APPENDIX

Lake v Essex County Council

Court of Appeal CA (Civ Div)

Lord Denning MR, Lawton and Geoffrey Lane LJJ

Lord Denning MR

This case concerns part-time teachers and their position with regard to dismissal or unfair dismissal.

‘Paragraph 4 above [the right not to be unfairly dismissed] does not apply to...

(f) any employment under a contract which normally involves employment for less than 21 hours weekly.'

That provision must affect a large number of part-time teachers. We are told that there are 10,000 part-time teachers in the County of Essex. Over the whole country there must be a very large number.

Here we have to consider Mrs Lake who was a part-time teacher from 1973 onwards at Greensward School, Hockley. Her employment came to an end in August 1976. She would be entitled to compensation for unfair dismissal if she had been employed for more than 21 hours a week.

She was engaged on written terms. On July 24, 1973, the Essex County Council wrote to her, saying:

‘I am required, on behalf of the Essex County Council to confirm the offer to you of an appointment as a part-time teacher at the above­mentioned school for 18 hours 20 minutes per week from September 1, 1973, until August 31, 1974, in the first instance. Your times of duty will be as follows: - Monday to Friday: 8.50 a.m. to 12.30 p.m.

Salary will be paid on a proportional basis of the full Burnham sal­ary for each hour worked in accordance with the scales and regula­tions for the time being in force....'

If she worked at the school for more or less hours, her salary was to be adjusted accordingly.

Those were the terms of the contract. The question is whether there was an additional term in the contract whereby Mrs. Lake was required to do extra work in the preparation of lessons or in the marking of pupils' papers and the like so as to bring the hours she worked each week to more than 21. The industrial tribunal held that there was no implied term in the contract requiring her to work more than the 19 hours and 25 minutes.

She appealed to the Employment Appeal Tribunal [1978] ICR 657. They allowed her appeal because they thought (p 660) there was an implied term whereby she was

‘to do as much work outside the school hours specified in her contract as was reasonably necessary for the proper performance of her teach­ing duties in school hours.'

They therefore remitted the matter to the industrial tribunal to see whether, on the evidence, by reason of her out-of-school work Mrs Lake could prove that she had worked more than 21 hours a week. They said, at p 660:

‘That tribunal will have to satisfy itself on evidence in the ordinary way about how many hours Mrs. Lake ordinarily worked outside her school hours in order to do her work in her school hours properly.'

Now there is an appeal to this court.

We have heard all the arguments in this case: and I must say that I pre­fer the decision of the industrial tribunal. It seems to me that the ‘free' time of 3 hours and 40 minutes covered all that was required of her. That was the time allowed to her for preparation or marking.

There is also the question of payment. Mrs Lake was paid according to the number of hours she worked. She was paid for working 19 hours and 25 minutes a week. It is difficult to find any element in her salary which included her work out of school hours.

The recent fire brigade case is distinguishable. In Bullock vMerseyside County Council [1979] ICR 79 the fireman had to be on call for 102½ hours every week. He could not go away. During all those hours he had to be available within four minutes of the fire station. Being on call, he was on duty all that time. Contrast this with ITT Components Group (Europe) v Kolah [1977] ICR 740 *581 where it was held that voluntary overtime did not come into the calculation.

I do not think it necessary in this case to go into any more refinements. Suffice to say there is no implied term giving rise to any specific ascer­tainable or available hours of work over and above those specified in the contract. As the specified hours were less than 21 hours weekly, she is not entitled to compensation for unfair dismissal.

I would therefore allow the appeal and restore the decision of the industrial tribunal.

Lawton LJ

I agree. Under paragraph 9(1)(f) of Schedule 1 to the Trade Union and Labour Relations Act 1974, in the form in which it was at the material time, for the purposes of unfair dismissal the tribunal has to look at the contract under which the applicant makes his or her claim. The paragraph is in these terms: ‘... any employment under a contract which normally involves employment for less than 21 hours weekly' is excluded from the operation of paragraph 4 of Schedule 1. The tribunal has to look to see what the contract itself provides. Under various regulations, school teach­ers have to have written contracts. The written contract in this case pro­vides for the period during which the teacher shall be employed, and goes on as follows: ‘You times of duty will be as follows,' and they are set out. That is what the teacher is required to do under the contract.

Mr Blom-Cooper has accepted in the course of his submissions that the contract is the governing instrument, but he has gone on to say that the written contract does not contain all the terms of the contract of employ­ment. He submitted that there must be added to the written terms an implied term, which he defined in these terms, as I took it down:

‘A teacher is required by the nature of his employment as a teacher to do such work as will enable him properly to perform the task of teach­ing and to do so by way of preparing the lesson he will have to give, marking the books of his pupils and the essays he has set in class, and the like.'

Applying the well-known principles for the insertion of implied term in contracts, I ask myself the question: would any local education authority have agreed to any such term? At once questions of vagueness arise because the words ‘preparing the lessons he will have to give' or some such like provision in the implied term would make it impossible for the local education authority to supervise, or measure for the purposes of payment, that which would be required for the preparation of lessons.

Mr Blom-Cooper has said that the difficulty of measuring for payment or supervising the period required for the preparation of lessons is one which is not insuperable for a tribunal.

I would allow the appeal.

Geoffrey Lane LJ

I add a few words of my own in deference to the appeal tribunal from whose views we are differing. By a contract in writing Mrs Lake was engaged as a part-time school teacher by the Essex County Council. Her hours were specified to be (as later amended) 19 hours 25 minutes for a six-day week, which is, as the industrial tribunal found, equivalent to 16 hours 11 minutes for a calendar week. Of those 16 hours 11 minutes, no less than 3 hours 40 minutes were allowed for free periods to be used as Mrs. Lake's discretion dictated - for reading, marking, preparation of les­sons, or whatever she might wish.

She worked under that contract from September 1973 until August 31, 1976, when her contract was not renewed. She wishes to claim now for unfair dismissal; but, before she can put forward an argument on the merits, she has to avoid the provisions of paragraph 9(1)(f) of Part II of Schedule 1 to the Trade Union and Labour Relations Act 1974 which provides that the right not to be unfairly dismissed does not apply to ‘any employment under a contract which normally involves employ­ment for less than 21 hours weekly.'

Counsel are agreed - both Mr Irvine and Mr Blom-Cooper - that the only hours which one is entitled to consider are those which the employee is obliged to work by virtue of the contract. Consequently the only live question before this court is whether there was an implied term in Mrs Lake's contract that she should work more than the hours stipu­lated in the agreement, namely the 16 hours 11 minutes.

‘Quite irrespective of the “free time,” if a teacher found it necessary to spend time outside her on-duty-at-school time in preparation or in marking, essential elements in her job, there must in our judgment be a contractual obligation on her to do so whether it is written into her contract or not. If the headmaster had said, “Mrs, Lake, that lesson was quite insufficiently prepared” would she have retorted, “I don't have to prepare lessons outside school hours?” If he had said, “Why is that written work unmarked?” Would she have answered, “I don't have to mark papers outside school hours”? In our judgment obviously not.

Accordingly, in our judgment the employee was under a contractual obligation to the employers to do as much work outside the school hours specified in her contract as was reasonably necessary for the proper performance of her teaching duties in school hours, and that work outside school hours was employment normally involved in the performance of her contract which must be included in the computa­tion of the 21 hours for the purposes of paragraph 9(1)(f) in order to see whether her right not to be unfairly dismissed was excluded.

Accordingly, the appeal succeeds, and the case must go back for re­hearing before a differently constituted industrial tribunal. That tribu­nal will have to satisfy itself on evidence in the ordinary way about how many hours the employee ordinarily worked outside her school hours in order to do her work in her school hours properly.'

It is to be observed from that passage that there is a disparity between the way in which the judge expressed the reasons for the appeal tribunal's conclusion on the one hand and, on the other hand, the form of question which the industrial tribunal are requested to answer. It is said that she was obliged to do as much work outside hours ‘as was reasonably neces­sary.' which is an objective test, but the industrial tribunal are required to find out how many hours she ordinarily worked, which is a subjective test. That perhaps indicates the difficulties in which the decision of the appeal tribunal leaves one.

It is quite impossible, it seems to me, to attempt to quantify in terms of hours the sort of work which might be done in preparation. Mr Blom- Cooper at one stage of his argument, at any event, said that only work which could physically be timed, like marking papers and writing exam­ination questions, should be included, but it is difficult to see on what logical basis it could be so confined - and indeed on his argument I do not think that is logically correct.

Mr Blom-Cooper endeavoured, as Lawton LJ has already indicated, to set out the suggested implied term. It seems to me that that term, at least arguably, was void for uncertainty. It was certainly impossible of appli­cation. But are these circumstances circumstances in which it is justifi­able to imply a term at all? If MacKinnon LJ's ‘officious by-stander' (Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206, 227) had asked Mrs Lake and Essex County Council this question:

‘Is Mrs Lake contractually required to work such hours out of school time as may be necessary to prepare her work so that if she does not do so she can be dismissed?'

neither would have replied either testily or otherwise: ‘Of course.' Mrs Lake certainly would not and nor would the Essex County Council. It seems to me that this is not a circumstance in which it can usefully be argued that an implied term is necessary for business efficacy or would have been agreed by the parties.

For those reasons as well as those advanced by Lord Denning MR and Lawton LJ, I would allow the appeal and restore the judgment of the industrial tribunal.

Appeal allowed with costs. Leave to appeal refused.