Trade unionist fails in High Court bid to stop council disciplinary action

A teacher who has worked for 14 years full-time on trade union activities has lost a High Court battle over whether a local authority could take disciplinary action against her.

The claimant in Davies v London Borough of Haringey [2014] EWHC 3393 (QB) started her employment with the London Borough of Haringey in June 1992 as an assistant teacher at a community school maintained by the authority.

In 1997 she was elected as the Deputy Divisional Secretary of the National Union of Teachers for Haringey. For three days each week she carried out trade union activities and for the other two days she continued to work as a teacher.

In April 2000 Mrs Davies was released from her teaching duties to carry out her trade union activities full time. She successfully stood for re-election in the Deputy Divisional Secretary post (or that of Divisional Secretary) every year since and the arrangement whereby she was released full time from her teaching duties continued.

By letter dated 17 July 2014 Haringey suspended the claimant from her post in accordance with the council's disciplinary procedure.

The suspension had the effect of preventing the claimant from working as Divisional Secretary of the union and representing its members in the defendant borough.

The grounds for suspension alleged breaches of Haringey’s Code of Conduct and Social Media Policy. The complaints made against her did not relate to her teaching.

Mrs Davies claimed that the council had no power to suspend her or take any other disciplinary action against her.

At issue in the case was whether Haringey had the right to subject the claimant to disciplinary action or whether only the school had the right to do so.

The parties were agreed that there were only two potentially applicable disciplinary procedures (one being the school's, the other being the defendant's); there was no third procedure; one of the two procedures applied to the claimant.

It was also common ground that the court was not concerned with the merits of the decision to suspend the claimant.

The claimant’s case was that she was employed to work at the school, that position had not changed and so exclusive power to suspend her lay with the school. The applicable disciplinary procedure remained the school’s, she argued, and the purported suspension, applying the wrong procedure, was in breach of contract.

But Mr Justice Supperstone ruled that the claimant's original contract of employment had been varied either by express agreement or impliedly by the conduct of the parties, as a result of which Mrs Davies was not at the date of her suspension (and is not) employed by Haringey as a full-time teacher at the school.

He added that the council’s failure to update her particulars of employment merely gave her a statutory remedy.

The judge found that there was no legislative provision that had the effect that only the governing body of the school might discipline the claimant.

He reached this conclusion for five reasons:

1. The School Staffing (England) Regulations 2009 did not take away the defendant's power to discipline staff at schools.
2. He accepted a submission from Haringey’s QC (Peter Oldham of 11KBW) that the purpose of the 2009 Regulations was to enable the governing body of the school to have day-to-day management powers over those employed or engaged to work in the school. It was a power that enabled the governing body to run the school. “The claimant has not worked at the school for 14 years, and even assuming there is work for her to do at the school, she may never work there in the future. She has not been subject to directions from any head teacher at the school since 2000. There is no direct evidence of any contact between her and the school between 2000 and 2007. Since 2007 any contact has related to her pay arrangements and whether she had a right to return to the school. In any event the majority of written communications was between her and the defendant.”
3. Even if the application of the 2009 Regulations depended on the contractual position of the parties, they did not apply in the present case as the claimant's contract of employment had been varied so that since 2000 she had not been employed at the school as a teacher, but as a full-time union representative.
4. If the 2009 Regulations did not apply then the school's procedure was not the applicable procedure.
5. The Education (Modification of Enactments Relating to Employment) (England) Order 2003 did not have the effect for which the claimant’s QC contended. The Order had no effect on the parties' contractual rights. The Schedule set out statutory causes of action that the employee could use before an employment tribunal. In recognition of the fact that in community schools the governing body rather than the true employer was likely to be the real decision maker, the Order allowed the tribunal to proceed as if, in such claims, the governing body were the employer. The Order, Haringey’s QC submitted, and the judge agreed, did no more than that. In any event the Order had no application in the present case.

The judge said he considered that the claimant fell within the scope of Haringey’s procedure as she was within the category of "all permanent council employees", and did not fall within the exceptions which relate to staff working in schools.

He concluded that the council did have the power to suspend the claimant and take disciplinary action against her.