until 19 July as opposed to 31 August."
The Mr Morris referred to was a teacher in the Modern Languages Department at the school and the holder of a full-time permanent contract. It seems to be common ground that in terms of duties, presumably teaching duties, his work provided a fair comparison to the work of Mrs Pavi.The case is that there was inequality in pay as between Mrs Pavi and Mr Morris, such inequality as to give rise to grounds of complaint by reference to the Equal Pay Act. In the judgment of this Tribunal the matter is really resolved by the letter of 14 April 1996 and by our findings on the first issue. As we analyse the position it is as follows.As to 19 July 1996 there was no inequality between Mrs Pavi and Mr Morris, save that arising from the reduced hours of her employment, that is, save as to a matter that does not bear upon equality of treatment. After 19 July 1996 she was no longer in employment and he was. There was therefore, from that point onwards no comparison to be made between the two. The matter is essentially resolved thus far by the contractual findings that we have already made. This view of the matter was one also taken by the Industrial Tribunal in paragraph 6:
"6. The second part of the applicant's case also fails. The applicant admitted pro rata she was paid the same as her comparator, a Mr Morris. However, Mr Morris kept on receiving his salary up until the end of August, whereas the applicant received none in respect of any period after 19th July. It follows therefore that if the applicant was not entitled to any pay for any period after 19th July, then her claim fails because she was in fact already receiving equal pay with Mr Morris, albeit on a pro rata basis. Her claim in respect of this item therefore fails as a result of the tribunal's decision in the first part of the case."
In the course of argument before us Mr Clayton for Mrs Pavi has sought, as we understood it, to widen the issue. Essentially the point he is raising is this, that the inequality prima facie to be perceived here is reflected in the fact that Mrs Pavi was on these less advantageous terms whilst her male comparator, Mr Morris was on the different terms. In particular, it arises because Mrs Pavi was having her employment terminated, not at the end of the term, but on 19 July whereas Mr Morris was able to enjoy pay to the end of the term. Again, had Mr Morris received notice, that notice would have by necessity to have been to 31 August.So much for what Mr Clayton now raises. What we notice is that this case simply was not raised before the Industrial Tribunal and certainly was not addressed in terms of preparation, in terms of evidence, or in terms of finding, and whatever the merits of the point we find ourselves quite unable to give consideration to it; quite unable to take a view that, for example, the matter should be sent back for findings to be made to deal with those sort of issues. Whether or not they may arise in another case, they certainly, looking at the IT1 and the associated documentation, did not arise in this case.Thus it is, dealing with the second ground on which this appeal is mounted, that is with respect to inequality of treatment, this appeal also must be dismissed.We would conclude by thanking both Mr Clayton and Mr Spratt for their assistance.