Labour & European Law Review Weekly Issue 397 26 November 2014
It is rare for the identity of someone’s employer to be varied without their knowledge. However, the High Court has held in Davies v London Borough of Haringey that the contract of a teacher who had been seconded to the NUT for many years had been varied with the result that she had become a full-time trade union official for the NUT.
Ms Davies started work as an assistant teacher at a community school in Haringey in 1992. In 1997 she was released from her teaching duties for three days a week to enable her to carry out trade union activities, but continued in her role as teacher for the other two days. In 2000 she was released from her teaching duties to work full time for the union.
In July 2009 she wrote to the head teacher saying that she intended to return to her substantive post at the school, but was told that no permanent post was available. Ms Davies did not pursue the issue and heard nothing more from the school until she received a letter in May 2013, stating that her contractual status had changed and she was now an unattached teacher, centrally employed by the Council. She objected, but again heard nothing more until July 2014 when she was suspended from her post for alleged breaches of the Council's code of conduct and social media policy. The complaints made against her did not relate to her teaching.
Issue to be resolved
Ms Davies claimed that the Council had no power to suspend her or take any other disciplinary action against her as her substantive post was that of teacher at the community school. It was therefore in breach of contract.
The school said that after a reorganisation in 2012/13, it had abolished all existing posts. Although it had given staff the chance to apply for posts in the new structure, Ms Davies had not done so.
High Court decision
The judge held that as Ms Davies’ contract had been varied either by express agreement or by the implied conduct of the parties, she was not employed as a full-time teacher at the school at the date of her suspension, but rather as a full-time trade union official.
Even if the governing body had the power to discipline her, there was no legislative provision whereby it was the only body with the power to do so. Firstly, the School Staffing (England) Regulations 2009 (which state that only the head teacher or the governing body of the school could suspend and discipline a member of the school staff) did not take away the Council’s power to discipline staff working in schools.
Secondly, as the regulations existed to enable the governing body to have day to day management powers over people employed at the school, they could not be said to apply to someone who had not worked in the school for 14 years (and might never work there again) and who had not had any direct contact with it for many years.
Thirdly, if the 2009 regulations were not applicable then the school's procedure was not the appropriate one to follow. In any event, the Council had the right to discipline Ms Davies under other legislation, such as the Localism Act 2011 and the Local Government Act 1972.
The judge therefore concluded that Ms Davies fell within the scope of the Council's procedure as she came within the category of "all permanent Council employees", and did not fall within the exceptions relating to staff working in schools.
This case provides useful clarification of the purpose of the 2009 regulations and confirms that, where they apply, the governing body’s powers to discipline an employee working at the school are not exclusive.