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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Johns v Elm Park School [2002] UKEAT 0578_02_0502 (5 February 2002) URL: https://www.bailii.org/uk/cases/UKEAT/2002/0578_02_0502.html Cite as: [2002] UKEAT 578_2_502, [2002] UKEAT 0578_02_0502 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE J McMULLEN QC
MR A E R MANNERS
MR H SINGH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR OLIVER HYAMS (Of Counsel) Instructed by: Messrs Elliotts Solicitors 25 The Mall Clifton Bristol BS8 4JG |
For the Respondent |
MS IJEOMA OMAMBALA (Of Counsel) Instructed by: South Gloucester Council Legal Services Castle Street Thornbury BS35 1HF |
JUDGE McMULLEN QC
The appeal
The facts
.
"I am writing to inform you that during my illness I wish all contractual discussions to be conducted through my professional association A.T.L. Please contact Veronica Rodriguez and the addresses given.
Yours sincerely
Sue Johns"
It is accepted by Mr Hyams today that that is a grant of actual authority by the Applicant in her position as principal to her agent either Miss Rodriguez or Mr Main, an executive member of ATL to conduct all contractual discussions on her behalf.
"She has however got a rather fixed idea in her mind that she now cannot cope with returning to teaching. I get the impression that she is looking to be medically retired and I suspect I shall be asked for a report on this in weeks to come."
"This was discussed and it was agreed between the respondent and on behalf of the applicant by the legal department of ATL that the applicant's employment would terminate on 31st October 1999 with a tax free termination payment. As a result of those discussions a letter, the contents of which were agreed with the Union, was sent to the applicant."
It is necessary to refer to the details of this letter. It is from South Gloucestershire County Council, signed by Mr Holder saying this:
"I am writing further to my letter dated 8 October 1999 concerning your long term absence from Elm Park Primary School, and also referring to the most recent report received from Dr Yarnley, Occupational Health Physician.
In view of Dr Yarnley's opinion that it will be a further six months before a return, even in a part-time capacity can be explored , the Governing Body of Elm Park School consider that your post as Teacher can no longer be kept open and it is proposed to terminate your employment.
You will be aware from the ill health procedures "Managing Prolonged Sickness Absence", forwarded to you earlier in the year that, where it is proposed to dismiss the employee, a Governors' panel must consider the case at a meeting to which you would be invited together with your representative.
From discussions I have held with John Main (ATL), I understand that you do not wish to make representation to the panel and it is therefore proposed to terminate your contract of employment on the grounds that you are incapable of undertaking the duties of your post due to ill health.
I would propose to terminate your contract with effect from 31 October 1999 and, in recognition of your service with South Gloucestershire Council, make you a tax-free termination payment in the sum of £6,005.88 in compensation for loss of office. This payment will be paid on or before 14 November 1999.
I am sorry that your period of employment with South Gloucestershire Council has come to an end in this way and I hope that your health improves in the future.
Will you kindly acknowledge receipt of this letter using the copy provided."
"I acknowledge receipt of the letter dated 26 October 1999 giving formal Notice of Dismissal from my teaching post at Elm Park Primary School with effect from 31 October 1999."
That letter therefore expands on the Tribunal's finding that the Applicant did not wish to make representations to the Governors. Such a representation would only be necessary if there were tp be consideration by the Governors pursuant to the statutory procedure as to whether or not the employment should be terminated on the grounds of ill health.
Conclusions on the issues
Ground 1: the construction of the letter
Ground 2: the context of the letter
"First, in respect of contracts and contractual notices the contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant. But admissibility is not the decisive matter. The real question is what evidence of surrounding circumstances may ultimately be allowed to influence the question of interpretation. That depends on what meanings the language read against the objective contextual scene will let in. Thirdly, the inquiry is objective; the question is what reasonable persons, circumstanced as the actual parties were, would have had in mind."
"We preferred the respondent's witnesses evidence to that of the applicant, because the medical evidence is that to the applicant's concentration was affected by her illness and in her evidence to the tribunal she accepted that her state of mind at the relevant time was such that she could not be sure of exactly what was said. We therefore concluded that the applicant's recollections of events may not be accurate. On the other hand the respondent's contentions were supported by the documentary evidence, including notes made on the applicant's file held by her union representatives and in part in the document containing Mr Main's answers to questions put to him."
Ground 3: authority
"5. The illness has meant that I have had to rely upon my friends. In addition I asked my Trade Union to assist me by providing advice and to act as an intermediary.
6. I have never instructed the Trade Union to negotiate the termination of my employment with the Respondent. If ATL has negotiated on my behalf, it has done so without my knowledge or authority. There is a copy of the Trade Union file. I do not know Janet Joule the ATL Solicitor. I have never heard of her or spoken to her. I have never provided her or the Trade Union with instructions. I have not given instructions to a third party acting as an intermediary. My desire was to continue teaching at Elm Park School.
7. I was advised by a Union Representative, John Main. I asked John Main to act for me and to give me advice. I did not authorise John Main to negotiate the termination of my Contract with the Respondent."
Ground 4: adequate Reasons
Ground 5
New Grounds
Secondary findings
"Further we are satisfied that in any circumstances where a similar situation arose with an employee who was not disabled then the outcome would have been the same."
It further concluded that such action would have been justified.