How education institutions have been taught a lesson
First up is the Court of Appeal’s judgment in G v X School & Others (previously reported in our October Employment bulletin) where the Court held that G should have been entitled to legal representation at a disciplinary hearing after which she was dismissed for gross misconduct, namely sexual misconduct with a child. The Court held that the disciplinary proceedings had a substantial effect on G’s right to practise her profession as the school’s findings would influence the Independent Safeguarding Authority’s (“ISA”) decision whether to bar her from working with children, particularly where G could submit representations to the ISA but had no right to oral hearing.
The judgment in this case is of relevance to all educational establishments, whether in the public or private sector, where the outcome of disciplinary action may end an employee’s chosen career.
The next case to come along was that of Buckland v Bournemouth University Higher Education Corporation. Prof Buckland was professor of archaeology whose course had high exam failure rate. His head of Department conducted and announced the outcome of re-marking exercise without consulting Prof Buckland, who was understandably upset. He complained and was vindicated in a report following an enquiry. However, he still resigned some five months after the re-marking exercise had taken place, left at the end of the academic year, and then claimed constructive dismissal.
The University argued that the report had vindicated Prof Buckland and that there had been no ongoing breach of the implied term of mutual trust and confidence. But the Court of Appeal disagreed and held that the breach had not been cured because the slur on Prof Buckland’s integrity remained, despite vindication by the report. It held that the University (as the party in default) could not unilaterally cure their repudiatory breach. It was also reasonable for Prof Buckland to wait for the outcome of report before resigning and not to leave until end of academic year.
In light of this case, it is clear that any employer that upholds a grievance going to the root of the employment relationship won’t be able to subsequently argue that upholding that grievance has resolved the problem disentitling the employee from claiming constructive dismissal.
The EAT then considered the case of Hussain v Acorn Independent College. Mr Hussain worked for just over three months as cover for a teacher when that teacher was absent due to ill-health. After the absent teacher resigned at the end of the summer term, Mr Hussain was offered permanent employment from the start of the autumn term. When he was dismissed towards the end of the following summer term, he claimed unfair dismissal. He argued that he had over twelve months continuous service from when he first provided cover for the absent teacher and the EAT agreed, finding that the only reason for termination of his first contract was the temporary cessation of work over the summer holidays. They also decided that the fact that Mr Hussain did not know at the end of the summer term that he would be returning was not a relevant factor.
An employer should always therefore be careful to consider how much continuous service an employee has where they previously provided services to the organisation before being made permanent.
Finally, the EAT has recently given its judgment in the case of Lancaster University v UCU. The University employed staff on fixed-term contracts dependent on funding. From 1996 to 2009, their practice was to consult prior to the expiry of their contracts with the staff only, whilst at the same time providing the UCU lists of staff whose contracts were due to expire. In September 2008, a new UCU Officer considered that the University's consultation did not comply with collective redundancies legislation as not only was insufficient information provided to UCU, but also there was no consultation with UCU representatives. The UCU therefore brought a claim for a protective award on behalf of all affected staff, seeking the maximum 90 days’ pay award. As there had clearly been a breach of the collective redundancies legislation, the Tribunal upheld the claim, but considered that the UCU had “effectively condoned” the University’s practices for 12 years. For this reason, they awarded (only) 60 days’ pay to each affected employee.
The EAT agreed that the University had committed a serious breach of the employees’ rights, but rejected the UCU’s appeal that the Tribunal should have awarded the maximum 90 days’ pay as they felt that the University had been “lulled into a false sense of security” by UCU’s previous failure to challenge their practice.
Although the employer in this case escaped a maximum award, any protective award is expensive as it applies to all affected staff and, unlike many other payments, there is no cap on a week’s pay. Employers should therefore ensure that collective consultation take places wherever redundancies (as widely defined in the legislation) are proposed.
Published: 15 Dec 2010