The Plaintiff, a teacher had had a number of accidents at school and applied for and was granted a short service gratuity from the Ministry of Education being agreed to be permanently incapable of serving efficiently as a teacher of the appropriate kind. The employer did not give him any notice of dismissal.
Held: Under the regulations he had been entitled to three months’ notice. The teacher sued for damages, including damages in that he had not been given pay for the period of notice that would have been applicable had notice of dismissal been given. ‘Having regard to the correspondence, I now come to the question of whether there was frustration of this contract. It is quite clear, in my view, that the mere inability of the Plaintiff to perform his duties by reason of illness or accident does not in itself amount to frustration of the contract. The regulations regarding tenure clearly contemplate that, even if the teacher does become ill or suffers an accident, the contract shall continue in existence in spite of that. But as a matter of common sense it seems to me that an application for and acceptance by the plaintiff of a gratuity on the basis that he had become permanently incapable of serving efficiently as a teacher is wholly inconsistent with the continued existence of a contract by the County Council to employ him as a teacher and by him to serve the County Council as a teacher.’ After drawing attention to the Act, ‘I consider that it is plain that the whole basis of this gratuity is that the teacher has become permanently incapable of serving efficiently as a teacher. In my judgment, it is impossible for the plaintiff at the same time to accept a gratuity on the basis that he is permanently incapable of serving as a teacher and also to continue to serve as such. Having accepted this gratuity, the plaintiff was not, in my view, eligible to return to the service of the County Council. In my view the foundation of the contract was destroyed when the plaintiff accepted the gratuity and the contract then came to an end by frustration. If there is frustration, there is no need for either party to give any notice terminating the date of it. The determination is automatic.’
Judges:
Browne J
Citations:
[1968] 66 LGR 171
Statutes:
Teachers’ (Superannuation) Act 1925
Jurisdiction:
England and Wales
Cited by:
Cited – Verner, Sheppard, Ridley v Derby City Council, Norfolk County Council, St Thomas More Roman Catholic High School QBD 14-Nov-2003
The question was whether, when a teacher has applied for and accepted ill-health retirement benefit, usually a lump sum and a pension, on the ground of permanent incapacity, there exists a public law duty on his employer to dismiss the employee.
Lists of cited by and citing cases may be incomplete.
Education, Employment
Updated: 06 December 2022; Ref: scu.187972