Breach of contract: Local authority entitled to suspend former teacher acting as union representative
Published 19 November 2014
We have already sent out a number of alerts this month. Of most significance were our alerts about how holiday pay should be calculated where workers ordinarily receive overtime. The High Court has also heard Unison's second judicial review application recently and looked at whether employment tribunal fees are lawful.
The School Staffing England Regulations 2009 (2009 Regulations) provide for the governing body of a school to establish disciplinary procedures for the staff of the school, and permit the governing body or the head teacher to suspend an employee. Only the governing body may end a suspension if they were responsible for the initial suspension. The governing body may also direct the local authority to dismiss any person employed or engaged by the authority to work at the school.
The Education (Modification of Enactments Relating to Employment) (England) Order 2003 (2003 Order) states that where a governing body exercises its powers under the 2009 Regulations it shall be treated as the employer for the purposes of any employment claims.
The Claimant was employed by Haringey local authority in 1992 as a full-time assistant teacher at a maintained community school. In 1997 she was elected as the Deputy Divisional Secretary of the National Union of Teachers for Haringey. She was released from teaching for three days a week to carry out her union activities until April 2000 when she carried out her Union activities full-time. This arrangement continued until her suspension on 17 July 2014 for breach of the local authority’s code of conduct and social media policy. The complaints did not relate to the Claimant’s teaching. In the intervening period, the Claimant’s post at the school had been deleted. The Claimant alleged that the local authority had no power to suspend her, or take any disciplinary action against her, as she should be subject to the school’s disciplinary policy.
The High Court found that the Claimant’s contract of employment had been varied, either by express agreement or impliedly by the parties, as a result of which the Claimant was not at the time of her suspension employed by the local authority as a teacher. The fact that the authority had failed to update her particulars of employment did not affect that position.
In terms of the legislative framework the judge found that there was no legislative provision that meant only the governing body of the school could discipline the Claimant. The 2009 Regulations did not take away the local authority’s power to discipline staff at school – they simply also gave the governing body of a school the ability to manage its staff including suspending them. However, as the Claimant’s employment contract had been varied, so that since 2000 she had not been employed as a teacher, the 2009 Regulations were irrelevant. As the 2009 Regulations did not apply, the school’s disciplinary policy did not apply.
The 2003 Order had no effect on the parties’ contractual rights; it related to the statutory causes of action that an employee can use before an employment tribunal allowing the tribunal to proceed as if, in such claims, the governing body were the employer.
What this means for employers
The case provides a useful clarification of the purpose of the 2009 Regulations and 2003 Order, and provides an interesting example of a circumstance in which the governing body of a maintained school will not be considered the proper respondent in a claim by one of its employees. The case also confirms that, even where the 2009 Regulations apply, the governing body’s powers to discipline an employee are not exclusive.