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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Camurat v Thurrock Borough Council [2014] EWHC 2482 (QB) (22 July 2014) URL: https://www.bailii.org/ew/cases/EWHC/QB/2014/2482.html Cite as: [2014] EWHC 2482 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Mr Jean Dominique Melik ![]() ![]() |
Claimant |
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- and - |
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Defendant |
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Jonathan Auburn (instructed by Council Solicitor Thurrock
Council) for the Defendant
Hearing dates: 2nd - 4th July and 8th July
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Crown Copyright ©
Sir Colin Mackay:
The Background
The Compromise Agreement
"The terms set out in the Agreement constitute the entire Agreement between the parties and are without admission of liability on the part of the employer".
At Clause 9 the parties agreed to keep confidential the circumstances leading to this inclusion of this agreement and the terms of it.
"Any written reference which any third party may request the Employer to give in relation to the Employee will be in the terms set out in Schedule 2. Any reference given orally will be consistent with the terms and spirit of the agreed reference. This Clause is subject to the proviso that the employer will cease to be obliged to provide a reference, whether written or oral, in the agreed terms if after the signing of this agreement new facts come to the Employers attention which make the agreed reference substantially and materially incorrect"
"During his employment is has been necessary on occasions to provide MrCamurat
with additional advice as regards his interaction with some pupils.
In September 2008 a governors' disciplinary panel issued MrCamurat
with a first and final written warning for grappling with a pupil whilst trying to confiscate a mobile phone. This warning expires on 9 September 2010".
The Chronology
"We have information relating to an incidents [sic] that he has been involved in while working as a teacher. The information relates to an alleged incident that occurred on 26 January 2005 it is alleged that whilst working as a teacher at the Aveley School he assaulted a 12 year old female pupil. There are also mentions of previous incidents involving MrCamurat
and pupils of the school… would you be able to supply the details of any enquiry or meetings that were held in relation to these allegations".
"In is my opinion as the Local Authority Designated Officer that MelikCamurat
should not be working with children and young people".
She added this at the request of Mr Jones. She had not volunteered this chronology to the police and said she would not have produced it if she knew that it would effectively be reproduced in the ECRC. She did not know that they had done that until the following December when she was shown it for the first time. Neither she nor anyone else in the Local Authority had been shown the ECRC in draft.
"There was no further action taken by Essex Police in relation to either incident as there was insufficient evidence and neither victim was willing to attend court".
That if anything was a more favourable description of the result than that which appeared in the chronology.
The Statutory Framework
A) By the Education Act 2002 Section 175 to ensure that
"…functions conferred on them as a Local Education Authority are exercised with a view to safeguarding and promoting the welfare of children".
B) By the Children Act 2004 Section 10(1) (b) and (4) (b), as a Children's Service Authority to make arrangements to promote co-operation between it and the Police Authority and the Chief Officer of Police.
C) By Section 11(1)(a) and (h), and (2)(a) both the Local Authority and the Police Authority -
"…must make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children".
Therefore the defendant in providing the disclosure it did was acting under the requirements of a statutory duty.
(1) A Local Authority must provide [ISA] with any prescribed information they hold relating to a person if the first and second conditions are satisfied.
(2) The first condition is that the Local Authority thinks - …
(c) That the harm test is satisfied.
(3) The harm test is that the person may -
(a) Harm a child…
(b) Cause a child … to be harmed
(c) Put a child … at risk of harm
(4) The second condition is that the Local Authority thinks –
(b)…That [ISA] may consider it appropriate for the person to be included in a barred list.
"…the threshold for inclusion in the ECRC is subjective and very low".
Was the Chronology Misleading/Unfair/Partial?
"MC pushed and grabbed a pupil. Pupil was being disruptive. He was named and said to be known to be disruptive there was negative answers under MPM and police involvement and the outcome is described as "referred back to school".
The Causes of Action: Contract, express term
Contract: Implied Terms
"… The question for the court is whether such provision would spell out in express terms what the instrument read against the relevant background would reasonably be understood to mean".
He said that earlier cases on the implication of a term were -
"..best regarded not as a series of independent tests which must each be surmounted, but rather as a collection of a different ways in which judges try to express the central idea that the proposed implied terms must spell out what the contract actually meant… (paras 21 and 28)"
"I fear that without some certainty of continued appropriate employment he may have little option than to decline the CA offer and return to Belhouse Chase with all the subsequent outstanding issues within the school".
"I understand the difficulties facing Melik but unfortunately he has to recognise and accept that these have been brought about as a result of his own behaviour".
That was the outcome of the negotiations. He was being told that he did have difficulties ahead of him due to the terms of the reference but that it had to remain in those terms and, as Mr Auburn put it, accurately if rather brutally, that the defendant's offer was "as good as it gets for him". All that seems to me to be entirely inconsistent with the implication of the term that the claimant proposes.
Breach of Contract – Ultra Vires
Misrepresentation
"4. Did D…represent that (a) any safeguarding disclosure or (b) any disclosure to a third party, including the police and ISA would be in the spirit of the agreed reference
5. Was C induced to enter into the compromise agreement by such a representation?
6. If such a representation was made was it false. Did D … intend not to abide by any such representation?
7. Did any misrepresentation by D cause C loss?"
The claimant lay stress on the submission that this was a "relational contract" as defined in Yam Seng PTE Ltd v
International Trade Corp Ltd [2013] 1AllER 1321 . Leggat J stated that under English law a duty of good faith was implied by law as an incident of certain contracts including contracts of employment, and he continued (at 142) -
"Such relational contracts as they are sometimes called may require a high degree of communication cooperation and predictable performance based on mutual trust and confidence and involved expectation and loyalty which were not legislated for in the express terms of the contract but are implicit in the parties understanding and necessary to give business efficacy to the arrangement".
He gave examples from the commercial field, such as joint venture agreements, franchise agreements and long term distributorship agreements and it has been held that an employment relationship is one such example. In Gibb v
Maidstone and Tunbridge Wells [2010] IRLR 786 it was stated that this heightened duty between employer and employee could apply to the pre- contractual negotiations of a compromise agreement.
Duty of Care in Negligence
"48…The statutory context in which the Chief Officer was obliged to operate is important. The statutory purpose of ECRCs is to provide a degree of protection to vulnerable young people generally. The Chief Officer acts pursuant to a statutory duty. In so acting he does not assume a responsibility which the statute has not obliged him to undertake. He had no choice….There are no special facts in this case from which the court can conclude that, apart from the statutory duty, this particular Chief Officer is to be taken to have assumed responsibility to Mr Desmond in particular".
Malicious Falsehood
"Gross and unreasoning prejudice may have led him to utter them recklessly whether they were true or false but if he believes the truth of what he said can he at the same time be said to be reckless of the truth or falsity of his statements? May be that others with more judgment and more wisdom would not have formed the same belief, but if, in fact, he believes what he said he cannot at the same time, in my opinion, be reckless whether it is true or false. But such recklessness falls short of deliberate falsehood. But such recklessness, not minding or caring whether it be true or false, whether it arises from anger or unreasoning prejudice or from some other cause, is not consistent with belief in the truth of the statement."
Conclusion