Governing Body of Clifton Middle School v Askew

Where a local education authority lawfully ceases to maintain existing county schools and establishes a new school, the statutory scheme does not treat that event as an amalgamation. The former governing body determines redundancy among staff at the discontinued school. The new governing body decides whom to appoint to the new school.

The deeming provisions in the Education (Modification of Enactments Relating to Employment) Order 1989 operate for unfair-dismissal purposes. They do not create the substantive employment relationship required for a transfer under TUPE or the Acquired Rights Directive. Those protections require a transfer to a different employer and an employment relationship with the transferor. A teacher employed only by the local education authority could not rely on them against the old and new governing bodies.

A teacher employed by a local education authority worked solely at a middle school. Following a statutory reorganisation, the authority ceased to maintain the middle school and a first school, and established a new primary school. The old governing body determined that the teacher should cease to work at the middle school. The authority dismissed him for redundancy. The temporary governing body of the new school did not recommend him for appointment.

An Industrial Tribunal declared the dismissal unfair, treating the change as an amalgamation. The first Employment Appeal Tribunal allowed the respondents’ appeal and held that the school had closed and that the dismissal was a fair redundancy dismissal. A differently constituted Employment Appeal Tribunal rejected the teacher’s further TUPE argument. The central issues were whether the reorganisation was an amalgamation and whether it involved a transfer to a new employer for the purposes of TUPE or the Acquired Rights Directive.

1. Appeal dismissed by a majority of two to one. Peter Gibson LJ, with whom Ward LJ agreed, held that the first Employment Appeal Tribunal had correctly rejected the Industrial Tribunal’s amalgamation analysis.

2. Section 12 of the Education Act 1980 provided the statutory mechanism chosen by the authority: the old schools ceased to be maintained and a distinct new school was established. That was not a significant change to an existing school, merger or amalgamation. The old governing body ceased to have functions after the closure date. Under the Education Reform Act 1988, it was for that body to determine that staff working solely at the old school should cease to work there; it was for the new governing body to recommend appointments to the new school.

3. The Education (Modification of Enactments Relating to Employment) Order 1989 required the fairness of the dismissal to be assessed by reference to the old governing body’s determination. The dismissal was for redundancy, or alternatively for a substantial reason arising from the statutory reorganisation, and its fairness on that basis was undisputed.

4. The majority held that neither TUPE nor the Acquired Rights Directive applied. Both required a transfer to another employer. The teacher’s only contract of employment was with the local education authority, which remained the employer. The Order’s deeming provisions for unfair-dismissal proceedings were procedural and ancillary; they did not create transferable contractual rights and obligations between the teacher and either governing body. TUPE also proceeded on the basis of a contract between the employee and the transferor. The word “otherwise” in the definition of employee did not extend it to a non-contractual relationship with a governing body.

5. Chadwick LJ agreed that the redundancy dismissal was fair and that TUPE did not assist the teacher. He dissented on the direct application of the Directive. In his view, the Order created an employment relationship with correlative unfair-dismissal obligations capable, subject to Article 4(1), of transfer under Article 3(1). He would have allowed the appeal and remitted the case. The court ordered that the appeal be dismissed with costs and refused leave to appeal.

• Court of Appeal: appeal dismissed by a majority. The court upheld both Employment Appeal Tribunal decisions and rejected the claims based on TUPE and the Acquired Rights Directive.
• Employment Appeal Tribunal: allowed the respondents’ appeal from the Industrial Tribunal and held that the old middle school had closed, that the old governing body was responsible for the redundancy decision, and that the dismissal was fair.
• Employment Appeal Tribunal: in a separately constituted hearing, held that there was no relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 1981 and dismissed the unfair-dismissal complaint.
• Industrial Tribunal: declared the teacher unfairly dismissed, treating the reorganisation as an amalgamation and considering that the new governing body should have undertaken any redundancy selection.