Butt v Bradford Metropolitan District Council

Under the Education (Modification of Enactments Relating to Employment) (England) Order 2003, the governing body of a school with a delegated budget is treated as the employer for claims relating to the exercise of its employment powers. The relevant question is whether the impugned acts are factually connected with those powers, not whether they were performed by the governing body or the local authority. Acts forming part of the background to possible suspension, discipline or dismissal may therefore fall within the Order. A complaint about blocking a pay award does not fall within the Order merely because it may relate to conduct or capability. An aiding claim under section 33 of the Race Relations Act 1976 may be an abuse of process where it requires findings of unlawful discrimination against a primary discriminator whose claims have been settled and who is no longer a party.

The appellant, a head teacher employed at a community school, brought discrimination claims against the local authority, the school governors and Serco. Her claims against the governors and Serco were compromised without admissions of liability. The Employment Tribunal struck out some claims against the local authority on the basis that they related to the governors’ employment powers, but allowed other allegations to proceed. It also struck out a claim under section 33 of the Race Relations Act 1976 alleging that the local authority knowingly aided unlawful acts by the governors.

The appellant appealed against the strike-outs and the local authority cross-appealed against the claims allowed to proceed. The central issues were the proper scope of the governors’ employment powers and whether the section 33 claim could fairly continue after settlement with the alleged primary discriminators.

1. Employment powers. The legislation creates a duality of employer. The local authority remains the contractual employer and paymaster, but the governors exercise most employment powers and are treated as the employer for Tribunal proceedings. Following the broad and purposive approach in Green and Murphy, the question is whether the acts complained of are factually connected with the governors’ employment powers. It is immaterial that the acts or statements were made by the local authority rather than the governors.
2. Complaints that staff were encouraged to complain about the head teacher, that complaints were withheld, and that material was gathered with a view to disciplinary action were steps towards possible suspension, discipline or removal. They therefore fell within the Modification Order and were struck out against the local authority. The Employment Judge had drawn an illogical distinction between those allegations and the letter reporting concerns about performance.
3. The allegation that a pay award was blocked was properly allowed to proceed against the local authority. The Modification Order did not apply to the relevant provisions of the Employment Rights Act 1996 concerning unauthorised deductions from wages, and the refusal to implement a pay award was not shown to fall within the governors’ employment powers.
4. The claims concerning threats to secure suspension, resignation of the investigator and the financial investigation related sufficiently to suspension, conduct or discipline and were properly struck out against the local authority. A claim concerning a letter from the local authority could also have been framed as arising under its statutory duties under the School Staffing (England) Regulations 2003, in which event the appropriate forum would have been the County Court.
5. The section 33 claim was properly struck out. It would require the Tribunal to determine whether the governors had committed unlawful discriminatory acts, although the governors had settled the claims, made no admissions, were no longer parties and were unlikely to participate or call evidence. That created overwhelming unfairness and made continuation a complete abuse of process. The Tribunal did not need to decide whether supplying information could constitute aiding under section 33.

The cross-appeal was allowed in relation to allegations 54, 55 and 56. The remaining appeal was dismissed.

• Employment Appeal Tribunal: Allowed the cross-appeal concerning allegations 54, 55 and 56, dismissed the remaining appeal, and upheld the strike-out of the section 33 claim.
• Employment Tribunal: Employment Judge Grazin, sitting at Leeds, struck out allegations 57, 59, 62 and 64 against the local authority, allowed allegations 54, 55, 56 and 58 to proceed, and struck out the section 33 claim.