MIDDLESEX UNIVERSITY STUDENTS UNION v MR S PITT [2007] UKEAT 0399_07_2609

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2007] UKEAT 0399_07_2609

Case No Appeal No. UKEAT/0399/07

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MIDDLESEX UNIVERSITY STUDENTS UNIONAPPELLANT

MR S PITTRESPONDENT

Before

His Honour Judge Ansell Mr A Harris Mr B Warman

Date 26 September 2007

[1]APPEARANCES For the Appellant MR B DRUCKER (Representative) For the Respondent MR S PITT (The Respondent in Person) SUMMARY Contract of Employment Employment of a sabbatical Student Union employee had to be determined by both the union constitution and the contract of employment. Accordingly right of appeal only required a simple majority at the union meeting. HIS HONOUR JUDGE ANSELL Introduction This has been an appeal against a decision of a Watford Employment Tribunal who, following a hearing at the beginning of this year, and in reasons sent to the parties on 30 May 2007, determined that the Respondent, Mr Pitt, had been wrongfully dismissed in breach of his contract of employment. Issues of remedy were adjourned to another date and have not yet been determined. There was also a claim under the Part-time Workers Regulations, but that was not proceeded with. Background

[2]The background facts we take generally from the Tribunal's decision although, for reasons that will become obvious in due course, we will slightly expand them with reference to that documents that were referred to by the Chairman in his Decision. The Appellant is the Students' Union of the Middlesex University, described as a charitable organisation existing for the benefit of its members who are all students of the university. The funding comes mainly from the university, and the constitution of the union is approved by the university board of governors pursuant to part 2 of the Education Act 1994.

[3]The Respondent was elected in 2005 as a sabbatical officer of that union, of which there are six. He was elected under the provisions of the constitution but he also entered into an employment contract. There was a preliminary issue as to whether or not he was an employee, but by the time of the decision that is appealed that was no longer an issue, and it had been determined, we believe, at an earlier stage that he was an employee. It is right to say that office holders can be employees as well, see the case of Percy v the Church of Scotland Board of National Mission

[2005] UKHL 73

[4]The contract itself has the following relevant clauses:

"2. The period of employment shall commence on 1 st July 2005 and shall be terminated on 30 th June 2006 unless otherwise terminated in accordance with the constitution. 3. The employee will be required to perform the duties as listed below. These duties can only be changed at the discretion of the Executive Committee."

One of the duties is described as attending Union Committee meetings. "6. If duties are not carried out without good reason, the issue may be raised at an Executive meeting. The Executive has the power to discipline sabbatical officers to withhold the equivalent of one day's pay in any one month until duties are carried out to the satisfaction of the Executive Committee. 16. Termination of contract. The employee shall give the executive committee not less than one month's notice of his or her wish to terminate the contract. The Students' Union may terminate this contract at any time following a vote of 'No Confidence' as contained in the Constitution." The constitution has the following relevant clauses. In clause 4, having defined the sabbatical officers, clause 4.2 provides that, "the duty of these officers can be observed in their individual employment contracts." Clause 5 deals with the governance of the union, and the particular relevant clause to this appeal is clause 5.10 and 5.14. 5.10 provides as follows:

"All elected officers of the Union should attend Union committee meetings where they hold membership. Officers will be deemed to have resigned their position where they have failed to attend two consecutive meetings of the same committee without apology. All officers will have the right of appeal to the Student Government at its next scheduled meeting. 5.14. Constitutional amendments may only be made with a two-thirds majority vote of Student Government, and when agreed, must then be referred back to the University Board of Governors. 6.4. Disciplinary powers. 6.4.1. Government will hold powers to regulate the Executive Committee and members of Campus Committees. Government itself will be self-regulating and holds powers to discipline its own membership. 6.4.3. Where a sabbatical officer has failed to carry out duties as outlined within their contract, a motion of no confidence in the officer can be put to Government. A two thirds majority vote of those present will be necessary to carry the motion. The officer shall cease to hold office forthwith."

Clause 9 deals with general disciplinary matters against all union members. Clause 9.2.2.6 provides the following:

"Members will have the right to appeal to the next full meeting of the student government. A successful appeal will require a majority vote by government. Original disciplinary committee members would withdraw from voting."

And finally clause 12.1:

"Disputes surrounding the interpretation of the Constitution shall be resolved by the Clerk to the University Board of Governors."

[5]In November 2005, there were concerns on the part of the Appellant's president, Keith Shilson, that the Respondent had allegedly missed two meetings. He was written to on 10 November warning him that if he failed to attend the next consecutive meeting or another two executive meetings he would be deemed to have resigned. He was told in a letter that the next executive meeting was on Thursday, which was the following day. The Respondent's case was that he did not receive the letter in time for him to attend the meeting.

[6]On 21 November 2005, he was written to again by Mr Shilson, telling him that if he failed to attend that Thursday meeting he was deemed to have resigned, that he would cease to hold office with the union and that his contract was terminated forthwith. He was given the right of appeal to the next student government meeting, which was to take place on 30 November 2005. There was an issue as to whether or not the Respondent did exercise that right of appeal. However, by the time of the meeting, an issue was dealt with at the meeting in relation to that appeal. A vote was put to the meeting, and there was a simple majority in favour of the Respondent. Therefore, on his analysis, his appeal succeeded. Faced with that result, the chairman of the meeting, apparently having taken advice from a senior member of the academic staff who was present at the meeting, ruled that the vote effectively amounted to a change in the constitution, and that, as a two-thirds majority was required to overturn a clause in the constitution under clause 5 of the constitution, a two-thirds majority had not been achieved, and therefore the appeal of the Respondent failed.

[7]The Respondent complained about these matters to the governors. There is a letter of 8 December 2005, which is referred to by the Chairman, from Teresa Kelly, describing herself as the assistant clerk to the board of governors. Referring to clause 5(10). She went on to say this:

"It is correct that a two-thirds majority would be required to overturn this clause in the constitution. This is because a change to overturn the clause in the constitution would be considered a motion of amendment, which requires a two-thirds majority. Also, if it had been the opposite way round and a vote was required for a no confidence action, then a two-thirds majority would similarly have been needed. It should also be understood that as a sabbatical officer you are a paid officer of the union, you are subject to university regulations and disciplinary procedures as a student and, as a sabbatical officer, you are subject to union procedures of investigations and censure, as set out in the constitution. My decision on the matter is final."

The Employment Tribunal Decision

[8]The Tribunal referred to certain clauses in both the contract of employment and the constitution, and concluded that the contractual relationship was entirely governed by the contract of employment. Since the only provision in that contract was clause 16, which entitled the Appellant to terminate on a vote of no confidence, and there had been no such vote, they were therefore in breach of contract. They also rejected a suggestion that the contract was terminated by reason of frustration. We will turn to that in a moment. The Appellant's Case

[9]The submissions made before us today, very ably, by Mr Druker, who we understand is a paid employee of the Students' Union, really can be categorised into two issues. First of all, he contends that the Tribunal were in error in not reading together both the contract of employment and the constitution. He makes the point that the Respondent was appointed under that constitution, and, moreover, in clause 2 of the contract of employment there are these words, to which we have already made reference, "unless otherwise terminated in accordance with the constitution". Therefore, he contends that, in terms of termination, one cannot simply look at what is in the contract but also as to what powers of termination there may well be under the constitution as well. He goes on, therefore, to contend that the Respondent's contract was lawfully terminated under the constitution by reasons of the provisions of the clause 5, and in particular clause 5.10; and that, whilst that particular clause did not in itself specify what majority was required, the chairman of the meeting was not in error in reading into that clause the requirement for a two-thirds majority, asserting that the requirement of that majority was needed as amounting to a constitution amendment of that particular clause.

[10]In any event, Mr Druker goes on to argue that the actions of the assistant clerk in confirming the decision was an act, part of which amounted to the implementation of the contract and the constitution and, therefore, was the final act in terms of the dismissal of the Respondent. Alternatively, that it was an independent act imposed on the parties by the university and it amounted to a frustration of the contract. In particular, he relies on the words of HHJ Serota in the case of Anyanwu & Or v South Bank Students' Union

[2001] ICR 391

. Conclusion

[11]Let us deal with those points separately. As far as the inter-relationship between the contract and the constitution are concerned, we are in no doubt that the two documents have to be read together. Indeed, Mr Pitt before us, appearing in person, has not seriously challenged that proposition. This recognises the fact that he was appointed as an office-holder under that constitution. Moreover, there is specific reference to the provision of termination under the constitution in clause 2 of the contract, to which we have made reference. To take the view that clause 16 of the employment contract provides the exclusive method of terminating the contract is, in our view, clearly incorrect.

[12]The Tribunal's decision, based on a narrow interpretation of the contract, therefore poses a particular problem to us. Having found that the contract and the constitution have to be read together in terms of termination, should we then send the matter back for reconsideration by the same or a different tribunal, or are there sufficiently clear matters of fact that enable us to form our own view of how those facts should be interpreted? We have considered carefully this particular part of the decision but have come to the conclusion that, as far as we are concerned, the facts are clear and that, therefore, we are entitled to apply the law to those facts, as found by the Tribunal.

[13]We then have to move on to the issue of clause 5.10. It is right to say that, before the Tribunal, Mr Pitt was arguing that the whole process was unfair and that the factual basis to invoke 5.10 was not in fact there. He was, in effect, suggesting that the union may have been in breach of an implied term of unfairness in the way that he was dealt with. That was not an issue that the Tribunal had to deal with because of the narrow view that they took of the contractual issue. As will appear in a moment, it is not an issue that we also will have to deal with.

[14]Mr Druker concedes that clause 5.10, taken by itself, is silent on the requirement for a two-thirds majority. We are in no doubt that the requirement for a two-thirds majority, required by the union at that meeting, was an erroneous approach. To suggest that it could be linked in with the suggestion of a constitution amendment is, in our view, a totally wrong view of clause 5. Mr Pitt, in suggesting to the meeting that the matter could be dealt with by a simple majority, was not seeking to reverse the scope of rule 5.10. He was merely seeking to interpret the final sentence of that clause which gave the right of appeal to the aggrieved officer. To suggest that it was somehow seeking to amount to an amendment of the whole clause is, in our view, totally incorrect. Mr Pitt was not seeking, by that requirement, to set aside the whole clause. For the purpose of that argument, he was assuming that he was in breach of the requirement to attend the meetings. What he was saying was that the union, in offering the right of appeal, and in failing to specify that there was a requirement for a two-thirds majority, must have left it open to the meeting for them to decide the issue on a simple majority.

[15]That approach would also, of course, accord with the approach taken on general disciplinary matters that is set out in clause 9 of the contract, which provides that, in general disciplinary matters, union members have a right of appeal similar to that which was offered to Mr Pitt, and that right of appeal only requires a majority vote to be successful. Indeed, one might also argue that in normal constitutional law, in the absence of any specific requirement for a special majority, a normal majority would suffice.

[16]The final issue, therefore, is whether or not the union can effectively hide behind the subsequent decision of the assistant clerk to the governors, either on the basis that it amounted to the final stage in the correct interpretation of the union's procedure, or that it was effectively a frustration of the contract being a supervening act or occurrence emanating from a third party, in this case the university, over which the union had no control.

[17]The case of Anyanwu involved two students of black African origin at the South Bank University, who were elected as full-time salaried officers of the Students' Union, taking up employment in August 1995. In March 1996, they were expelled from the university following investigation of serious allegations against them related to their conduct. As a result, they were barred from the Students' Union building. It was thus impossible for them to perform their duties, and the Students' Union treated their employment as at an end. The university, in fact, also imposed a temporary new constitution and a new set of honorary officers running the Students' Union. The case went up to the House of Lords originally on a different issue, came back to the Tribunal, and that Tribunal's decision was again appealed to this Court and dealt with by a Tribunal chaired by HHJ Serota QC. At paragraph 74 HHJ Serota said this:

"In our opinion, the fact that the Applicants may have brought the imposition of the new constitution upon themselves does not prevent the union from asserting that the contract was frustrated if it had indeed become impossible of performance [and then I go on to stress these words] without any default on the part of the union."

At paragraph 79, he said this:

"At one time we were almost persuaded that there was a dismissal in this case but, upon reflection and after hearing Mr Afeeva's submissions, we have come to the conclusion that the Employment Tribunal was correct. The imposition of the new Constitution, together with the removal of the Applicants as Trustees and their expulsion from the University, left the Executive with no choice but to recognise that the contracts of employments had become incapable of performance and were in fact frustrated by reason of impossibility of performance. The facts that we have just set out justify the Employment Tribunal's conclusion that the contracts of employment were terminated and frustrated by reason of impossibility of performance."

[18]We would distinguish the facts of that case from the situation in the present case. In Anyanwu , the acts in first of all dismissing the students from the university, barring them from the Students' Union building and then imposing a new constitution and new sabbatical officers, was a process totally outside the scope and power of the Students' Union themselves. In the present case, however, the involvement of the clerk to the board of governors only arose as a result of what we believe was a wrongful decision taken at the students' meeting. That was a wrongful decision taken by the Students' Union; whether it was on the basis of outside advice or not is irrelevant. It was their mistake and their wrongful act. As HHJ Serota determined it, there was a default in this case on the part of the union, in a mistaken view that a two-thirds majority was required because it had become a constitutional issue. Their ruling, mistaken as it was that it was a constitutional issue, was the only reason that the governors became involved. In our view, the actions of the union in deciding whether or not there was wrongful dismissal have to be judged at the time of the meeting itself. What happened thereafter, in our view, is irrelevant once the wrongful process has taken place at the meeting.

[19]We are, therefore, left in no doubt, on the facts presented to the Tribunal and to us, that there was a wrongful breach of contract arising from the union's requirement that a two-thirds majority was required for a successful appeal at the meeting. On that basis, therefore, we would uphold the Tribunal's decision, albeit on differing grounds, and accordingly this appeal is dismissed.