J Beattie and Others v. Leicester City Council

Whether an implied agreement exists under Regulation 24 of the School Staffing (England) Regulations 2003 is determined by ordinary contractual principles. The statutory presumption is that support staff at voluntary-aided schools are employed by the governing body. That presumption may be displaced by an express or implied agreement that the local education authority is the employer. An implied agreement cannot be established merely by showing a factual substratum from which employment by the authority might be inferred. The circumstances must objectively require, or sufficiently explain, the parties’ conduct by reference to such an agreement. An Employment Tribunal’s factual conclusion is open to appellate interference only for an error of law or perversity.

The claimants were support staff employed at voluntary-aided schools. They brought equal pay claims against Leicester City Council, the relevant local education authority, seeking to rely on comparators employed by the Council.

The Council contended that the governing bodies were the employers. The claimants argued that the Council and the governing bodies had impliedly agreed, under Regulation 24 of the School Staffing (England) Regulations 2003, that the Council would employ them. Following a preliminary hearing, the Employment Tribunal found that no such agreement existed and held that the equal pay claims could not proceed. The claimants appealed, and the Council cross-appealed on the contractual character of a Regulation 24 agreement.

1. Appeal dismissed. The claimants had not established any error of law in the Employment Tribunal’s conclusion that they were employed by the governing bodies rather than Leicester City Council. The cross-appeal was not determined and no order was made on it.
2. Section 36(2) of the Education Act 2002 creates a statutory presumption that staff appointed to work under a contract of employment at a voluntary-aided school are employed by the governing body, subject to regulations made under section 36(4). Regulation 24 permits the governing body and the authority to agree that support staff appointments should be made by the authority.
3. In deciding whether a Regulation 24 agreement is implied, ordinary contractual principles apply. The relevant question is whether the parties’ conduct is objectively explicable only, or sufficiently explained, by an agreement between the authority and the governing body that the authority assumed the role of employer. A mere factual substratum supporting an inference of employment by the authority is insufficient.
4. The Council’s issuing of employment contracts, payroll documents, tax documents and statements of particulars was capable of being explained by its provision of employment administration services to the schools. The Employment Tribunal was entitled to take account of the Council’s later statement that it was not the employer as part of the overall factual matrix, while recognising that the agreement had to be assessed objectively at the time of appointment.
5. The evidence did not lead inexorably to the conclusion that the statutory presumption had been rebutted. The Tribunal’s conclusion was permissible on the facts and was not legally perverse under the approach in Yeboah v Crofton [2002] IRLR 634.

• Employment Appeal Tribunal: The claimants’ appeal from the Employment Tribunal’s preliminary decision was dismissed. The cross-appeal was left without a final order.