Murphy v Slough Borough Council & Ors

For a teacher at a maintained community school with a delegated budget, the governing body is treated as the employer under the Education (Modification of Enactments Relating to Employment) Order 1999 only when the complaint concerns its employment powers. The local education authority remains the appropriate respondent for powers it retains.

The governing body’s broad control of staff conduct and discipline includes deciding whether health-related leave, including paid leave, should be granted. It was therefore the sole respondent to a complaint about refusing paid leave. In assessing reasonable adjustments, financial resources are relevant to whether the statutory duty was breached, rather than solely to subsequent justification.

Mrs Murphy was a teacher at a maintained community school with a delegated budget. Her contract was with Slough Borough Council as local education authority. Because of a congenital heart disorder, she used a surrogate mother and sought paid leave after the child’s birth.

The school’s governing body granted unpaid leave only, relying on the school’s serious budget deficit. Mrs Murphy brought disability-discrimination claims against both the governing body and the local education authority under the Disability Discrimination Act 1995. The employment tribunal and the Employment Appeal Tribunal held that the governing body alone was the proper respondent and that the refusal was justified. The EAT also reversed the tribunal’s conclusion that the treatment was not for a reason related to disability. The appeal concerned the proper respondent and the treatment of financial considerations under the reasonable-adjustments claim.

1. Appeal dismissed unanimously. The governing body was the only proper respondent to this complaint, and the challenge to the justification findings failed.

2. Under article 3 of the Education (Modification of Enactments Relating to Employment) Order 1999, a governing body with a delegated budget is treated as an employer only in the exercise of its statutory employment powers. The local education authority remains the appropriate respondent where the complaint concerns a power it retains. Article 3(1)(b), however, substitutes the governing body for the local education authority where the governing body is exercising its employment powers.

3. The employment tribunal had stated the position too broadly by treating the governing body as employer for all claims under the Disability Discrimination Act 1995. Nevertheless, the result was correct here. Following the broad, purposive approach in Green [2004] EWCA Civ 11, paragraph 22 of Schedule 16 to the School Standards and Framework Act 1998 gave the governing body extensive management powers over staff. Those powers implicitly included granting or refusing health-related leave and deciding whether leave should be paid. The governing body alone made that decision.

4. The local education authority’s refusal to provide contingency funding did not make it responsible for the governing body’s decision. The pleaded complaint concerned refusal of paid leave, and the governing body retained discretion to grant it. A local education authority may be a respondent where its own use, or failure to use, its powers breaches a section 6 duty, but that was not this claim.

5. Where claims are made under sections 5(1) and 5(2), a successful section 5(2) claim requires reconsideration of justification under section 5(1), by reason of section 5(5). There is no rigid sequence of analysis: the point did not arise because no breach of the section 6 duty could be established.

6. The tribunal and EAT wrongly treated the financial factors in section 6(4) as matters solely of justification under section 5(2). Under Collins [2004] EWCA Civ 144, they instead bear on whether there was a breach of the reasonable-adjustments duty. The error was immaterial. The accepted evidence showed that paid leave would materially worsen the school’s precarious finances, so the tribunal could not properly have found a breach.

• Court of Appeal (Civil Division): Dismissed Mrs Murphy’s appeal: [2005] EWCA Civ 122.
• Employment Appeal Tribunal: Upheld the employment tribunal’s rulings that the governing body was the sole proper respondent and that the refusal of paid leave was justified. It reversed the tribunal’s conclusion that the treatment was not for a reason related to disability; there was no cross-appeal on that issue.
• Employment tribunal: Held that the governing body alone was the proper respondent. It rejected the reasonable-adjustments claim and upheld justification for the refusal of paid leave.