The case of Birmingham City Council v Emery is a useful reminder that for community schools the employer is the local authority (LA) rather than the school’s governing body. It is therefore the responsibility of the LA to give effect to a governing body’s decision to appoint or dismiss an employee.
Ms Emery was employed as a teacher at Benson Community School. Following a long period of ill health the school’s governing body made the decision to dismiss her.
At a disciplinary hearing on 28 February 2012 Ms Emery was informed that the school’s governing body had decided to dismiss her and this would be confirmed by the LA. The governing body issued a letter, received by Ms Emery on 29 February, confirming its decision.
In a letter dated 29 February 2012, received by Ms Emery on 1 March, the LA confirmed the governing body’s decision and formally terminated Ms Emery’s contract of employment on notice.
At first glance what difference does a day make? However, the significance was that, like most teachers, if Ms Emery was given notice of termination by the end of February, her employment would terminate on 30 April 2012. However, if notice was not given by the end of February, her employment would terminate on 31 August 2012. As the LA’s letter was not received until 1 March, Ms Emery was entitled to be paid until 31 August 2012.
There is detailed legislation governing community schools set out in the Education Act 2002 and secondary legislation. In short, although the school’s governing will decide who to appoint and dismiss, those decisions must be given effect by the LA, which (unless exceptional circumstances apply) will be the employer. The same basic principle will also apply to voluntary controlled schools.
This situation differs for foundation schools and voluntary aided schools, where the governing body itself employs the staff. Similarly, academy trusts will employ staff and can give notice directly without needing to consult with the LA.
For more information please contact Tony McPhillips on 0191 211 7908.