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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McGuinness v. Glasgow City Council, [2003] ScotCS 45 (20 February 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/45.html Cite as: [2003] ScotCS 45

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McGuinness v. Glasgow City Council, [2003] ScotCS 45 (20 February 2003)

OUTER HOUSE, COURT OF SESSION
A5334/01	OPINION OF T G COUTTS, QC Sitting as a Temporary Judge in the cause MRS ANNA McGUINNESS Pursuer; against GLASGOW CITY COUNCIL Defenders:   ________________

 

 

Pursuer: Napier, Q.C.; Thompsons

Defenders: Truscott, Q.C., Marsh; E Bain

20 February 2003

INTRODUCTORY

1. The pursuer, a teacher who currently works for the defenders as a teacher of classics at Cleveden Secondary School, raised the present action for declarator that she "in the terms of her contract of employment with the defenders dated 27 July 2001 is entitled to have granted her request for transfer to the permanent staff of the defenders". The pursuer has had continuous service with the defenders and their statutory predecessors since 1 March 1993. That was agreed by way of Joint Minute in the face of the defenders' averment that her employment commenced on 16 August 1994, an averment which they had felt able to make despite the terms of their letter to the pursuer dated 21 March 1997 and the precise terms of her contract of employment which are presently in issue. There a commencement date of March 1993 was repeated.

Because of the nature of the defence to the pursuer's action to which reference is made later, parties agreed that a proof before answer was required.

PURSUER'S CONTRACT OF EMPLOYMENT

2. The pursuer worked under contracts of employment issued annually. The relevant contract informed her that she had been appointed to the defenders' department of education services. In that document there appeared "Designation of Post - Teacher of Classics", and the place of employment/designated centre was Cleveden Secondary School. The contract also provided that she was liable to transfer to such other places of employment in the Authority's service as might be required and were deemed to be reasonable. Her remuneration was pro rata the salary of a full-time teacher because she was a part-time temporary teacher. It was admitted that the pursuer's letters of appointment referred to and incorporated within her contract the scheme of salaries and conditions for teaching staff in school education, published in a document known as the "Yellow Book".
3. Condition 8.5 of that document, (hereafter referred to as 8.5) the consolidated and definitive version of which is dated 1994 provides:

"Transfer of Temporary Teachers to Permanent Staff

A teacher who is employed on the temporary staff may at any time apply for a transfer to the permanent staff and the application shall normally not be refused if a teacher has given satisfactory full-time continuous service for a period of one year. Transfer, where granted, should normally be from 1 August."

That provision in the said Yellow Book was accepted as having statutory force by the defenders' witness Kieran Bloomer, at page 64 of his evidence.

4. In January 2000 the pursuer became concerned that the date of her contract was to be changed to 31 May as opposed to 30 June and thought that this might enforce a break to her period of continuous service. Whether that view was correct or incorrect, by letter of 17 January 2000 she made application for transfer to permanent staff in terms of 8.5. It was admitted that her service fell within the provision of the said condition and there was no, and has never been any contention that the pursuer had not given satisfactory full-time continuous service for a period of one year. Her request for transfer of status was refused.
5. So far as appeared before the Court the only reason for refusal given prior to the defences in this action was by letter to the pursuer's solicitors dated 14 August 2002 in the following terms:

"It is the view of the education department, supported by advice from the Council's Legal Services Department and from COSLA, that Clause 8.5 of the Teacher's Conditions of Service contradicts primary legislation contained within the Local Government and Housing Act of 1989 to appoint on merit. Further advice has been sought on the basis on which 'appointments on merit' should be made and the clear advice received is that substantive vacancies continue to be filled on merit by way of competitive interview which is the standard approach across all departments in Glasgow City Council".

6. Further reasons were advanced in the pleadings in an attempt to justify that refusal. There was an assertion that the words "shall normally" in the collective agreement render the clause inappropriate for incorporation into individual contracts of employment. It was further argued on an esto basis that if it was apt for incorporation at the time of the Agreement, it ceased to be apt following the passing of the Self-Governing Schools Etc (Scotland) Act 1989 which came into effect on 1 February 1990. The defenders then say:

"The defenders aver that in order to comply with the supervening legislative provisions they require to make all appointments to permanent post dependant on selection in competitive interview."

7. Nonetheless it is noted that the legislation could not supervene the relevant consolidated conditions which are dated 1994.
8. Further defences were that after 1995 the Clause ceased to be apt for incorporation into individual contracts having regard to the Employment Protection (Part-Time Employees) Regulations 1995. It was said that those regulations rendered it unlawful to apply conditions to part-time workers that are not applied to full-time workers on the basis that such measures are indirectly sex discriminatory. In addition it was pled that it indirectly discriminates against men, contrary to section 1(1) of the Sex Discrimination Act 1975 in that the majority of employees holding temporary posts both within Scotland and with the defenders are women. More women than men, they say, would have been likely to gain permanent employment without the necessity of undergoing a competitive selection interview if 8.5 was involved.

EVIDENCE

9. Evidence was led from the pursuer and the defenders' Management Development Officer, Education Services, Paul McBride. The evidence of Kieran Bloomer was taken on commission. A Joint Minute was lodged substantially agreeing evidence that was to be given by Mr Valentine, the Head Teacher of Cleveden Secondary School and Robert Wishart, a Statistician with the Scottish Executive. The statistics produced were agreed as evidence. The Joint Minute provided evidence that Mr Valentine has never considered or appointed or otherwise caused a temporary teacher to be made a permanent employee of the defenders; that he has only appointed teachers in accordance with the provisions of the defenders' Standard Circular 16; that he knew of no instance in either Strathclyde Regional Council or Glasgow City Council where any head teacher transferred or appointed a temporary teacher by reference to 8.5
10. The pursuer's evidence was simply to the effect that she had fulfilled the condition in 8.5. No question about her suitability had ever been raised. Until the present issue arose, she had never particularly considered 8.5 and knew of none of the background matters spoken to by Mr Bloomer. Such were never drawn to her attention by the defenders as in any way affecting the written conditions of employment she held. She emphasised that her wish was to be on the permanent staff of the defenders. She did not insist that that meant that she had a right to be a permanent full-time member of staff or that she required to be appointed to Cleveden Secondary School, although Cleveden Secondary School is one of the few schools in Glasgow where the study of classics is still available to pupils. She is also qualified to teach religious education and has done so for the defenders albeit some years previously. What she sought was the perceived benefit of being a member of the permanent staff as opposed to depending on annual contracts. She had never been informed by the defenders that there was any question of 8.5 not being apt for incorporation in her contract and it had always remained incorporated therein.
11. Mr McBride's evidence was to the effect that the defenders had a policy to refuse requests of the type made by the pursuer. He said that to grant the declarator would be contrary to the procedures adopted for appointment to permanent posts with the defenders. This, he said, could lead to a surplus of staff and accordingly it was only when a post became vacant that it was advertised and claims were considered. That was designed to achieve that the best candidate would be appointed. Temporary teachers could be appointed outwith the parameters of the defenders' policy Circular 16. There would be time-tabling difficulties. However, all the problems he spoke to were related to the availability of a post. In cross-examination he said that some teachers had made application under 8.5. They had all been rejected. He thought that it would have been illegal since 1990 to comply with 8.5.
12. The principal evidence of the defenders was that of Kieran Bloomer. He had been involved in the affairs of the Trade Union, the EIS, and was thereafter involved in national negotiations on salaries and conditions of service. From 1974 he became leader of the teachers' side in those negotiations and became a permanent official of the Union in April 1981. He ceased to have involvement with the negotiations when he was appointed as an educational officer with Strathclyde Regional Council in 1984. He is presently Chief Executive of Clackmannanshire Council. He was thus able to provide a unique overview of the matters presently in issue and their historical background. The present 8.5 began as paragraph 47 of a collective bargaining agreement reached in June 1975. The wording is identical and has persisted throughout all changes in the various bodies involved on both sides. It was carried forward into the Yellow Book which appeared in 1994.
13. Strathclyde had adopted a system which virtually set aside paragraph 47. That local agreement was essentially a waiting list system for posts which operated after a certain number of hours had been accumulated. Management and unions operated this somewhat differently. Management took the view that it chose and a person became eligible for selection by Management after he had accumulated the requisite number of days. The teachers' unions took the view there was simply a waiting list and the person with the most accumulated days should get the first available job. Appointments to unpromoted teacher posts at that time (pre 1990) were made centrally. The schools had no involvement and no choice about who they were given. This waiting list system was struck down by legislation seeking to achieve decentralisation. Accordingly in the early 1990s, Strathclyde departed from their list system and procedures were devolved to school level with the agreement of the Unions. Thereafter there was an annual staffing exercise which began with an attempt to reach agreement between the head teachers and the authority centrally about the role of the school. Thereafter the head teacher made an estimate of subject demand. If there was a surplus, people who held permanent posts within the Council but were no longer required within an individual school had to be moved elsewhere. After that happened other posts were advertised. All permanent unpromoted posts were advertised apart from such transfers of permanent appointments. Head teachers did not have the authority without going through an advertisement procedure to appoint teachers other than on a very short term basis which provision was reluctantly agreed, he said, with the Unions. He took the view that in view of the two pieces of legislation above noted the list system was untenable and he expressed the view that it was not competent after 1990 for the Council simply to take someone under a temporary contract and move them into a permanent post. That, he said, was because the agreement then in force which was effectively set out in Standard Circular 16 was from the old procedures. In cross-examination he gave it as his opinion that the list system is in principle not capable of being reconciled with the statutory provision. He accepted that in the case of someone not providing short term supply, but service over a number of years in the capacity of a temporary teacher at the same school in the same subjects in the absence of any criticism the inference could be drawn that merit has been shown (p73). He agreed that his view was that either the list system or Circular 16b prevailed over 8.5, but stated that both sides of the local negotiating body in Strathclyde should have regularised their position to make it clear that 8.5 was no longer appropriate. He concluded his cross-examination with the statement that the theory and the practice were quite at odds with one another.

THE FINDINGS IN FACT

14. The pursuer has given, on the evidence, satisfactory service for the requisite period to qualify her to receive benefits envisaged in 8.5. The defenders had taken no steps to exclude 8.5 from the pursuers' Conditions of Service and they were and remained part of her contract. There is no statutorily prescribed way for the ascertainment of the merit required for appointment. 8.5 does not require the existence of a particular post for its operation. The defenders find the present system of employing temporary teachers adopted in the case of the pursuer to their advantage particularly from the point of view of flexibility, but also because there are economic benefits. They have refused all other requests to operate 8.5 but the present action is the first occasion on which the matter has come before a court, as opposed to the operation of the teachers contractual grievance procedure.

ARGUED FOR THE PURSUER

15. 8.5 stands as part of the pursuer's contract of employment. It is incorporated by express reference and by express statutory provision. There is no scope for argument about whether the Clause is apt for incorporation. As a matter of law it is incorporated.
16. The defenders' arguments to support their rejection of the interpretation placed by the pursuer in Clause 8.5 have no merit. The argument that the historical background of the Clause showed that it should not have the meaning the pursuer says it has, flies in the face of the well-known rule against referring to prior communings to interpret a contract as in Bank of Scotland v Dunedin Property Investment Co Ltd 1998 SC 567 at 665. The pursuer's unchallenged evidence was that she had no knowledge of 8.5 save what she found out about carrying out her own inquiries. She had known nothing of the background spoken to by Mr Bloomer. She is entitled to take her contract at face value.
17. The defenders' argument that to grant declarator would cause difficulties for the defenders in carrying out their duty to provide education in Glasgow are not relevant grounds for rejecting a particular interpretation if other grounds support it. In any event to grant a declarator would not lead to an unworkable result. She does not seek a permanent full-time position at any particular place teaching in a particular subject. If her work at Cleveden School should cease to be available, she would acquire no more than the right to be treated in similar fashion to permanent teachers who are either transferred or retained. There is no substance in the argument proferred by the defenders that 8.5 has not been adopted hitherto. The pursuer may be the first to invoke a contractual right. If the employers did not wish 8.5 to stand, there was no reason why they should not have taken steps to remove or modify it and issue a document to reflect what was said to be acceptable to the Unions and employers in Strathclyde. They did not do so and may thereby have caused theory and practice to diverge but that does not suffice to deny the pursuer her contractual rights.
18. Neither section 7 of the Local Government and Housing Act 1989 (which provides for the appointment of staff of local authorities to be made on merit) nor section 87b of the Education (Scotland) Act 1980 as amended in 1989 prohibit the defenders from granting the pursuer's request. Appointment is not the same as transfer. 8.5 does not refer to appointment nor does the pursuer seek appointment as such. She has already been appointed. Further, other transfers on redundancy or as voluntary transfers are allowed apparently without difficulty. The defenders are wrong in equating appointment on merit with appointment following competitive interview even if transfer is to be equated with appointment. The defenders are placing a wider interpretation upon the statutory provisions than they bear.
19. Further, indirect discrimination is not made out and cannot be assumed. The reference to statistics does not demonstrate that granting the pursuer's request for transfer would be unlawful. The case presently before the court is individual and the possibility of others making some form of claim at some later stage could and should not affect the pursuer or indeed the defenders in the particular instance.

DEFENDERS' ARGUMENT

20. Despite allowing 8.5 to remain the defenders' argued that it was inapt for incorporation, that it was vague and lacked specification. It depended for its efficacy on what was "normal" and the context in which the provision would be interpreted would not remain static over 27 years - see NCB v NUM 1986 ICR 76 and Alexander & Others v Standard Telephones and Cables 1991 IRLR 2 86. In any event Clause 8.5 was different in that there is a statutory underpinning.
21. Further, 8.5 is different because in order to be an appointment, there has to be an agreed procedure and there must, it was argued, be a post or a vacancy and funding for it.
22. Looking at the word itself "transfer" could only happen when there was re-deployment or closure or surplus permanent staff. There must be a post to which the person can be transferred. One cannot be transferred to something which does not exist. If there was not a vacant post, by what means could the pursuer be transferred? Did that mean to the permanent staff of the authority or the permanent staff of the individual school and if so, which? Since these matters were all vague, specific meaning could not be attached to 8.5 in the present circumstances.
23. "Shall normally" in 8.5 is ambiguous. What is normal is bound to be something found at the time and in the circumstances and when these no longer prevail, it will be no longer normal. The evidence of Mr Bloomer put the matter in context.
24. Clause 8.5 does not refer to an academic year. There was vagueness in the use of the term "satisfactory" and if there was an over supply then the entire context becomes relative. Because of the passing of section 7 of the Local Government Act, the list system which had been operated locally whereby certain temporary teachers in terms of days of service were made permanent when there was an appropriate vacancy was at an end. Although the matter was devolved to the school, there was no absolute discretion. There had to be an identification of a vacancy in one subject rather than another.
25. The sex discrimination argument did not make 8.5 illegal but impacted on 8.5 in relation to part-time employees and the sex ratio of such as demonstrated in the statistics produced. While the sex discrimination argument was one which applied to individuals or individual cases, statistics showed the inappropriateness of incorporating 8.5 in the light of possible challenges.

DECISION

26. I have come to the view that the arguments put forward by Mr Napier for the pursuer should prevail. The words of the pursuer's contract are clear and to my mind, not ambiguous. Provided she fulfils the requisite conditions, she has a contractual entitlement to be transferred to the defenders' permanent staff. There is nothing in the defence put forward which persuades me that it is not possible to do so. The pursuer's claim is for appointment to the defenders' permanent staff. She does not seek to enforce a full-time permanent employment at Cleveden School. By that attitude she recognises that the defenders have a measure of discretion in the operation of the Clause. If they could show something in relation to her claim and situation that was not "normal", or should they be able to demonstrate that the pursuer was unsatisfactory, which they have not, they might be able to avoid the plain consequences of their contract. They have failed to demonstrate any abnormality.
27. No doubt it may have appeared to those who operated the defenders' employment procedures that 8.5 was not applicable. But the fact remains that it was specifically incorporated within the pursuer's contract long after any of the so called statutory impediments, if they could be so described, were in existence.
28. In my view there is nothing inconsistent with an appointment being on merit and the operation of 8.5. If the temporary teacher did not have merit, she would not be satisfactory. No doubt it may be inconvenient, or even more expensive, for the defenders to comply with their contractual obligations but that was a matter, as Mr Bloomer said, which should have been regulated long before the incidence of the present dispute. I found no substance whatsoever in the argument as directed to the Sex Discrimination Act. It may well be that more temporary teachers are women but in all parts of the defenders' teaching staff, women predominate. In the secondary sector men nearly achieve numerical equality.
29. The situation of temporary teachers could and should have been regulated long ago. No doubt temporary teachers as opposed to short term relief employees require to be appointed on merit. A temporary teacher on a contract for a year would not in my view necessarily less meritorious than if appointed for more than a year; nor is it a necessary inference that because a person is appointed to a temporary situation that they are in any way inferior from the point of view of appointment on merit than a permanent postholder.
30. I was equally unconvinced by the argument that in order to effect a transfer there had to be a vacant post. In the pursuer's case she had been employed as a temporary teacher for some years and that on a full-time equivalent basis. It does not seem to me to be open to the defenders to argue that there is not a position of employment whether described as a "post" or not. It can well be argued that by operating the present system of employing temporary teachers the defenders are seeking to make economies to the disadvantage of persons who are in fact full-time employees who are called "temporary" and lack security. Certainly the pursuer's work history with the defenders would seem to bear that out. It may be that the defenders see this as a means of isolating an employee for whom no alternative post might become available. It is however the words, repeated annually as incorporated in the statement of her contract which render the defenders' other arguments superfluous and beside the point.
31. I reject the defenders' argument that the use of "normally" is either ambiguous or has to be related to the time the word was first used. Here the court is dealing with "normally" as at 2001. The past history of 8.5 while of interest, has nothing to do with the use of the clause in the pursuer's present contract. It is for the defenders to show that they cannot operate the clause. That must be case specific. The clause means that transfer will take place unless an abnormal situation exists.
32. I shall accordingly repel the defenders' pleas-in-law, sustain the pursuer's plea and grant decree of declarator as concluded for.