MS J JACKSON v WIGAN METROPOLITAN BOROUGH COUNCIL [2007] UKEAT 0393_06_2802

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0393_06_2802Case No Appeal No. UKEAT/0393/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS J JACKSONAPPELLANTWIGAN METROPOLITAN BOROUGH COUNCILRESPONDENT
Before
His Honour Judge McMullenDate 28 February 2007
[1]APPEARANCES For the Appellant MR PAUL DRAYCOTT (of Counsel) Instructed by: Messrs Thompsons Solicitors Acresfield 8 Exchange Street Manchester M2 7HA For the Respondent MS HELEN MULHOLLAND (of Counsel) Instructed by: Messrs Forbes Solicitors Rutherford House 4 Wellington Street (St John's) Blackburn BB1 8DD SUMMARY Unfair Dismissal The Employment Tribunal failed to consider statutory guidance for the dismissal of a teaching assistant. The case would be remitted for re-hearing on this point to the same Employment Tribunal. HIS HONOUR JUDGE McMULLEN QC This case is about unfair dismissal and Employment Tribunal procedure in the giving of reasons. The judgment represents the views of all three members. We will refer to the parties as the Claimant and the Respondents, unless it is necessary to distinguish the Council from the School. Introduction[2]It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal sitting over two days at Manchester, Chairman Mr P J Russell, registered with reasons on 10 May 2006. The Claimant and Respondents were represented respectively by Mr Paul Draycott and Ms Helen Mulholland of Counsel.[3]The Claimant claimed unfair and wrongful dismissal. The Respondents contended they dismissed her fairly for a substantial reason, that is that she had got a job at another school and her contract was coming to an end. The issues[4]The essential issue for the Employment Tribunal to decide was the reason for dismissal and whether it was fair. It decided against the Claimant on both her claims. The Claimant appeals against the judgment on unfair dismissal. Directions sending this appeal to a preliminary hearing were given in chambers by Burton J and at that preliminary hearing by HHJ Pugsley and Members. The appeal in respect of the wrongful dismissal claim was withdrawn.[5]It is common ground that the first finding by the Tribunal is an error, but it does not affect its judgment so we will use our powers of correction to show that the Claimant was employed by the Council, which is the body which holds her contract, but she was engaged by the School. The legislation[6]The Tribunal directed itself by reference to the Employment Rights Act 1996 but not to amendments and adaptations of the legislation to fit the education framework, which is contained in the Education Act 2002 and guidance on staffing matters issued pursuant to ss35 and 36. This statutory guidance is required to be followed by governors and it represents a continuation in less rigorous form of requirements set out in the School Standards and Framework Act 1998 which had been repealed by the date of the dismissal in this case.[7]Sections 98(1) and 98(2) ERA provide as follows:
"98 General (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal. And (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee. (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment."
A dismissal is defined, as far as is relevant in this case, by s95(1)(b):
"95 Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if (and, subjection to subsection (2) … , only if)— … (b) he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or"
The facts[8]The facts found by the Tribunal were these:
"2. The claimant's employment with the second respondent ended on 30 August 2004 when her fixed term contract was not renewed. The respondents admit that by reason of the non-renewal of the claimants fixed term contract she was dismissed pursuant to Section 95(1)(b) of the Employment Rights Act 1996 . 3. During the course of the hearing an issue arose as to the reason for the claimant's dismissal. Mr Dra[y]cott by his questions to Mrs Taylor assumed that the respondents were alleging that the reason for the claimant's dismissal was redundancy. However Mr Byrne confirmed that the respondents were alleging that the reason for the claimant's dismissal was some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the claimant held. This reason is not expressly set out in the respondents' response form. However it is clearly implicit. The respondents contended that there was no need in such circumstances for the response to be formally amended. However if an amendment was necessary the respondents applied to amend their response accordingly. Mr Draycott on behalf of the claimant objected to the proposed amendment. He contended that he might have asked different questions of Mrs Taylor if he had known that the respondents were alleging that there was some other substantial reason for the claimant's dismissal. He also contended that he had had no opportunity to research the relevant case law relating to some other substantial reason. Having considered the contentions the Tribunal decided that it was appropriate, in the interests of justice, to allow the amendment so as to make explicit what was already implicit. Mr Draycott was also given the opportunity to recall Mrs Taylor to ask her further questions and he took full advantage of this opportunity. Further as the case was adjourned part heard Mr Draycott had ample opportunity to research the relevant case law relating to some other substantial reason."
[9]As can be seen, the Tribunal there disposed of what might have been described as a pleading point pre-Woolf. The Tribunal, although it did not have a written amendment, allowed to make explicit what was implicit in the response form in that the Respondent was relying upon 'some other substantial reason' as a justification for the dismissal. It is not in dispute that the termination of employment by reason of the ending of a limited-term contract constitutes a dismissal.[10]The leading actors in this drama at all relevant times are the claimant herself and Mrs Taylor, the head teacher. The Tribunal made the following findings:
"5.1 The claimant commenced her employment with the second respondent as a teaching assistant on 2 September 2001. She was initially appointed on a one year fixed term contract which was renewed for a further year from September 2002 and a yet further year from September 2003. Under the terms of her contract the claimant worked 29 1 / 4 hours a week over five days. … 5.3 The second respondents' budget is affected by how [many] children will be on the pupil roll. The budget is further affected by the number of children who have a statement of special needs. Yet further the budget is affected by the number of children who are identified as needing additional assistance but not such that they require to be issued with a statement of special needs. The uncertainty surrounding how many pupils there will be in the following year, how many will have statements of special needs or will be identified as needing additional assistance is one of the principal reasons why teaching assistants are appointed on temporary fixed term contracts."
Thereafter, steps were taken to see if the Claimant could be kept on in some sort of occupation within the school, notwithstanding the threats to the budget. It had fallen over the relevant year so that there was £45,000 less and that was caused by the drop of 21 children in the School. Funding was needed. Letters were written and meetings conducted between Mrs Taylor and the Claimant, the upshot of which is that Mrs Taylor indicated that the Claimant's contract was, as was known, about to come to an end. The Claimant was away sick and required, according to the Respondents' procedures, to be reviewed. Offers were made of alternative work from that which was then being done by the Claimant as a teaching assistant.[11]In due course, Mrs Taylor found out that the Claimant had accepted employment at the Deanery Church of England School, Wigan, on 18 July 2004, to take effect from 31 August 2004. This is a change of school but not a change of employer, since the Council holds the contract in both places.[12]On 4 August 2004, when Mrs Taylor got to know about this, she wrote the following:
"Dear Ms Jackson I have recently received information to the effect that you have secured employment with the Deanery High School, commencing in the new academic year. Therefore I confirm that your existing contract with Shevington High School will terminate at August 31, 2004, this being the expiry date of your contract. In view of the information received I feel there is no need to continue with the management absence process. Should my information be incorrect, or should you wish to discuss the matter, please do not hesitate to contact me. May I wish you every success in your new post. Yours sincerely D F Taylor (Mrs) Headteacher"
[13]The Claimant's employment came to an end at the end of the month. The Tribunal found that the reason for it was expressed in this way:
"6. We are satisfied that the reason that the claimant's fixed term contract was not renewed was that the second respondent knew that the claimant had obtained alternative employment at another school and it believed, upon reasonable grounds, that the claimant did not wish for her fixed term contract to be renewed. We are satisfied that this amounts to some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the claimant held."
[14]In turning to whether or not the dismissal was fair, the Tribunal said this:
"7. We are satisfied that the respondents have shown a reason for the dismissal and had therefore fulfilled the requirement of sub-section 98(1) of the Employment Rights Act 1996 . We must therefore determine whether the dismissal was fair or unfair having regard to the matters set out in sub-section 98(4) of the said Act. In relation to this we are satisfied that the respondent acted in a fair and reasonable manner throughout their dealings with the claimant. In particular we are satisfied that at all material times Mrs Taylor carried out fair and proper consultation with the claimant. We do not consider that Mrs Taylor can sensibly be criticised for warning the claimant, and other teaching assistants, of the possibility that their fixed term contracts might not renewed and giving them the reasons why their contracts might not be renewed. Nor do we find Mrs Taylor can sensibly be criticised for suggesting to the claimant, and to other teaching assistants, that they might consider making other arrangements for their employment. The claimant conceded whilst being cross-examined that she had never been told that her fixed term contract would definitely not be renewed and she conceded that it always remained a possibility that she would retain her employment with the second respondent. However it appears that the claimant sensibly decided to look for, and to accept, another post. If the claimant had replied to the letter of 4 August 2005 and had stated that if at all possible she would prefer to retain her employment at Shevington High School rather than taking up the post she had accepted at the Deanery High School the second respondent would be open to criticism if it had decided in such circumstances not to renew the claimant's fixed term contract. However the claimant did not respond to the letter of 4 August 2004 and we are satisfied that Mrs Taylor acted reasonably by inviting the claimant to contact her if her information was incorrect or if the claimant wished to discuss the matter further. It may well be the case that with the benefit of hindsight the claimant regrets taking up the offer of employment at the Deanery High School and that she regrets that she did riot contact Mrs Taylor in order to inform her that she wished to retain her employment at Shevington, High School. However in the circumstances that prevailed in August 2004 we are satisfied that the second respondents decision to dismiss the claimant by not renewing her fixed term contract was a fair decision given that the claimant had accepted a position at another school and given her failure to inform the second respondent that she wished to retain her employment with the second respondent. Accordingly we find that the claimant was fairly dismissed."
[15]It also determined the claim for wrongful dismissal in terms which, although not appealed, are relevant as we will show, for the Tribunal said this:
"8 The claimant's fixed term contract was offered and accepted on the basis that it was from 4 September 2003 to 31 August 2004. At common law if a contract is for a fixed term period it comes to an end by reason of the effluxion of time upon the finishing date provided for in the contract of employment. Given that the end date of the fixed term contract was set out in the contract of employment there is no additional requirement imposed upon the respondents to give any further notice of termination to the claimant."
The Claimant's case[16]An application was made to include one ground of appeal which had not been the subject of an approved draft as put before HHJ Pugsley. We ruled that Mr Draycott may not rely upon it. On the appeal, he first contended that the Tribunal had failed to deal with the stated reason of the Respondent and had applied a separate reason. He contended that the Tribunal's finding was not open to it, although he accepted as a matter of law that a re-labelling is permissible. What the Tribunal had done by allowing the amendment to be made was to allow the Respondent to change the facts upon which it relied.[17]Secondly, the Tribunal had wrongly focused upon the date of dismissal and the date of the reason for dismissal as being on or around 4 August 2004 when it would have been, correctly, 10 or 17 June 2004. At this time there was concern about reduced funding and the need to make cuts in the workforce. The decision-making therefore about the non-re-engagement of the Claimant was at that time.[18]Thirdly, the contract incorporated by reference the provisions of the guidance and an entitlement to the procedures set out in the guidance under the Education Act 2002 . The Tribunal had been addressed on this guidance expressly by Mr Draycott and had failed to deal with it. The guidance does contain valuable rights for an employee about to be dismissed and these applied to the Claimant.[19]Finally, the Tribunal was wrong to allow what is effectively a change in the factual basis to be advanced by the Respondent under the banner of 'some other substantial reason' when it had contended that the reason for dismissal was the expiry of the contract. It was contended that the contract relevant to the Claimant included the statement of particulars issued for the purposes of her second engagement by the Respondent and did not expire on the expiry of that engagement, which was as a non-teaching assistant, but continued throughout the period of her third engagement. The Respondents' case[20]On behalf of the Respondents it is contended that the statement in the response form indicates the factual basis which will be advanced. This includes the following passages:
"13. On or around 2 August 2004 Mrs Taylor received notice that the Claimant had secured employment with the Deanery High School commencing in the new academic year. Mrs Taylor therefore wrote to the Claimant in a letter dated 4 August 2004 acknowledging this fact and confirming that her existing contract with the Respondent will expire pursuant to the fixed term on 31 August 2004. 15. Accordingly, the Respondent submits that the Claimant's Claim Form is misconceived. The Claimant was not a permanent employee of the Respondent. The Claimant had not been continuously employed, either under a single fixed term contract or a series of such contracts for four years or more. The Claimant at the time of dismissal was employed on a temporary Fixed Term Contract. Further, the Claimant had bene given adequate advance notice that the Contract would not be renewed and also given every opportunity to apply for alternative posts within the school at which she was abased."
Thus, while Ms Mulholland accepts the delineation between re-labelling and recreation of facts, her case falls within the former. Secondly, she argues that the relevant focus is, at the time of the letter of 4 August, indicating the reason by the Respondent for the taking of no further steps to keep her within the School. It does not relate to decisions which were not formal decisions to dismiss on 10 and 17 June. In any event, the finding by the Tribunal from paragraph 8 precludes any argument about the notice period, since it represents an unappealed finding of fact and law by which the Claimant is bound and we are not entitled to give a different view.[21]As to the application of the statutory guidance, she contends that the contract is different between the two years. Any reference to the earlier statute would lapse when that statute was repealed - or that part of it was repealed - on 1 August 2003, and there is a different, more flexible regime in place so that the earlier authorities relating to this statute do not apply. For example, Raja v Governing Body of Jack Hunt School (UKEAT/1502/00).[22]She accepts that the Tribunal was addressed in relation to the statutory guidance; it made no reference to it in its judgment, but that does not mean it did not consider it. If we were to detect an error in the Tribunal's approach it would be open to us to substitute our judgment, which we could do on the material here, because paragraph 17.6 of the statutory guidance excludes from the protection of those provisions those who are at the end of limited periods of work within one year, such as supply teachers or those covering a period of maternity leave.[23]She further contends that there was no "initial decision" such as would trigger these procedures. As to 'some other substantial reason' she makes the same point as she makes in response to Mr Draycott's first point. The legal principles[24]The legal principles to be applied in this case appear not to be in doubt and they have been canvassed by both Counsel. We will focus solely on the legal principles applicable to the issues and we will deal with them as we go.[25]The first relates to the reason for the dismissal. Our conclusion is that the Tribunal had material before it upon which it could conclude as it did in paragraph 6 as to what the reason was. We remarked during argument that this was a technical issue relating to what might be described as a rather arid debate. The Claimant was of course still employed at the time by the Council in both schools. In a very general sense the reason for the Claimant's ceasing to be engaged by the School was the expiry of her contract. The imminence of that expiry obviously provoked the Claimant to go and seek work in the market and to be successful in obtaining a job, albeit on less pay, at the Deanery School. It was that which triggered the letter by Mrs Taylor, so in a sense both explanations are tenable. But for the coming to an end of the fixed term of the contract, the Claimant would not have needed to go to the Deanery and, but for getting a job at the Deanery, the Respondent would have explored further opportunities with the Claimant.[26]It must be borne in mind from the citation of Mrs Taylor's letter of 4 August 2004 that the initiative could be taken by the Claimant to correct the information. In other words, the door was still open to her continued employment and she was indeed, we find, being offered work of 16 hours and the School did not want to lose her because she was a good teaching assistant. Nevertheless, the Tribunal has come to a correct conclusion on this material. The Tribunal did not err in allowing an amendment to the statement and paragraph 13 of the response is, as Ms Mulholland correctly says, a fair description of the facts relevant in this case. Thus, no error of law occurred when the Tribunal came to the conclusion which it did, and it expressed itself clearly so that we can understand the issues. This ground of appeal is dismissed.[27]That also deals with the second point in the appeal, which is the date of the belief by the Respondent and the reasons used to support the decision. This was 4 August 2004. We accept that the reasons for a dismissal need to be in the minds of the decision-maker at the time that a decision is made. This, on the facts of this case, means 4 August 2004, for unless the Claimant came forward to correct the impression in the mind of Mrs Taylor, the contract would come to an end at that time. Arguments based on the requirement to give notice seem to us to be misplaced. This is because of the unappealed finding in paragraph 8, so that there was no need for a notice to be given if the contract came to an end by the expiry of the period for which it was enacted.[28]We then turn to the criticism of the Tribunal for failing to pay attention to the arguments relating to the statutory guidance. This has force. It is the duty of a Tribunal to decide the issues which are before it. We have no doubt that Mr Draycott put the point that the Claimant was entitled to whatever protection there was in the guidance. If the Tribunal were to hold under the new more flexible regime that the guidance did not apply, it should have said so. If the Tribunal were to hold that she was, for example, within the scope of paragraph 7.6, it should have given reasons for that. Thus an error was committed by the Tribunal in failing to make a decision on this issue. We are prepared to accept therefore that there were some valuable considerations to the Claimant. It may well be that this turns out to be a vacuous exercise, since the trigger for the Claimant leaving was she herself finding alternative work which, we are sad to hear, she was forced to quit not long after starting.[29]For this reason therefore the Tribunal will be invited on a controlled remission by us to consider Mr Draycott's argument about the implication of the guidance. He is wrong, however, to say that this is incorporated into the contract. The sole basis on which he can argue that is based upon a statute which is cited in the particulars of employment of the Claimant, but which had been repealed. But he does not need this, because if the Claimant is entitled as a matter of public law to consideration by the governors of the guidance, that is sufficient, and they must give consideration to and, as appropriate, apply the guidance given by the Secretary of State or say why not, and the Tribunal must rule upon it.[30]We are also prepared to accept Mr Draycott's submission that the statement of particulars is the one which applied to her. The Council did not issue new terms and conditions upon the third engagement of the Claimant. Until they were replaced (with a second set to reflect the new terms in the new contract) they would continue to apply. Any confusion in this should be decided in favour of the Claimant, for it is the Respondent who is required to put these documents forward.[31]We accept that there is a distinction between the particulars, of which there is only one set, issued on 23 September 2002 and applied to the job then in force to 31 August 2003 on the one hand, and the contract offered by letters of appointment on 7 July 2003 where there is no reference to the statute. This we hold is not fatal, for as we have said the Claimant is entitled by statute to consideration by the governors of her conditions within the guidance of the Secretary of State and does not need to fall back on her contract. This matter will be considered by the Employment Tribunal. It will hear arguments as to the applicability of this to the Claimant and what effect a failure by the governors to apply this procedure had on the circumstances.[32]Finally we turn to the wraparound contention about 'some other substantial reason'. For the same reasons as we have given above, no error was committed by the Employment Tribunal in allowing the amendment in order for the Respondent to argue as it has before us that the reason for dismissal was as found by the Employment Tribunal.[33]Only one ground within Sinclair Roche & Temperley v Heard [2004] IRLR 763 was advanced, which is lack of confidence by the Claimant in the Tribunal. Every disappointed party will to some extent lose confidence in the Tribunal; the real issue is whether objectively it can be said that there is no confidence in the professionalism of this Tribunal. We have not lost confidence in it; indeed we have upheld for the most part its judgment, and a certain aspect of it was not appealed. This will go back to the same Employment Tribunal for it to consider those matters.[34]We would very much like to thank both Counsel before us today for their very helpful arguments.