Court of Appeal
Appeal by the claimant ('H') from a decision of 4 July 2002 in Cardiff County Court dismissing her claim for damages caused by her alleged wrongful dismissal as a head teacher. H had been employed by the defendant ('B') since 1 January 1996. In early July 1999 H became unwell and had a period of long-term sick leave for which she was entitled to be paid six months' salary, which she received up to 31 December 1999, and half pay for the next six months. Under the Teachers' Pensions Regulations 1997 SI 1997/3001 H was entitled to the payment of retirement benefits. During the summer of 1999 H and a union representative met the Director of Education of the local authority and it was agreed that as a result of H's ill health she would make an application for retirement benefits. She applied in January 2000 by completing a form from the teachers' pension scheme ('the TPS') that required B to certify that H was retiring on the grounds of ill health. On 13 June 2000 the TPS informed B that H's application had been accepted on the basis that H was considered unfit for teaching and informed H that she had been judged eligible for her pension in a lump sum. On 7 July 2000 B wrote to H informing her that her last day of pensionable sick leave would be 30 June and accordingly her contract of employment ended on that day on the grounds of ill health. H submitted that: (i) there had not been an agreed retirement date; (ii) she had not asked to retire nor had she resigned; and (iii) the 7 July letter was notice terminating her employment and therefore sought damages. B contended that termination was by way of mutual agreement or that H had resigned from 30 June and therefore had not been dismissed. The judge determined that H's decision to retire on the grounds of ill health was a decision to cease or give up her employment and was therefore satisfied that in informing B of her decision to retire and to apply for retirement benefits H was impliedly agreeing to retire from her employment upon becoming entitled to payment of such benefits.
HELD: (1) The recorder was wrong to find that there was an implied agreement to retire. There either was an agreement or not; it was the terms that were to be implied. (2) It was plain that at the meeting during the summer of 1999 it had not only been agreed that H would be applying for ill-health retirement but she must also have conveyed a decision to retire on those grounds. That amounted to notice of resignation. (3) To apply for early retirement H had to satisfy the requirements of Case C in the 1997 Regulations and had to show that she had ceased to be in pensionable employment, which was defined in reg.E4 of the Regulations. As H was ill and absent from work pursuant to her contract she was entitled to be paid her salary in full, but once she asserted permanent incapacity she was unlikely to receive her full salary and therefore she had ceased pensionable employment. She had applied for retirement pension on the basis that her entitlement arose and her sick pay would cease on 30 June 2000. This was more than a statement of future intention to retire. H knew she would not be returning to work as she was permanently incapacitated. H applied to a third party for retirement benefits and gave B notice of her decision to retire. (4) A correct analysis of the 7 July letter was wholly inconsistent with any act of dismissal on the part of B. This claim depended on that letter being a summary wrongful dismissal; it wasn't. H was willing to retire if and when she received the benefits. Her employment had been terminated by reason of her resignation on 30 June.
 EWCA Civ 1996
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