Kent County Council v Green

The Court of Appeal held that, for community schools with delegated budgets, the Education (Modification of Enactments Relating to Employment) Order 1999 (the "1999 Order") must be read so that claims of constructive unfair dismissal under section 95(1)(c) of the Employment Rights Act 1996 fall within the "employment powers" attributable to a governing body under Article 2(2) and Article 3(1) and so are to be brought against the governing body pursuant to Article 6(2).

The court rejected the Employment Appeal Tribunal's narrower construction which would have confined the 1999 Order to dismissals effected by paragraph 25 Schedule 16 determinations. The judges applied a purposive construction of Articles 2, 3 and 6 and treated "discipline" and other staffing powers in Schedule 16 (notably paragraph 22) as embracing conduct by a governing body that could give rise to a resignation relied on as constructive dismissal. As a result the local education authority could not be compelled to be a respondent to the Employment Tribunal proceedings against its will.

Background and procedural posture

The respondent, Mrs Diane Green, a deputy head teacher of a community school with delegated budget, claimed constructive unfair dismissal and brought proceedings in an Employment Tribunal. The ET at Ashford conducted a preliminary issue hearing and dismissed the local education authority (Kent County Council) from the proceedings, treating the governing body as the proper respondent. The Employment Appeal Tribunal (His Honour Judge Ansell) allowed an appeal and ordered that the local education authority be reinstated as a party. The council appealed to the Court of Appeal.

Nature of the claim and relief sought

• The respondent alleged constructive dismissal and sought the remedies available for unfair dismissal under Part X of the Employment Rights Act 1996, specifically under section 95(1)(c).

Issues framed

1. Whether, by virtue of the 1999 Order (and in particular Articles 2, 3 and 6) a governing body of a community school with delegated budget is the appropriate respondent to an Employment Tribunal claim alleging constructive unfair dismissal.
2. Whether the local education authority can be joined as a respondent to such proceedings against its will.

Court’s reasoning

The court analysed Article 2(2)'s definition of "employment powers" (appointment, suspension, discipline and dismissal) and Article 3(1)'s deeming provisions which treat governing bodies "acting in the exercise of their employment powers" as employers for the enactments listed in the Schedule, which include Part X of the Employment Rights Act 1996. The judges considered Schedule 16 (and its paragraph 22 dealing with discipline and internal procedures) and concluded that exercises of such employment powers may produce conduct by the governing body that gives rise to a resignation relied on as constructive dismissal.

The court rejected a strict textual division that would treat constructive dismissal as necessarily distinct from dismissal for the purpose of Article 6. Such a distinction would produce impractical procedural consequences and a paradox whereby the tribunal would have to decide the substantive question of whether there was constructive dismissal before answering the procedural question who is the proper respondent. Applying a broad, purposive construction of the 1999 Order in its procedural context, the court held that the governing body is the proper respondent to constructive unfair dismissal claims and that the local education authority cannot be forced to be joined against its will (though it remains liable for awards except reinstatement by virtue of Article 6(3)).

Subsidiary findings and practical observations

• The court noted the practical interest of both parties, including the local education authority's concern about costs if routinely made parties and claimants' need for certainty about the correct respondent.
• All three members of the court agreed in the result: the appeal was allowed and the local education authority should be dismissed from the action as a compelled respondent.

Appeal allowed. The Court of Appeal concluded that, under the Education (Modification of Enactments Relating to Employment) Order 1999 (Articles 2, 3 and 6) and the staffing provisions in Schedule 16 to the School Standards and Framework Act 1988 (notably paragraph 22), allegations of constructive dismissal under section 95(1)(c) of the Employment Rights Act 1996 fall within the employment powers of a governing body and therefore the governing body is the proper respondent; the local education authority cannot be joined as a party against its will.

Employment Tribunal at Ashford (decision dismissing the local education authority as a respondent; extended reasons sent 17 April 2002); Employment Appeal Tribunal (His Honour Judge Ansell) allowed an appeal on 18 March 2003 and ordered the local education authority to be reinstated as a party; Court of Appeal ([2004] EWCA Civ 11) allowed the council's appeal and restored the Employment Tribunal's decision to dismiss the local education authority as a compelled respondent.