MR A RYAN v (1) BLACKBURN WITH DARWEN BOROUGH COUNCIL (2) THE GOVERNORS OF DARWEN VALE HIGH SCHOOL [2004] UKEAT 0928_03_3009

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0928_03_3009Case No Appeal No. UKEAT/0928/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A RYANAPPELLANT(1) BLACKBURN WITH DARWEN BOROUGH COUNCIL (2) THE GOVERNORS OF DARWEN VALE HIGH SCHOOLRESPONDENTS
Before
His Honour Judge McMullenDate 30 September 2004
[1]APPEARANCES For the Appellant MISS A PROOPS (of Counsel) Instructed by: Messrs Reynolds Porter Chamberlain Solicitors Chichester House 278/282 High Holborn London WC1V 7HA For the Respondents MR G WONG (of Counsel) Instructed by: Blackburn with Darwen Borough Council Legal & Admin Services Town Hall Blackburn BB1 7DY SUMMARY Contract of Employment A local authority which engaged a teacher subject to a condition subsequent of satisfactory police checks was entitled to bring the contract to an end forthwith when the checks were unsatisfactory. HIS HONOUR JUDGE McMULLEN QC This case concerns the construction of the contract of employment of a teacher, whose employment was made subject to satisfactory police checks, when those checks proved to be unsatisfactory. The judgment represents the views of all three members who pre-read the relevant papers and reserved judgment on the hearing date due to shortage of court time. We will refer to the parties as Applicant and the Respondents as the Council and the School. Introduction[2]It is an appeal by the Applicant in those proceedings against a decision of an Employment Tribunal sitting at Manchester, Chairman Mr M E Coles, registered with Extended Reasons on 16 July 2003. The Applicant was represented by an officer of NASUWT and the Respondent by a solicitor. On appeal the parties were represented respectively by Ms Anya Proops and Mr Garreth Wong, both of Counsel.[3]The Applicant made claims of wrongful dismissal, breach of contract and unlawful deductions from wages. The Respondents denied breach of contract, relying on a condition in the contract. The Tribunal upheld certain minor parts of the Applicant's claims awarding him £477.83 for breach of the statutory minimum period of notice (1 week) and £68.25 in respect of one day's pay. It rejected the major part of his claim for wrongful dismissal based upon a failure to allow him to make representations prior to his dismissal, and dismissal before the end of the spring term. The Applicant appealed against those latter decisions.[4]Directions sending this to a full hearing were given by me, including a direction pursuant to English v Emery Reimbold & Strick Ltd [2003] IRLR 710 (CA) inviting the Chairman to give any reasons relevant to the Applicant's ground of appeal which related to the Applicant's claimed entitlement to rely on the provisions of the Schools Standards and Framework Act 1998 ("the representations claim") and the extended notice period provided for in clause 4.1 of the Burgundy Book ("the notice claim"). The Burgundy Book contains the national conditions for school teachers in England and Wales, as negotiated by the National Employers Organisation for School Teachers. It is a collective agreement.[5]The Chairman has helpfully provided comments in relation to this request for which we are very grateful, but it has to be said that both sides acknowledge that the Chairman appears to have gone further than the EAT's directions. The Facts[6]The Tribunal made the following findings of fact:
"5. The applicant was subsequently offered and accepted a temporary teaching post at Darwen Vale High School. Although the letters written to the applicant were done so on behalf of the governing body of the school, as is normal, from a contractual point of view these were sent on behalf of the first respondent with whom the contract would be formed. 6. In a letter dated 10 July 2002, the following paragraphs appears: - "
This offer of appointment is subject to you meeting the requirements of the Education (Teachers) Regulations with regard to your medical fitness and Qualified Teacher Status and the outcome of Police checks on any criminal record disclosure." 7. In a letter dated [18] September 2002, the following paragraph appears: - "As this post offers substantial unsupervised access to children of all ages, your employment is subject to satisfactory police clearance. Your employment is also subject to satisfactory medical clearance that is done internally through school." 8. The contract was a fixed-term full-time contract to run from 1 September 2002 to 31 August 2003 and the Tribunal was satisfied that the contract, once it had been concluded, would have contained the normal terms and conditions of employment enjoyed by the teaching profession, including those relating to notice. 9. However, the Tribunal was also satisfied that the paragraphs referred to above meant that there was a condition present to the formation of that contract, namely the receipt by the first respondent of a satisfactory clearance certificate from the Criminal Records Bureau."[7]We will exercise our power to correct the date in paragraph 7 above to 18 September 2002.[8]The Tribunal went on to note that it was common for there to be delays in the receipt of reports from the CRB. The Tribunal also noted that the statutory framework for the employment of school teachers is that the first Respondent, a local education authority, concludes the contractual relationship with any given teacher on behalf of the second Respondent who are the Governors of Darwen Dale High School in Lancashire.[9]It is not in dispute that a reasonable local authority could regard the report from the CRB as unsatisfactory. The report was dated 13 October 2002 and is disputed as to its accuracy. The Applicant was suspended. A meeting took place on 5 November 2002. The Applicant explained that he had made disclosures relating to the substance of the CRB report to both his previous and current headteachers.[10]On 18 November 2002 the Council terminated the Applicant's employment. The Tribunal held that the Applicant was not entitled to the operation of two aspects said to be included in his contract of employment, for the offer was subject to a condition precedent - police clearance - which was not fulfilled. He was, however, entitled to statutory notice under section 86 (1) of the Employment Rights Act 1996 , i.e. one week's wages. He was paid up to 19 November 2002 but the termination was effected on 20 November 2002 and so he was entitled to one day's wages then.[11]It dismissed his other two claims. These were first for payment of a minimum of two months' notice terminating at the end of a school term, pursuant to paragraph 4.1 of the Burgundy Book. The Tribunal did not determine the Applicant's claim to be entitled to make representations pursuant to schedule 16 to the 1998 Act.[12]In his comments, the Chairman reported that the Tribunal had decided that by reason of the condition relating to satisfactory CRB clearance, the provisions in the Burgundy Book and the 1998 Act could not be incorporated impliedly into the contract of employment. Until that condition had been fulfilled, the Applicant was employed under a "bare" contract of employment which was not subject to those provisions.[13]Schedule 16 to the 1998 Act takes effect by virtue of section 54. So far as is relevant for the appeal, dismissal of a teacher is affected by paragraph 25 which provides as follows:
"25. (1) Where the governing body determine that any person employed by the local education authority to work at the school should cease to work there, they shall notify the authority in writing of their determination and the reasons for it. (2) If the person concerned is employed to work solely at the school (and he does not resign), the authority shall, before the end of the period of 14 days beginning with the date on which the notification under sub-paragraph (1) is given, either - (a) give him such notice terminating his contract of employment with the authority as is required under that contract, or (b) terminate that contract without notice if the circumstances are such that they are entitled to do so by reason of his conduct."
[14]That power is qualified, however, by paragraph 27 which places an obligation upon a governing body:
"27. (1) The governing body shall - (a) make arrangements for giving any person in respect of whom they propose to make a determination under paragraph 25 (1) an opportunity of making representations as to the action they propose to take (including, if he so wishes, oral representations to such person or persons as the governing body may appoint for the purpose), and (b) have regard to any representations made by him. (2) The governing body shall also make arrangements for giving any person in respect of whom they have made a determination under paragraph 25 (1) an opportunity of appealing against it before they notify the local education authority of the determination."
The Applicant's case[15]On behalf of the Applicant, Miss Proops criticised the failure by the Employment Tribunal to give adequate reasons, in particular to decide on the representations claim. It was contended, citing Abigail Smith v Kent County Council [2004] EWHC 412 that the terms of the Burgundy Book can be incorporated into a teacher's contract of employment. It was contended that even if not expressly referred to, there was implied incorporation by reason of custom and practice or to give business efficacy to the contract.[16]As to the 1998 Act, it was contended that paragraphs 25 and 27 of Schedule 16 created a contractual entitlement to procedural safeguards set out therein. The Applicant was employed pursuant to the offer letter of 10 July 2002, he commenced work on 1 September 2002 and on 18 September 2002 he was engaged pursuant to terms set out in a statutory statement. Although it does not say so, this appears to be the Council's compliance with its obligation to issue such a statement, pursuant to Part I of the Employment Rights Act 1996 . The statement includes an express reference to the Burgundy Book which provides for the period of notice set out above. In any event, notice is expressly provided for by clause 15 of the statement. By reason of these provisions the Applicant was entitled to notice or payment in lieu to the end of the spring term 2003.[17]It was contended that the Tribunal had failed to provide adequate reasons for not upholding the Applicant's representations claim under the 1998 Act. The Chairman exceeded his power as directed by the EAT in giving his comments and they should not be relied on on appeal. The Respondents' case[18]On behalf of the Respondents it was contended that it was not open to the Applicant to make complaint about the way in which the Chairman had responded since that type of complaint could be made following the appearance of the Order where liberty was given to apply to vary or discharge any part of it. There was no express incorporation of the 1998 Act provisions relating to representations. The incorporation of the Burgundy Book was express.[19]It was accepted on behalf of the Respondents that the Applicant was entitled to the operation of the contractual provisions and of the Burgundy Book in respect of matters not relating to CRB reports. The contract was subject to a condition subsequent ; since the condition of satisfactory police clearance never came into effect, the contract could be discharged forthwith.[20]Whatever the effect of the representation claim under the 1998 Act, it too was subject to the conditions subsequent. In any event, it was not accepted by the Respondents that the 1998 Act provided contractual rights, irrespective of rights in public law which it might provide. Conclusions[21]In our judgment the Respondents' submissions are correct. A condition subsequent is described in Chitty on Contracts, 29 th Edition, Volume 1, paragraph 12-030 as follows:
"The obligation of one or both parties may be made subject to a condition that it is to be immediately binding, but if certain facts are ascertained to exist or upon the occurrence or non-occurrence of some further event, then either the contract is to cease to bind or one or both parties are to have the right to avoid the contract or bring it to an end."
The authority for this proposition is Total Gas Marketing Ltd v ARCO British Ltd [1998] 2 Lloyds Rep 209.[22]The Applicant accepted employment with the Respondents on terms which were expressly subject to satisfactory clearance by the CRB. Not only was that said in both of the introductory letters, but also in the statement of particulars sent to him on 18 September 2002, for the Applicant acknowledges that the position is exempt from the provisions of the Rehabilitation of Offenders Act 1974 and disclosure of all criminal records is a condition of this contract. He does not have a criminal record.[23]The reference by the Chairman in his supplementary comments to there being a "bare" contract cannot be sustained. The Applicant was employed subject to all of the provisions relevant to the engagement of a teacher, for as long as the event specified in the contract did not occur, i.e. unless and until an unsatisfactory CRB report was given.[24]Often contracts are subject to a condition precedent, and the parties could have made an agreement subject to the CRB condition and for the Applicant not to start work until a satisfactory CRB report was given. But the Tribunal acknowledged that there were difficulties at this time in obtaining such CRB reports quickly. A practical solution commended itself to both parties, i.e. that the Applicant should start work but that the contract would be subject to the condition.[25]Since the Applicant had made a disclosure to the headteacher about the matter which subsequently became the substance of the CRB report, it was obviously felt that it was not inappropriate for him to be working as a teacher in the light of that information. What changed was the Respondents' view of this matter once it received the CRB report.[26]In our judgment, the Respondents were then entitled to bring the contract to an end. The Respondent sent a letter on 18 November terminating the contract with effect from 19 November. The ET held that the effective date of termination was 20 November, and that the Appellant was entitled to a week's notice. An opportunity to make representations was given and representations were made. Although the Tribunal has made no determination on this matter, it would seem by parity of reasoning that if the Applicant were entitled by contract to make representations under Schedule 16, that too would be dependent upon the non-occurrence of the event specified in the condition subsequent.[27]It follows that it is not necessary for us to make a decision about whether or not Schedule 16 protection was incorporated into this contract. There is no reasoning by the Tribunal on this subject. There is no reference in the statement of particulars of the Applicant's contract to this statute, although there is reference to other statutes, to the Burgundy Book and to other provisions providing sources for the Applicant's rights.[28]It is not clear that the schedule imposes contractual obligations, as opposed to obligations enforceable in public law on a local education authority and on a board of governors. On this rather tentative basis there appears to be support for Mr Wong's proposition that the protection in Schedule 16 does not apply as a matter of contract, but we prefer to express no more than a tentative view on that subject.[29]Thus, applying the judgment in Abigail Smith and construing the notice provision in clause 15 of the statement of particulars, the Applicant was indeed entitled to the longer periods of notice set out in them. He was not engaged on a "bare" contract which excluded these rights: on the contrary, he had his full rights as a teacher for as long as the CRB did not report unsatisfactorily. Once that happened the Respondents were entitled to bring the contract to an end. The Respondents do not appeal against the finding that nevertheless the Applicant was entitled to the minimum statutory notice under the Employment Rights Act 1996 , but that sheds no light on the two other entitlements claimed by the Applicant, i.e. the notice claim and the representations claim.[30]Although we have held that the Tribunal has wrongly labelled the condition as a condition precedent rather than a condition subsequent, and the Chairman has in his comments gone rather wider than he was invited by the EAT to do, and has formulated the concept of a "bare" contract, we hold that looking at the decision and Extended Reasons in their original form, the decision is unarguably right and thus will stand: Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 (CA).[31]We would like to thank both Counsel for their constructive submissions. The appeal is dismissed.