Kilraine v Lion Academy Trust

A fixed-term employment contract ordinarily expires by effluxion of time on its agreed end date. A general contractual notice provision will not be construed as converting that express fixed term into an open-ended contract without clear words.

A qualifying disclosure requires the disclosure of information, rather than an allegation. The court left open whether repeating an earlier protected disclosure can itself be a separate protected disclosure, where that issue cannot affect liability.

Where a fixed-term contract is not renewed, the tribunal must identify the employer’s reason. A fair assessment showing extremely poor performance can establish that non-renewal was for capability-related reasons, rather than because of protected disclosures.

The claimant was employed as a teacher under a fixed-term contract ending on 31 August 2014. The Employment Tribunal held that the Burgundy Book entitled her to three months’ notice and awarded damages for insufficient notice. It rejected her complaints concerning a seventh alleged protected disclosure and automatic unfair dismissal.

The claimant appealed the notice, protected-disclosure and unfair-dismissal issues. The respondent cross-appealed the notice award, contending that no notice was required because the contract expired on its agreed date. The central issues were the effect of the incorporated notice provision, whether the claimant’s repetition of prior information was a qualifying disclosure, and the reason for the decision not to renew the contract.

1. Appeal dismissed; cross-appeal allowed. The Employment Tribunal erred in awarding damages for notice. The claimant’s fixed-term contract expired on 31 August 2014 in accordance with its express terms. It was not terminated by the respondent.

2. On its true construction, paragraph 4.1 of the Burgundy Book governed termination by notice, not the agreed expiry of a fixed-term contract. It did not convert the agreed one-year term into an open-ended contract requiring notice before the employer could bring employment to an end. Clearer language would have been required for general incorporated terms to override the parties’ specific signed agreement. Alternatively, the documents specifying the end date gave any required notice when the contract was made.

3. The Tribunal was entitled to find that the claimant supplied no new information to the head teacher on 26 March 2014. She repeated the substance of an earlier protected disclosure. Although Employment Rights Act 1996 section 43L(3) treats information already known to the recipient as brought to that person’s attention, it was unnecessary to decide whether repetition could amount to a separate protected disclosure. The Tribunal’s unchallenged finding was that none of the alleged detriments was caused by protected disclosures.

4. The Tribunal was also entitled to reject automatic and ordinary unfair dismissal. The respondent proved that it did not offer further employment because the claimant’s teaching assessment was extremely poor and she failed to secure another role. Its findings fairly addressed the ongoing grievance, disciplinary and capability matters. The principal reason for non-renewal was not protected disclosures.

• Employment Appeal Tribunal: Appeal dismissed and respondent’s cross-appeal allowed in [2018] UKEAT 0194_17_2703.
• Employment Tribunal: Judgment sent to the parties on 9 June 2016. It awarded notice damages but rejected the relevant protected-disclosure and unfair-dismissal complaints.