Murphy v Slough Borough Council

The Court of Appeal determined that, for claims under the Disability Discrimination Act 1995 brought by a teacher at a maintained community school with a delegated budget, the governing body is the proper respondent where the complaint relates to the exercise of the governing body’s statutory employment powers. The court construed the School Standards and Framework Act 1998 (notably Schedule 16 and paragraph 22) together with the Education (Modification of Enactments Relating to Employment) Order 1999 and concluded that those instruments treat a governing body as an employer when it exercises its employment powers.

The court held that where the act complained of (here refusal of paid leave) is within the governing body’s employment powers, the local education authority is not liable as employer merely because the underlying contract of employment is with the local education authority. On the facts, the Court of Appeal agreed with the tribunals that the governing body alone was the correct respondent and that the refusal of paid leave was justified, having regard to the school’s financial position and the section 6(4) factors of the DDA.

Background and parties. The appellant, a teacher employed at Langleywood School, Slough, sought paid maternity leave after a child was born to a surrogate mother. Her contract was with the local education authority (Slough Borough Council) but the school was a maintained community school with a delegated budget and a governing body which exercised extensive staffing powers.

Nature of the claim and relief sought. The appellant brought claims under the Disability Discrimination Act 1995: less favourable treatment under section 5(1) and failure to make reasonable adjustments under section 5(2) read with section 6. The claim named both the governing body and the LEA as respondents and sought relief in respect of the refusal to grant paid leave.

Procedural posture. The matter was first before an employment tribunal, which found the governing body to be the correct respondent and, on justification, upheld the refusal of paid leave. The Employment Appeal Tribunal upheld those findings in large part, and the case came to the Court of Appeal on the issues of the correct respondent and justification.

Issues framed by the court.

• Whether the governing body alone, the LEA alone, or both could properly be respondents to a DDA claim when the teacher’s contract is with the LEA but the governing body exercises significant employment powers.
• Whether the governing body’s refusal of paid leave was justified under section 5(3) (and, for the s.5(2) claim, whether the s.6 duty was breached and whether any failure was justified).

Reasoning and conclusions. The court analysed the 1998 Act (including Schedule 16 and paragraph 22), and the 1999 Order (Articles 2, 3 and 6). It concluded that the 1999 Order operates to treat a governing body as an employer only in respect of exercise of its employment powers; where a governing body has the relevant power, Article 3(1)(b) effects substitution so that employment in relation to that exercise is to be treated as employment by the governing body. The governing body was found to have the implied power to grant or refuse leave (including paid maternity leave) under its broad staff-management powers (paragraph 22 and the delegated budget provisions). The LEA was not liable simply because it refused extra funding from its contingency fund; the governing body retained the discretion and was the proper respondent for the complaint about refusal of paid leave.

On justification, the Court accepted that the tribunals had regard to the school’s precarious finances and the section 6(4) factors (including the employer’s financial resources). Although the tribunals might have folded the s.6 analysis into the justification inquiry, the Court considered that, on the facts, there would have been no breach of s.6 and that the Governing Body’s decision was a material and substantial reason justifying its conduct. The appeal was dismissed.

Appeal dismissed. The court held that under the Education (Modification of Enactments Relating to Employment) Order 1999 and the School Standards and Framework Act 1998 a governing body of a maintained school with a delegated budget is to be treated as the employer only in relation to the exercise of its statutory employment powers; where the act complained of (refusal of paid leave) fell within those powers the governing body (not the LEA) was the correct respondent. On the facts the tribunals were correct to find justification for refusal of paid leave, taking into account the school’s financial position and the section 6(4) factors, so the appeal was dismissed.

Appeal to the Court of Appeal from the Employment Appeal Tribunal (EAT). The employment tribunal initially found the governing body to be the proper respondent and, applying justification, upheld the refusal of paid leave. The EAT (Silber J.) reversed the tribunal on the less favourable treatment finding but upheld the tribunal’s conclusions on the proper respondent and on justification. The appeal from the EAT was heard in the Court of Appeal and dismissed (this judgment: [2005] EWCA Civ 122).