Appeal No.	 EAT/768/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 April 1997

Before
HIS HONOUR JUDGE PETER CLARK
MRS M T PROSSER
MR K M YOUNG CBE

(1)  OXFORDSHIRE COUNTY COUNCIL
(2)  THE GOVERNING BODY OF ST PHILIP &
       ST JAMES FIRST SCHOOL	APPELLANTS

MRS P WOODWARD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MISS H WENLOCK
(of Counsel)
Legal Services
Oxfordshire County Council
Chief Executive's Office
County Hall
Oxford
OX1 1ND	
For the Respondent	MR J PHIPPS
(Solicitor)
Oxfordshire Employment Rights Service
Bourton Neighbourhood
Underhill Circus
Oxford
OX3 9LS	

	JUDGE PETER CLARK:     This is an appeal by the employer against a decision of the Reading Industrial Tribunal that the Respondent employee, Mrs Woodward, had been dismissed and was entitled to both a statutory and contractual redundancy payment.  Extended Reasons for that decision are dated 14 May 1996.

	The Respondent commenced employment with the Second Appellant, The Governing Body of St Philips and St James First School, Oxford in September 1986, as a teacher.  There were express terms and conditions of the employment contained in the following documents:

	Under a written Agreement made between the parties and headed “Form of Teacher’s Agreement”; dated 15 June 1994 (“The Agreement”), it was agreed under paragraph 2:

“2.  The Governing Body hereby appoints the Teacher to serve on the staff of the aforesaid School ... from the first day of September 1994 subject to the undermentioned conditions.”

	By paragraph 7:

“7.  The Teacher agrees to serve as a Teacher in the School under the control of the Governing Body and shall exercise her office under the immediate directions of the Headteacher and in accordance with
(b) The School Teachers’ Pay and Conditions Act 1991 and any Order made thereunder.”

	By paragraph 9:

“9(i)  The Teacher shall be employed in part-time service for 0.6 full-time equivalent and exclusively in the capacity of a teacher and shall not be required to perform any duties except such as are connected with the work of a school. ...”

	Under part XI of the “Conditions of Employment of Teachers other than Head Teachers”, incorporated into The Agreement by paragraph 7(b) thereof, it was provided:

“Exercise of general professional duties
37.  A teacher who is not a head teacher shall carry out the professional duties of a teacher as circumstances may require:
37.1  if he is employed as a teacher in a school, under the reasonable direction of the head teacher of that school;

Exercise of Particular Duties
38.1  A teacher employed as a teacher (other than a head teacher) in a school shall perform, in accordance with any directions which may reasonably be given to him by the head teacher from time to time, such particular duties as may reasonably be assigned to him.

Professional duties
39.  The following duties shall be deemed to be included in the professional duties which a teacher (other than a head teacher) may be required to perform:
39.1  Teaching:
In each case having regard to the curriculum for the school:
39.1.2  teaching, according to their educational needs, the pupils assigned to him, including the setting and marking of work to be carried out by the pupil in school and elsewhere.”

	In practice, the Industrial Tribunal found, the Respondent dealt predominantly with children who had special educational needs (Special Needs), although from time to time she covered for other teachers who were ill or on short-term absences.  She also undertook other duties, including reading duties and playground duties.  She did not normally engage in full-class teaching.

	In early 1995 the Governors found it necessary to make budget savings of about £58,000.  It was decided that the provision of special needs teaching would have to be reduced.  The proposal was that instead of teaching special needs for three days a week, the Respondent should teach special needs for one day a week and the remaining two days would be spent on class teaching.  She objected to this alteration in her duties; she was a specialist, trained special needs teacher and derived considerable satisfaction from that valuable function.  On 27 March 1995 she tendered her resignation and contended that she had been constructively dismissed by reason of redundancy.

	The first issue for the Industrial Tribunal was whether or not the Respondent had been dismissed.  That required a determination first as to what was the proper construction of the contract.  That is a question of law.  Secondly, whether the employer was in breach of the contract, and if so, whether that was a fundamental or repudiatory breach entitling the employee to treat the contract as discharged.  That is essentially a question of fact for the Industrial Tribunal.

	The rival contentions of the parties may be shortly stated.  For the employer it was contended that the express contractual term was clear; the Respondent was employed as a teacher, who could be required to carry out such duties as could reasonably be assigned to her by the Head Teacher.  For the employee it was argued that it was necessary to look at the reality of the work which she had in fact performed.  That showed that she was a special needs teacher.  The Tribunal preferred the submission made on behalf of Mrs Woodward, relying on the Court of Appeal decision in Pedersen v Camden London Borough Council [1981] ICR 674.

	It is this first finding by the Industrial Tribunal which is principally challenged by Miss Wenlock on behalf of the Appellant.  She submits that the construction which she advances is clear on the face of the contractual documents.  It is neither necessary nor permissible to look at the way in which the contract was performed in practice as an aid to construction.  The case of Pedersen is distinguishable on its facts.  There, the employee was employed as a bar steward/catering assistant.  It was therefore necessary to look at the primary and additional duties performed under the contract.  Here there is no ambiguity.  The Respondent was employed as a teacher, not a special needs teacher.  

	Mr Phipps argues that the Tribunal reached a permissible conclusion on this question of construction.  He points to various, non-contractual documents, which refer to the Respondent as a Special Needs Teacher.  He submits that the Tribunal was entitled to look at the factual matrix; the Respondent worked predominantly in special needs.  That was her contractual post.

	As a matter of law we prefer the construction contended for by the Appellant.  In our judgment the true construction of this contract was that the Respondent was employed on a part-time contract (0.6 f.t.e) as a teacher.  Under the contract she could be required to perform such duties as might reasonably be assigned to her.  She was not employed under the contract as a Special Needs Teacher.

	During the course of submissions Mr Phipps relied upon the Tribunal’s reference in paragraph 9 of their reasons to a question put to Mr Vallis in evidence, he was a Principal Education Officer with the Appellant County Council, namely would it be within the contract of a teacher of French to require him to teach a different subject, such as Physics.  They record him as saying that it would be within the terms of the contract.  The correct answer to that question, which Miss Wenlock tells us was Mr Vallis’ full answer, is that it depends whether it would be reasonable so to direct.  Unfortunately, the Tribunal did not follow through that analogy when dealing with the case of the Respondent.

	The significance of this error in approach by the Tribunal is clear.  When considering whether or not the Appellant was in fundamental breach of the contract, the Tribunal was looking at the wrong contractual term.  It considered whether the employer was in fundamental breach by taking away two thirds of the Respondent’s special needs duties instead of asking itself whether it was reasonable for the Head Teacher to direct her to spend two out of three days on class teaching.  The correct question was never asked, nor answered by the Tribunal..

	In these circumstances we have concluded that the Tribunal decision cannot stand and must be set aside.  We are satisfied that the proper course is to remit the case to a fresh Industrial Tribunal for rehearing.  It will be for that Tribunal to answer the question which we have posed, based on our construction of the contract.  To that extent the appeal is allowed.

	If the new Industrial Tribunal concludes that the Appellant was contractually entitled to reassign the Respondent’s duties in the way proposed, because it was reasonable so to do, then there will be no breach, no constructive dismissal and no entitlement to either a statutory or contractual redundancy payment.

	Conversely, if such direction is held to be unreasonable and outside the terms of the contract, then it will be for the Tribunal to decide whether that breach went to the root of the contract, entitling the Respondent to treat herself as discharged.  In other words, was she constructively dismissed?

	If so, then it will be for the Tribunal to decide whether that dismissal was by reason of redundancy, applying the approach which we have outlined in Safeway Stores Plc v Burrell [1997] IRLR 200.