Last reviewed 28 February 2014

A case last year, Educational World Ltd (T/A Winston House Preparatory School) v Wharton [2012] UKEAT/0223/12/ZT, demonstrates how problems arise if the employer and employee have different interpretations of a teacher’s contract.

In that case, the dispute concerned the employee’s notice entitlement, and whether public sector requirements can be applied to the independent sector. David Brierley reports.

Resignation by employee

The claimant teacher (Wharton) worked at the small preparatory school. She submitted a resignation letter to leave at the end of the summer term, stating that she was giving a term’s notice as required by her contract, and gave a leaving date of 31 August. The school replied accepting her resignation, but stating that the resignation date was the last day of the teaching term, which was 8 July. She submitted an employment tribunal claim for unlawfully deducted salary from 8 July until 31 August.

Her statement of particulars of employment said that either party could terminate the employment contract by giving to the other, before the first teaching day of any term, a full term's notice in writing to expire at the end of the term. The term dates were given in the school handbook, and the end of the summer term was 8 July.

Teachers’ contracts in the maintained sector incorporate national terms and conditions in the Conditions of Service for School Teachers in England and Wales (the Burgundy Book). This includes notice, and there are three fixed dates for notice to run to: 31 December, 30 April and 31 August. The question in this case was whether these terms could be incorporated into an independent sector contract. Did a full term’s notice mean expiry on 31 August, as the claimant contended, or did it mean expiry on 8 July?

The employment tribunal judge upheld her claim. He concluded that the phrase "end of term" meant the end of the holiday period following that term, because there was a general custom and practice among teachers to be paid in this way. Also, she had given 31 August as her resignation date and that was the date at which her resignation became effective. The school could not change that date unilaterally.

Public sector terms and conditions did not apply

The school appealed and the employment appeal tribunal (EAT) overturned the tribunal’s decision. It was wrong to construe the contract of employment by reference to public sector contracts. "With the best will in the world", those terms and conditions in the public sector could not be imported into the private sector, let alone provide part of the background to the construction of the claimant’s contract. The term dates in the handbook made the teaching terms clear.

As regards the 31 August date in the resignation letter, the EAT pointed out that, under general contract law, what either party believes the contract to mean is not a factor that can be taken into account. The correct way to approach the interpretation of a contractual term is to look at it from the viewpoint of an objective outsider.

Dismissal by employer

Another case, Birmingham City Council and Anor v Emery [2013] UKEAT/024813/SM, concerned dismissal notice. The School Staffing (England) Regulations 2009 make special provision for the employment and dismissal of teaching staff in maintained schools, where the governing body decides who to appoint and dismiss, and the local authority (LA), as employer, must give effect to the governing body’s decision in both respects.

Regulation 20 states that, where the governing body determines that a member of staff should be dismissed, it must notify the LA in writing, which must then, within 14 days, dismiss the member of staff with or without notice as the case may be.

In this case, there was a governing body hearing to consider a teacher’s ill health absence and it decided she (Emery) should be dismissed. It sent her a letter dated 28 February, which reached her the next day. It told her that the LA would be informed of its decision to dismiss and would, within 14 days, as required by the regulations, terminate her contract with notice, ending on 30 April.

On 29 February, the LA sent a letter to Emery, which reached her on 1 March. The EAT ruled that the letter from the governors was not notice of dismissal. The LA letter was the dismissal letter, and valid notice of dismissal was not given until she received that letter. This was one day too late to terminate her employment on 30 April and she was entitled to notice pay until 31 August.