Birmingham City Council & Anor v Emery (Contract of Employment)

A governing body of a community school may determine that a teacher should cease to work at the school, but it does not thereby terminate the teacher’s common-law contract of employment. Where the teacher is employed by the local authority, termination requires notice from the authority.

The statutory deeming provisions concerning a governing body’s employment powers apply only to the specified employment enactments. They do not make the governing body the employer for common-law contractual rights, including the right to contractual notice. A notice which is communicated too late to expire on the contractual termination date is ineffective for that purpose.

The claimant was a teacher at a community school. Her contract of employment was with Birmingham City Council. The school’s governing body decided that she should cease to work at the school and stated that contractual notice would be given. The local authority then wrote to terminate her employment on 30 April 2012.

The Employment Tribunal held that the notice was received one day too late to terminate the contract on that date. It awarded the claimant the pay due during the contractual notice period ending on 31 August 2012. The local authority and governing body appealed. The central issue was whether the governors’ decision, or events at the governors’ hearing, had already given effective notice terminating the contract.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude that the claimant’s contract had not lawfully terminated until 31 August 2012.

2. Under Education Act 2002, section 35(2), a teacher appointed under a contract of employment at a community school is employed by the local authority. Under the School Staffing (England) Regulations 2009, the governing body decides whether that teacher should cease to work at the school, but the authority must give effect to that decision by terminating the contract on due notice. The governing body’s determination did not itself give notice or terminate the claimant’s contract.

3. The Education (Modification of Enactments Relating to Employment) (England) Order 2003 deems the governing body to be the employer for specified statutory employment rights, including unfair-dismissal rights. Its effect is confined to those enactments. It does not alter the identity of the employer at common law or transfer the authority’s contractual power to terminate employment to the governors.

4. Even assuming that the council officer had delegated authority to terminate the contract, her statements at the governors’ hearing did not amount to a communicated summary dismissal or to effective contractual notice. The correspondence showed that the governors and the authority were instead purporting to follow the statutory procedure. The authority’s letter of 29 February was therefore the notice of termination. It was received on 1 March, too late to give the contractual notice required for termination on 30 April.

5. Geys v Societe Generale, London Branch [2012] UKSC 63 confirmed that an unaccepted wrongful summary termination would have been ineffective. The statutory distinction between the governors’ role for unfair-dismissal purposes and the authority’s role as contractual employer created no basis for a different result. Any wider anomaly was a matter for Parliament.

• Employment Appeal Tribunal: Dismissed the appeal and upheld the Employment Tribunal’s award for the additional contractual notice period.
• Employment Tribunal: In a judgment and reasons dated 11 October 2012, held that notice terminating employment on 30 April 2012 was received too late and awarded £8,104.