Cooke v Highdown School & Sixth Form Centre and Governors

A teacher on the upper pay scale who meets the eligibility requirements is entitled to be considered for further pay progression without making a further application. A tribunal errs if it rejects a contractual pay-progression claim solely because no application was made, without deciding whether the employer discharged its obligation to consider progression.

For contractual sick pay under clause 9.1 of the Burgundy Book, medical evidence that a teacher is unfit because of work-related stress does not necessarily attest that the underlying injury arose out of and in the course of employment. That causal issue remains one for the tribunal on the evidence.

The claimant, a science teacher on UPS1, brought claims for unauthorised deductions and breach of contract. She alleged that the school had failed to progress her to UPS2 and had wrongly reduced and then stopped her sick pay during absence for stress. She also claimed constructive unfair dismissal, relying principally on the handling of her grievance and an email concerning an Occupational Health appointment.

The Reading Employment Tribunal dismissed all claims. It held that the claimant had needed to apply for pay progression, that the medical evidence did not satisfy clause 9.1 of the Burgundy Book, and that the alleged last straws did not breach the implied term of trust and confidence. The claimant appealed.

1. Appeal allowed in part. The Employment Tribunal's rejection of the pay-progression claim was unsafe. The parties agreed that, once a teacher was on the upper pay scale and eligible, no further application was required before the teacher had a contractual right to be considered for progression. The tribunal had instead treated the absence of an evidenced application as decisive.

2. The correct issue was whether the respondent had in fact complied with its obligation to consider the claimant for progression to UPS2. Its findings did not resolve that issue. The pay-progression breach-of-contract and unauthorised-deductions point was therefore remitted to a differently constituted Employment Tribunal.

3. The finding that the claimant had agreed that the pay-progression matter would be addressed on her return to work did not amount to a finding that she had waived a claim for breach of the express contractual obligation. It was, however, material to whether she could rely on the matter as a continuing breach of the implied obligation of trust and confidence. Since pay progression was not identified as a last straw and the findings on the actual alleged last straws were unchallenged, the constructive-dismissal appeal failed.

4. The sick-pay appeal was dismissed. Clause 9.1 required an approved medical practitioner to attest that the injury had arisen out of and in the course of employment. A GP's fit note that the claimant was unfit because of stress at work or work-related stress did not necessarily establish that causal requirement. The tribunal's conclusion was permissible on the evidence.

5. Applying Sinclair Roche & Temperley v Heard [2004] IRLR 763, remittal to a different Employment Judge was proportionate. The claimant was awarded one third of her appeal-fee costs.

• Employment Appeal Tribunal: Appeal allowed in part; the pay-progression issue was remitted to a differently constituted Employment Tribunal.
• Reading Employment Tribunal: Employment Judge Ryan dismissed the claimant's constructive unfair dismissal and unauthorised-deductions and/or breach-of-contract claims in a judgment sent on 24 August 2015.