This week’s post is a guest piece by Luke Ainsworth from Berg, our legal experts on TheSchoolBus.
Case Report: Davies v London Borough of Haringey
High Court finds that a teacher is subject to the local authority’s disciplinary procedure, not the school’s.
In the case of community schools, do you know who is entitled to take disciplinary action against teachers employed or engaged to work in the school – is it the board of governors or the local authority? In a very recent case (decided at the beginning of October 2014) the High Court found that it was the local authority’s disciplinary procedure that applied to a teacher who had spent the last 14 years working full-time as a trade union official rather than as a teacher in her school.
The case is Davies v London Borough of Haringey and is an example of quite an unusual set of facts, which the Court found to be as follows:
Ms Davies was employed by the London Borough of Haringey (“Haringey”) in 1992 as a full-time qualified assistant teacher, at a community school maintained by Haringey (the “School”). In summary, her contract of employment was with Haringey and she was employed to work in the School. From 1997, she was released from her teaching duties for three days per week in order to carry out her duties as an elected officer of the National Union of Teachers, but she continued to perform her teaching duties on the other two days of the week. From 2000 onwards, she was released from her teaching duties full-time in order to carry out her trade union activities.
In July 2014, Haringey (not the School) suspended Ms Davies for alleged breaches of its code of conduct and social media policy. Ms Davies argued that only the School (through its board of governors) had the power to do this – not the local authority.
There are regulations in force (the School Staffing (England) Regulations 2009 – the “Regulations”) which state that a school’s governing body “must establish procedures for the regulation of the conduct and discipline of staff at the school” and that the governing body “may suspend any person employed……to work at the school…” Ms Davies tried to rely on these Regulations to argue that it was the School’s disciplinary procedure that applied to her, not Haringey’s, and therefore only the School’s governing body which could suspend her.
However, the Judge found that: (a) the Regulations did not take away the local authority’s power to discipline staff at schools; and (b) the purpose of the Regulations was to enable the governing body of a school to have day-to-day management powers over people employed or engaged to work in that school; and (c) Ms Davies had not taught at her School since 2000 and only had very minimal contact with the School at all during that time (the majority of her communication being with Haringey).
The Judge decided that the Regulations did not apply to the situation, and that anyway Ms Davies’ contract of employment with Haringey had been varied, either by express agreement or by conduct over time, so that she was no longer employed at the School as a teacher, but was employed as a full-time union representative.
Ms Davies also argued that it was only the board of governors that had the power to discipline her because of the Education (Modification of Enactments Relating to Employment) (England) Order 2003. This Order says that where the Regulations refer to the “employer” it includes the governing body “acting in the exercise of its employment powers as if that governing body had at all material times been such an employer”.
However Ms Davies lost this argument too, because the Judge held that the 2003 Order only allows employment tribunals in certain cases to proceed as if the governing body was the employer. This is to acknowledge that in community schools the governing body is likely to be the real decision maker (as opposed to the true employer – the local authority). It didn’t actually apply to Ms Davies’ situation.
So, Ms Davies was within the scope of Haringey’s procedure, not the School’s. The Judge considered that she fell within the category of “all permanent council employees” and did not fall within the exceptions relating to staff working in schools. Therefore, Haringey was entitled to suspend Ms Davies and it was Haringey’s disciplinary procedure that applied to her.
This is quite a technical area, and if schools are in any doubt about which procedures apply to their teachers, or other people engaged by local authorities to work in the school (or, indeed, not in the school), the best thing to do is to seek legal advice.
You can find more legal advice from Berg on TheSchoolBus. Guidance is available on employment checks, disciplinary issues, TUPE, admission, exclusions and much more.
(The information and opinions contained in this blog are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this blog.)