Kent County Council v Green

For an employment tribunal claim alleging the constructive unfair dismissal of a community-school employee, the governing body is treated as the employer under the Education (Modification of Enactments Relating to Employment) Order 1999. Its employment powers encompass actions concerning the treatment, conduct and discipline of staff which may result in resignation and alleged constructive dismissal.

Article 6 therefore requires the application to be brought against the governing body. The local education authority, although the contractual employer and ordinarily responsible for an award, cannot be joined against its will. It may elect to apply for joinder. The procedural identity of the respondent should not depend upon prior determination of whether the alleged dismissal was ordinary or constructive.

Mrs Green, a deputy head teacher at a community school, resigned and claimed constructive unfair dismissal after allegedly being marginalised professionally. Kent County Council was her contractual employer, but the school's governing body exercised statutory employment powers.

The Employment Tribunal dismissed the council from the proceedings. The Employment Appeal Tribunal reversed that decision and reinstated it, reasoning that the governing body was treated as employer only when exercising express employment powers and that those powers did not encompass constructive dismissal.

The council appealed. The central issue was whether articles 3 and 6 of the Education (Modification of Enactments Relating to Employment) Order 1999 required a constructive unfair dismissal claim to proceed solely against the governing body, unless the council itself elected to be joined.

1. The appeal was allowed unanimously. The council was to be dismissed from the employment tribunal proceedings, leaving the governing body as sole respondent. Pill LJ gave the principal judgment; Mummery and May LJJ agreed with the outcome.

2. Constructive dismissal under section 95(1)(c) of the Employment Rights Act 1996 arises where an employer commits a significant breach going to the root of the employment contract, or demonstrates an intention no longer to be bound by an essential term, and the employee consequently terminates the contract. The concept is closely linked to ordinary dismissal: Western Excavating (ECC) Ltd v Sharpe [1978] ICR 221 applied.

3. Per Pill LJ, “employment powers” in article 2(2) of the Education (Modification of Enactments Relating to Employment) Order 1999 were not confined to the formal dismissal procedure in paragraph 25 of Schedule 16 to the School Standards and Framework Act 1998. Paragraph 22 conferred broad functions over staff conduct, discipline, capability and related procedures. Conduct undertaken through those powers could create circumstances leading to resignation and a constructive dismissal claim.

4. Article 3 therefore deemed the governing body to be the employer in relation to the conduct alleged. Article 6(2) required the claim to be made and carried on against that body. The council could participate only by exercising its entitlement to seek joinder under article 6(4); it could not be joined against its will.

5. Mummery LJ reached the same conclusion through a broad, purposive construction. There was no discernible procedural reason to distinguish ordinary dismissal from constructive dismissal. Such a distinction would require the tribunal to decide the substantive merits before identifying the proper respondent.

6. May LJ considered the categories in article 2(2) to be a legislative signpost to the subject matter of Schedule 16. The scheme was intended to encompass all forms of dismissal under section 95(1), including constructive dismissal. The merits of Mrs Green's allegation remained for the Employment Tribunal.

1. Court of Appeal (Civil Division): Allowed the council's appeal and restored the Employment Tribunal's decision dismissing the council from the proceedings. The governing body remained the sole respondent.

2. Employment Appeal Tribunal: On 18 March 2003, allowed Mrs Green's appeal and ordered that the council be reinstated as a respondent.

3. Employment Tribunal: On a preliminary issue, held that the governing body was the proper respondent and dismissed the council from the constructive unfair dismissal proceedings.