Davies v London Borough of Haringey

A local authority’s contractual power to discipline an employee is not removed merely because the employee was originally appointed to work at a maintained school. The School Staffing (England) Regulations 2009 confer management powers on a governing body in relation to staff employed or engaged to work at the school, but do not make those powers exclusive or withdraw the authority’s contractual powers. The contractual position may be varied by express agreement or by the parties’ conduct. Failure to provide an updated written statement records a statutory breach but does not prevent the variation taking effect.

The claimant was employed by the defendant local authority as a teacher at a community school. From 2000 she was released full-time to undertake trade union duties and did not work at the school thereafter. In 2014 the authority suspended her under its disciplinary procedure in respect of allegations unrelated to teaching.

She sought a declaration that only the school could discipline or suspend her, relying on the contractual history, the 2009 Regulations and the Education (Modification of Enactments Relating to Employment) (England) Order 2003. The central issue was whether the authority or the school’s governing body had power to take disciplinary action.

1. The claim was dismissed. The defendant had power to suspend the claimant and take disciplinary action against her.

2. The claimant’s original contract had been varied. In 2000 the parties agreed that she would cease teaching at the school and undertake full-time trade union duties. The arrangement continued for many years. It therefore operated as an express or implied variation, notwithstanding the absence of a replacement written statement.

3. The failure to provide written particulars of the change did not invalidate the variation. It gave rise only to the statutory remedy under section 11 of the Employment Rights Act 1996.

4. The 2009 Regulations were directed to the governing body’s day-to-day management of persons employed or engaged to work at the school. Regulation 19 did not state that the governing body’s power to suspend was exclusive. Regulation 19(3) dealt only with termination of a suspension imposed under regulation 19(1).

5. The regulations did not apply to the claimant on the relevant contractual analysis because, since 2000, she was not employed at the school as a teacher. In any event, the regulations did not remove the authority’s contractual disciplinary power.

6. The 2003 Order did not alter the parties’ contractual rights. It treated the governing body as the employer for specified statutory employment claims where it exercised employment powers under the school staffing regulations. Since those regulations did not apply, the Order did not assist the claimant. Murphy v Slough Borough Council was distinguishable because it concerned a teacher employed to work at the school and did not consider whether the authority also retained a power to suspend.

7. The claimant fell within the defendant’s procedure for permanent Council employees and outside its exception for staff working in schools.