D vs. Queen's Uni Belfast 1996 (original) (raw)
Court of Appeal (NI)
D vs. Queen's University of Belfast
[1997] ELR 431
HEARING DATE 19 September 1996
University - Lecturer - Termination of probation - D appointed to lectureship in Queen's University - Subject to probation - Board of curators recommended that D's appointment not be confirmed - Whether rules and procedures for dismissal of established lecturer were applicable to probationary lecturer
HEADNOTE
D was appointed a lecturer in finance in the School of Finance and Information in the Queen's University of Belfast on 15 October 1993. The appointment was governed by the provisions of the Education (Academic Tenure) (Northern Ireland) Order 1988 and was subject to a period of probation until 30 September 1996. In January 1994 D's period of probation was reduced by one year and was accordingly due to be completed on 30 September 1995. In 1976 the university had, under its statutes, adopted a set of rules and procedures relating to the probation of newly appointed staff. A copy of the rules and procedures were sent to D with his letter of appointment. Under the procedures a probationer was kept under review by university staff, advice was available, there was an annual assessment by an ad hoc group and the board of curators decided at the end of the probation period to make a recommendation of confirmation of appointment, termination of appointment, or that one further year's probation be served. In 1995, after it had considered a number of matters relating to D's appointment, the ad hoc group recommended that he should not be confirmed in post. A confirmation of post interview was arranged for 19 June 1995. D was informed that the board of curators would consider a range of allegations relating to his conduct during his probationary period which, if substantiated, would be incompatible with his position as a probationary lecturer. On 6 June 1995 D was informed that he had been suspended with pay pending consideration at the interview on 29 June 1995. D asked the board to fix another date for the interview because he was due to attend a conference. D was informed that it was vital that he attended the interview since it could possibly lead to him not being confirmed in his post. None the less D did not attend. The board proceeded in his absence. The board unanimously agreed that D should not be confirmed in his post on the grounds that the allegations against him had been substantiated and he was not a fit person to hold a post in the university. On 30 June 1995 the Vice-Chancellor informed D that his employment was terminated with effect from 30 September 1995. D appealed. The university's appeal committee rejected D's appeal. Under the university's statutes the rules and procedures for the dismissal of an established lecturer were different from those relating to probationary lecturers. The senate had power to dismiss for good cause and there was a right of appeal to the visitor. The university's statutes were revised in 1993 pursuant to the Education (Academic Tenure) (Northern Ireland) Order 1988. This permitted the dismissal of academic staff by reason of redundancy. In exercise of the powers conferred by the 1988 Order an Order in Council was made and came into force on 12 May 1993 giving effect to modifications made by the University Commissioners for Northern Ireland to the statutes of the university. A new chapter XX set out a detailed code for the dismissal of academic staff for good cause and by reason of redundancy, and set out a code for disciplinary procedures in respect of conduct constituting possible good cause for dismissal. D submitted that his dismissal was, with one arguable exception, for disciplinary reasons and could therefore only be dealt with under the procedures in chapter XX. That would have required a hearing by a disciplinary tribunal. Therefore, the board of curators had no jurisdiction to determine the validity of disciplinary complaints as part of its assessment of D's suitability for confirmation in post. The university argued that the contract with D was subject to a condition subsequent, namely, that D was confirmed in his appointment at the end of the probationary period; that D had not been dismissed but rather his appointment had been terminated; and that while the procedures in chapter XX could be used against a probationary lecturer, this did not mean that complaints of misbehaviour could not be considered by the board of curators. D brought an application for judicial review to quash the decisions of the university to terminate his employment. Carswell LJ dismissed the application. D appealed to the Court of Appeal.
Held
(1) On a strict and literal interpretation of chapter XX there was an argument that the termination of D's appointment constituted a dismissal within the meaning of chapter XX. However, adopting a purposive approach to chapter XX, it was not the intention of Parliament or of the Commissioners that the board of curators would no longer have the power to decide to terminate the employment of a probationary lecturer at the end of his probation period by reason of complaints of misconduct against him, and chapter XX did not operate to remove that power from the board.
(2) There was a difference, arising from considerations which were fair and reasonable, between deciding to terminate the employment of a probationer and deciding to dismiss an established member of staff. The difference had been recognised to some extent by industrial tribunals and by the Employment Appeal Tribunal.
(3) There were cases in relation to a probationary lecturer where his conduct and/ or his skill or aptitude were such that his senior colleagues and the board of curators would be entitled to form the opinion that he was not a suitable person to become a permanent member of the academic staff with the permanent security of tenure this entailed, although his conduct and/or defects in skill or aptitude were not such as to justify dismissal of a permanent lecturer under the standards laid down in chapter XX.
(4) It was not the intention of Parliament or of the University Commissioners to abolish the function of the board of curators in relation to deciding whether to confirm or terminate the appointment of a probationer and to abolish the probation procedure adopted by the senate in 1976 in relation to complaints which were capable of falling within the definition of 'good cause' in chapter XX. It would be inconvenient if the board of curators had to refer every part of the material which consisted of a complaint of a disciplinary nature to a tribunal or other authority for hearing instead of determining its validity.
(5) It was unnecessary to decide the question whether or not the application gave rise to an issue of public law.
Per Nicholson LJ: the contract between the university and the newly appointed lecturer was such that the contract was subject to a condition subsequent. If the probationer failed to comply with the requirements demanded of him under his contract of appointment which was subject to confirmation, the university was entitled to avoid the contract. An appointment did not become complete unless and until the conditions laid down in the confirmation procedure had been satisfied. The satisfaction of the conditions was part of the process of appointment, not dismissal. An appointment might never become unconditional. There was no obligation under the terms of a probationer's contract to refer matters of a disciplinary nature to a disciplinary committee under chapter XX of the university statutes whilst the newly appointed lecturer was under probation. The termination of the probationer's appointment on the recommendation of the board of curators did not amount to a dismissal which fell to be dealt with under chapter XX.
Statutory provisions considered
Industrial Relations (Northern Ireland) Order 1976 (SI 1976/1043) (NI 16),art 21(2)(b)
Education (Academic Tenure) (Northern Ireland) Order 1988 (SI 1988/1988)(NI 21), arts 3-5, 7
University Commissioners (Statute Modifications) (The Queen's University of Belfast) Order 1993 (SI 1993/1259)
Cases referred to
Deutsche Genossenschaftsbank v Burnhope [1995] 1 WLR 1580, [1995] 4 All ER 717, HL
Hamblin v London Borough of Ealing [1975] IRLR 354
Kammin's Ballrooms Co v Zenith Investments (Torquay) [1971] AC 850, [1970] 3 WLR 287, [1970] 2 All ER 871, HL
Pepper (Inspector of Taxes) v Hart [1993] AC 593, [1992] 3 WLR 1032, [1993] 1 All ER 42, HL
White v London Transport Executive [1982] QB 489, [1982] 2 WLR 791, [1981] IRLR 261, QBD
COUNSEL
Declan Morgan QC and Jacqui Simpson for the appellant
Nicholas Hanna QC and Neil Drennan for the respondent
PANEL
Hutton LCJ, MacDermott and Nicholson LJJ
JUDGMENT BY HUTTON LCJ
: The issue raised on this appeal is whether the procedure for terminating the employment of a lecturer at The Queen's University of Belfast appointed on probation was fundamentally changed by a new chapter XX relating to the dismissal of academic staff added to the university's statutes by the University Commissioners for Northern Ireland pursuant to the Education (Academic Tenure) (Northern Ireland) Order 1988.
The appellant was appointed a lecturer in finance in the School of Finance and Information in the Queen's University by letter dated 15 October 1993. The letter stated that his appointment was governed by the provisions of the Education (Academic Tenure) (Northern Ireland) Order 1988 and was subject to a period of probation. By letter dated 29 June 1995 the Vice-Chancellor informed the appellant that the board of curators had recommended that he should not be confirmed in his post and his employment was terminated as from 30 September 1995. The appellant lodged an appeal against the termination of his employment. The appeal committee established by the senate met on 1 September 1995 to consider the appellant's appeal. It was informed of the facts of the matter and considered the grounds of appeal put forward on behalf of the appellant and all the written submissions on his behalf and the letters from him and his solicitors. It concluded that the appeal should not be upheld and so reported to the senate on 20 September 1995. On 12 October 1995 the appellant brought an application for judicial review to quash the decisions of the university to terminate his employment. The application was heard by Carswell LJ who dismissed the application in a reserved judgment.
The background facts
The background facts are fully set out in the judgment of Carswell LJ and they can be summarised as follows:
(1) The letter of appointment of the appellant from the Vice-Chancellor dated 15 October 1993 was in these terms:
'CONFIDENTIAL
Dear Mr Deman
I have pleasure in appointing you, subject to all necessary employment permits being obtained, to a Lectureship in Finance in the Universityon the scale for lecturers Grade A with effect from the earliest possible date to be arranged between yourself and the Director of the School of Finance and Information, but not later than 1 January 1994. The post is assigned to the School and you will be responsible for the time being to the Director.
Your appointment is governed by the provisions of the Education (Academic Tenure) (Northern Ireland) Order 1988 and is subject to a period of probation until 30 September 1996. Each year of probation is based on an academic year and your first year of probation will therefore be the academic year 1993/94. Further information about your appoint-ment is given in the appendix, which should be read as an integral part of this letter.
Your commencing salary will be £18,855 per annum, payable monthly, with eligibility for USS. The first increment of salary on the scale for lecturers Grade A will be payable on 1 October 1994, 1 October thereafter to be the incremental date.
I should be grateful if you would confirm your acceptance of this appointment in writing to the Personnel Officer as soon as possible and complete and return the enclosed Form OW1 (QUB). I hope to have an opportunity of welcoming you to the University in the near future.'
(2) The appellant's period of probation was by letter of 27 January 1994 reduced to one academic year and his period of probation was accordingly due to be completed on 30 September 1995.
(3) In October 1976 the senate had adopted a clear set of rules and procedures relating to the probation of newly appointed staff and these rules and procedures were sent to the appellant with the letter of appointment dated 15 October 1993. These rules and procedures were also set out in the readily available staff handbook. A number of paragraphs are relevant in the context of the present case:
'CONDITIONS OF APPOINTMENT AND CRITERIA FOR PROMOTION OF ACADEMIC STAFF
Section I - Probation of newly-appointed staff
(i) A probationary appointment has two main functions. The first is to provide a period of training for a young lecturer, to enable him to gain experience with help and guidance from senior colleagues and to give him the opportunity of finding out whether he is likely to be happy in the profession of university teacher. The second is to provide evidence whether the lecturer has the qualities as a teacher, scholar and person which would justify recommending a permanent appointment.
(ii) With the exceptions noted below, all new appointments to academic staff in the grade of lecturer are probationary and confirmation of appointment is conditional on the satisfactory completion of probation.
(vii) Arrangements will also be made for an annual assessment of his teaching, research and scholarly ability normally by an ad hoc group consisting of the head of his department and senior colleagues, including the supervisor. In the making of these assessments, the ad hoc group will take into account a report which the lecturer on probation will be asked to submit towards the end of each academic year.
(viii) Each annual assessment will be communicated in writing by the head of his department to the lecturer on probation.
(ix) If the head of department after discussion with the ad hoc group considers the lecturer's progress to be unsatisfactory as measured by the assessments he will then inform the lecturer in writing at the latest by the end of the penultimate year of the probationary period if and how his progress appears unsatisfactory and will at the same time offer advice as to how he might try to overcome his shortcomings. This will give the lecturer time to try to effect an improvement in his performance before his position is considered by the Board of Curators. Copies of letters on such matters will be sent to the Personnel Officer. No action need be taken where the progress is satisfactory.
Where a lecturer is appointed for a period of probation which lasts for one year or less then this paragraph cannot be applied. The procedure will be as outlined in paragraph (x).
(x) The Board of Curators will require the head of department to submit the report of the ad hoc group together with his own comments between Christmas and Easter in the lecturer's final year of probationary appointment. The head of department will inform the lecturer on probation of the nature of the report in writing.
(xi) The Board of Curators will ask the lecturer on probation to submit a report on his progress during the probationary period and he may, if he wishes, name referees to whom the Board may refer.
(xii) The Board of Curators will consider the submissions mentioned in paragraph (x), the report of the lecturer on probation and, if appropriate, the referees' statements. It will then interview the candidate and recommend to the Senate that the lecturer:
(a) be confirmed in his appointment; or
(b) have his appointment terminated at the end of the current academic year or whatever longer period of notice is considered suitable, provided it is not less than three months and not more than one year; or
(c) be required to serve a further year's probation provided that the total probation does not exceed four years.
(xvi) Where the probationary lecturer, not confirmed in his appointment, feels that the proper procedures had not been followed during his term of probation he will have the right of appeal, within 21 days from the date of the letter notifying non-confirmation, to a committee appointed by Senate for the purpose, and to appear before this committee accompanied by a friend if he so wishes. The probationary lecturer should state the grounds on which the appeal is based. If the appeal is upheld the Board of Curators shall reconsider its recommendation - having open to it the same options as in (xii).'
It is apparent from these paragraphs that a probationer was kept under review by the university staff - advice was available, there was an annual assessment and finally the board of curators decided at the end of the probation period to make one of the recommendations to the senate set out in para (xii). In my judgment this carefully structured oversight of a probationer was designed to ensure that the person recommended for confirmation in post had the qualities as a teacher, scholar and person which would justify his confirmation in his appointment; that he was a fit and suitable person to pass from being a probationer to a fully established member of the academic staff.
Further, as the role of the board of curators is important in deciding the issue arising on this appeal I would emphasise the words of the introduction to the conditions of appointment:
'Professors and lecturers of the University are appointed by the Senate on the recommendation of the Board of Curators. The Board is chaired by the Vice-Chancellor and is composed of lay members of Senate, Professors of the University and two professors holding chairs in the same or cognate subjects as the subject for which candidates are being considered.
The Board of Curators, with its Sub-Committees, is charged with one of the most important tasks in the University, the choice of those who will influence the education of future generations of students and who will continue the high standard of scholarly work. From its central position the Board can take an overall University view of standards and the use of criteria, and has the duty of applying them impartially in the interests of the University and its students as well as of the lecturer.'
The course of events after the appellant had commenced his duties as a lecturer on probation are described as follows by Carswell LJ in his judgment at p 2:
'Until early 1995 the applicant appears to have progressed well in his post, and on 6 February 1995 he was informed that his ad hoc group had made a favourable report and his Director had recommended an enhancement of salary. About this time, however, he became involved in a dispute with one of the non-academic staff, in the course of which he considered that he was threatened and victimised and was the subject of religious discrimination. He was due to have a formal interview as part of the process of confirmation of appointment, but was informed by letter dated 30 March 1995 that the interview had been postponed. The reason for the postponement was that information relating to the applicant's conduct had come to the attention of the personnel staff of the University which they believed to be relevant to a decision about his confirmation in post, and they wished to investigate it.
The ad hoc group, after it had considered a number of matters relating to the applicant's conduct, recommended that the applicant should not be confirmed in post. They were of the view that he had seriously misled senior members of the University staff concerning his previous PhD studies at the University of Pittsburg and that since February 1995 he had been disruptive, confrontational and non-cooperative with his Head of Division and Director.
By letter dated 7 June 1995 the University's Personnel Officer Mr G R Camlin informed the applicant that his confirmation of post interview had been arranged for 29 June 1995 at 11.30 am. He stated that at the interview the Board of Curators would consider the reports of the ad hoc group and the Director of School, of which copies were furnished to the applicant. The letter went on to state:
"The Board will also consider a range of allegations related to your conduct during the course of your probationary period which, if substantiated, would be incompatible with your position as a probationary lecturer. These matters being:
1. Refusal to comply with reasonable instructions from your managers.
2. Withholding or omitting information in connection with your expulsion as a doctoral candidate at the University of Pittsburg on your submission at time of application and on subsequent occasions.
3. You applied for a period of extended leave to attend a conference and visit your family in America and failed to advise the University that you in fact needed part of this time to attend court in Pittsburg.
4. The marking/return of student exam scripts and projects along with the intrusion into Mr Nesbitt's Office on 6 June 1995.
5. An allegation that you have harassed a member of staff, Ms B Carroll.
6. Refusal to co-operate with the University's attempt to investigate allegations which you have made on a number of occasions against various members of staff.
7. A complaint from a member of staff, Mrs Groves (Student Accommodation Office), in connection with an allegation made against her and a further allegedly disruptive incident involving Mrs Reid (Non-Specialist Language Teaching Unit).
8. Complaints which have been received from an outside body closely linked with the University, in particular Queen's University Staff Common Room."
Meanwhile the Vice-Chancellor had suspended the applicant from his employment by a letter dated 6 June 1995, which read:
"Following a report from your Director of School I am concerned that your conduct is incompatible with your position in the University as a probationary lecturer. In particular your apparent refusal to return examination scripts from students and your intrusion into Mr Nesbitt's Office this morning.
In the circumstances I must advise you that you have been suspended with pay from your employment and your right of access to the University has been withdrawn pending consideration of these and other matters pertinent to your conduct at your confirmation in post interview on 29 June.
In the meantime you must return all the MSc (Finance) projects to Professor Moore immediately. Finally should you wish to gain access to your room to remove personal possessions etc you should contact Professor Moore who will make the appropriate arrangements."
...
The applicant and the solicitors then acting for him engaged in correspondence with the Vice-Chancellor and the Personnel Officer during June 1995, in which they disputed a number of matters and asked the Board to fix another date, since he had arranged to attend a conference in Jerusalem from 25 to 29 June. In his replies Mr Camlin informed him that it was vital that he should attend the interview with the Board of Curators, which was of paramount importance, since it could possibly lead to his not being confirmed in his post. He warned the applicant that if he failed to do so, the Board could consider his case in his absence, but offered to discuss how the University could mitigate his financial loss.
The applicant nevertheless elected not to attend the meeting of the Board of Curators on 29 June. The Board considered the correspondence and decided to proceed in his absence. It went through the allegations against the applicant in great detail and at substantial length with members of the University's personnel staff. Its members finally agreed unanimously (Professor Moore not taking part in the decision) to recommend that the applicant should not be confirmed in his post on the grounds that he was not a fit person to hold a post in the University.
Mr Camlin as Secretary to the Board conveyed this recommendation to the Secretary to the senate by letter dated 29 June, and sent a copy to the applicant. By letter dated 30 June 1995 the Vice-Chancellor informed the applicant as follows:
"The Board of Curators, at its meeting today, carefully considered the information and documentation in connection with your probationary period. The Board concluded the allegations which had been made against you were, in fact, substantiated and it recommended that you be not confirmed in post as a Lecturer in The Queen's University of Belfast.
I must, therefore, advise you that, under the authority delegated to me by the Senate, having consulted a Pro-Chancellor, your employment is to be terminated on three months' notice to take effect on 30 September 1995.
As Vice-Chancellor I have decided in the best interests of the University that during this period of notice your suspension continues on full pay.
For your information I enclose a copy of the letter from the Secretary to the Board of Curators setting out in detail the grounds for this decision."
The applicant lodged an appeal against the decision contained in the letter of 30 June. The solicitors now acting for him asked by letter of10 August to be allowed to represent him at the hearing of the appeal, but the Chairman of the Appeal Committee refused the request. The applicant did not appear before the Appeal Committee, claiming that his appeal could not be disposed of fairly without proper legal representation.
The Appeal Committee established by the Senate met on 1 September 1995 to consider the applicant's appeal. It was informed of the facts of the matter and considered the documentation and the grounds of appeal put forward on behalf of the applicant. It concluded that the appeal should not be upheld and so reported to the Senate on 20 September 1995.'
It is also relevant to state that the reasons for the decision of the board of curators to recommend that the appellant should not be confirmed in his post were stated as follows in a letter to the appellant from the Secretary to the board dated 5 July 1995:
'The Board unanimously agreed to recommend that Mr Deman be not confirmed in post and that his appointment be terminated on the grounds that he is not a fit person to hold a post in the University as provided for in Section 1(xii)(b) in the Conditions of Appointment and Criteria for Promotion of Academic Staff, p 230-232 of the Staff Handbook.
In particular, inter alia
(a) The Board viewed that Mr Deman refused to comply with reasonable instructions from management in connection with Ms Carroll.
(b) The Board agreed that by omission of information on his Curriculum Vitaes, Mr Deman was not acting in good faith and that he was deceitful in misleading staff of the University about the incompletion of his Ph.D. and about his extended leave. Mr Deman therefore breached an implied duty of his contract of employment to act honestly and in good faith.
(c) The Board agreed that Mr Deman treated his students in a disrespectful, threatening and dishonest manner and put in jeopardy the marking of their examinations.
(d) The Board agreed that Mr Deman bullied another member of staff, Ms Carroll, and that he refused to co-operate with those attempting to investigate the allegations that he made against her and other staff and therefore his allegations went unsupported by evidence.
(e) The Board noted that other members of staff of the University had been harassed by Mr Deman, eg. Mrs Groves, Mrs Reid and Dr Mercer and re-affirmed that the University has an obligation to protect staff from this type of behaviour.'
The statutes of the university
Before considering the submissions advanced on behalf of the parties it is necessary to refer to relevant provisions in the statutes of the university and to the changes made to them in pursuance to the Education (Academic Tenure) (Northern Ireland) Order 1988. The statutes in force prior to 1993 were made in 1981 and took effect from 1 January 1982. Chapter IX, para 6 provided:
'The Senate shall have power upon receiving a report of the Standing Committee or upon the representation of the Academic Council to take into consideration the conduct of any President and Vice-President of the University, Professor, Lecturer or Holder of Office provided for in these Statutes, and for good cause to remove him from his post; provided that the resolution for such removal shall not be carried unless supported by the votes of a majority of the then members of Senate and unless due notice and opportunity for showing cause against the exercise of such power shall have been given to such President and Vice-Chancellor, Professor, Lecturer or Holder of Office provided for in these Statutes.'
Chapter XV, para 1 provided:
'There shall be Boards of Curators to advise the Senate as to the appointment of:
(a) Professors
(b) Lecturers
(c) Such other classes of persons as the Senate may from time to time determine.'
Chapter XX related to the appointment of academic staff and to their retirement on grounds of age and para 2 provided:
'Professors and Lecturers of the University and such other classes of persons as the Senate may from time to time determine shall be appointed by the Senate on the recommendation of the appropriate Board of Curators.'
However, chapter XX contained no provisions relating to the dismissal of academic staff for good cause or for redundancy.
Chapter XXIII related to appeals to the visitor and provided:
'Any Professor or Lecturer or Holder of Office provided for in these Statutes who is removed by the University from his post and desires to appeal to the Visitor against such removal, shall lodge his appeal with the Convener of the Board of Visitors within two calendar months from the date of the resolution for his removal and shall forthwith give notice of the lodgement of such appeal to the Registrar who shall, on receipt of such notice, bring it before the next meeting of the Senate.'
Accordingly I consider that before the statutes were revised in 1993 pursuant to the 1988 Order there was a clear distinction between the procedures for the termination of employment of a probationary lecturer and the dismissal of an established lecturer. In the case of a probationary lecturer, pursuant to para (xii) of the procedure approved by the senate in October 1976 (which I have set out in an earlier part of this judgment) the board of curators would recommend that his appointment would be terminated, and under para (xvi) of the procedure the probationary lecturer would have a right of appeal to a committee appointed by the senate. In the case of an established lecturer pursuant to chapter IX, para 6 of the statutes, the senate would have power to dismiss for good cause, and under chapter XXIII of the statutes he would have a right of appeal to the visitor.
The law relating to the dismissal of academic staff was changed in an important way by the 1988 Order which came into operation on 5 December 1988 and was made for purposes corresponding to the purposes of ss 202-207 of, and Sch 11 to, the Education Reform Act 1988 in England. One of the important changes which was made was to permit the dismissal of academic staff by reason of redundancy. Article 3 provides:
'(1) There shall be a body of Commissioners known as the University Commissioners for Northern Ireland (in this Order referred to as "the Commissioners") who shall exercise, in accordance with paragraph (2), in relation to qualifying institutions, the functions assigned to them by this Order.
(2) In exercising those functions, the Commissioners shall have regard to the need:
(a) to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions;
(b) to enable qualifying institutions to provide education, promote learning and engage in research efficiently and economically; and
(c) to apply the principles of justice and fairness.
(3) The following are qualifying institutions for the purposes of this Order:
(a) The Queen's University of Belfast; and
(b) University of Ulster.'
Article 4 provides:
'(1) The Commissioners shall exercise the powers conferred by Article 5 with a view to securing that the statutes of each qualifying institution include:
(a) provision enabling an appropriate body, or any delegate of such a body, to dismiss any member of the academic staff by reason of redundancy;
(b) provision enabling an appropriate officer, or any delegate of such an officer, acting in accordance with procedures determined by the Commissioners, to dismiss any member of the academic staff for good cause;
(c) provision establishing disciplinary procedures determined by the Commissioners for dealing with any complaints made against any member of the academic staff relating to his appointment or employment;
(d) provision establishing procedures determined by the Commissioners for hearing and determining appeals by any members of the academic staff who are dismissed or under notice of dismissal (whether or not in pursuance of such provision as is mentioned in sub-paragraph (a) or (b)) or who are otherwise disciplined; and
(e) provision establishing procedures determined by the Commissioners for affording to any member of the academic staff opportunities for seeking redress for any grievances relating to his appointment or employment.
(2) No provision such as is mentioned in paragraph (1)(a) or (b) which is included in the statutes of a qualifying institution by virtue of Article 5 shall enable any member of the academic staff to be dismissed unless the reason for his dismissal may in the circumstances (including the size and administrative resources of the institution) reasonably be treated as a sufficient reason for dismissing him.
...
(5) For the purposes of this Article "good cause", in relation to a member of the academic staff of a qualifying institution, means a reason which is related to his conduct or to his capability or qualifications for performing work of the kind which he was appointed or employed to do; and in this paragraph:
(a) "capability", in relation to such a member, means capability assessed by reference to skill, aptitude, health or any other physical or mental quality; and
(b) "qualifications", in relation to such a member, means any degree, diploma or other academic, technical or professional qualification relevant to the office or position held by him.'
Article 5 provides:
'(1) For the purposes of performing the duty imposed on them by Article 4, the Commissioners may make such modifications of the statutes of any qualifying institution as they consider necessary or expedient.
(2) Modifications made for the purpose of securing that the statutes of a qualifying institution comply with the requirements of Article 4(1)(a) shall not apply in relation to a person unless:
(a) his appointment is made, or his contract of employment is entered into, on or after 20 November 1987; or
(b) he is promoted on or after that date.'
Article 7 provides:
'(1) The visitor of a qualifying institution shall not have jurisdiction in respect of any dispute relating to a member of the academic staff which concerns his appointment or employment or the termination of his appointment or employment.'
In exercise of the powers conferred by the 1988 Order an Order in Council was made and came into force on 12 May 1993 giving effect to modifications made by the University Commissioners for Northern Ireland to the statutes of the university. Pursuant to the modifications the power of the senate given by chapter IX, para 6 to dismiss academic staff was rescinded and a new chapter XX was inserted. The former chapter XX relating to academic staff was renumbered as chapter XXI and the former chapter XXIII relating to appeals to the visitor was repealed.
The new chapter XX set out a detailed code for the dismissal of academic staff for good cause and by reason of redundancy, and it also set out a code for disciplinary procedures in respect of conduct falling short of constituting possible good cause for dismissal.
The relevant paragraphs of chapter XX include the following:
'INTERPRETATION
Meaning of "dismissal"
4. In this Chapter "dismiss" and "dismissal" mean dismissal of a member of the academic staff and -
(a) include remove or, as the case may be, removal from office; and
(b) in relation to employment under a contract, shall be construed in accordance with Article 21 of the Industrial Relations (Northern Ireland) Order 1976.
Meaning of "good cause"
5. (1) For the purposes of these Statutes "good cause" in relation to the dismissal or removal from office or place of a member of the academic staff, being in any case a reason which is related to conduct or to capability or qualifications for performing work of the kind which the member of the academic staff concerned was appointed or employed to do, means
(a) conviction for an offence which may be deemed by a Tribunal appointed under Part III to be such as to render the person convicted unfit for the execution of the duties of the office or employment as a member of the academic staff; or
(b) conduct of an immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment; or
(c) conduct constituting failure or persistent refusal or neglect or inability to perform the duties or comply with the conditions of office; or
(d) physical or mental incapacity established under Part IV.
(2) In this paragraph -
(a) "capability", in relation to such a member, means capability assessed by reference to skill, aptitude, health or any other physical or mental quality; and
(b) "qualification", in relation to such a member, means any degree, diploma or other academic, technical or professional qualification relevant to the office or position held by that member.
14. (1) If there has been no satisfactory improvement following a written warning given under Stage 2 of the procedure in paragraph 13, or in any other case where it is alleged that conduct or performance may constitute good cause for dismissal or removal from office, a complaint seeking the institution of charges to be heard by a Tribunal appointed under paragraph 16 may be made to the Administrative Secretary who shall bring it to the attention of the President and Vice-Chancellor.
15. (1) In any case where the President and Vice-Chancellor has directed that a charge or charges be preferred under paragraph 14(6)(d), he shall request the Senate to appoint a Tribunal under paragraph 16 to hear the charge or charges and to determine whether the conduct or performance of the member of the academic staff concerned constitutes good cause for dismissal or otherwise constitutes a serious complaint relating to the member's appointment or employment.
16. A Tribunal appointed by the Senate shall comprise:
(a) a Chairman; and
(b) one member of the Senate, not being a person employed by the University; and
(c) one member of the academic staff nominated by the Academic Council.
18. (1) A Tribunal shall send its decision on any charge referred to it (together with its findings of fact and the reasons for its decision regarding that charge and its recommendations, if any, as to the appropriate penalty) to the President and Vice-Chancellor and to each party to the proceedings.
19. (1) Where the charge or charges are upheld and the Tribunal finds good cause and recommends dismissal or removal from office, but in no other case, the appropriate officer shall decide whether or not to dismiss the member of the academic staff concerned.
20. (1) The President and Vice-Chancellor shall be the appropriate officer to exercise the powers conferred by paragraph 19 and any reference to the appropriate officer includes a reference to a delegate of that officer.'
Part V of chapter XX contains detailed provisions under which a member of the academic staff who is dismissed may appeal against his dismissal.
Paragraph 28 provides:
'(1) Where an appeal is instituted under this Part the Senate shall appoint a person described in sub-paragraph (2) to hear and determine that appeal.
(2) The persons described in this sub-paragraph are -
(a) a person who is a member of the Board of Visitors of the University; or
(b) a person not employed by the University holding, or having held, judicial office or being a barrister or solicitor of at least ten years' standing.'
The submissions
The submissions advanced on behalf of the appellant by Mr Morgan QC were these:
1. The appellant had been dismissed for reasons which were all disciplinary reasons, with the arguable exception of his lack of good faith in giving misleading information about his doctorate from Pittsburg University.
2. The new chapter XX of the statutes governs the manner in which cases of a disciplinary nature involving academic staff (of whom, it was accepted, the appellant was one) were to be dealt with.
3. The new chapter XX was added to the statutes consequent upon the passing of the 1988 Education Order and Mr Morgan emphasised the wording of Art 4(1)(c) which provides:
'The Commissioners shall exercise the powers conferred by Article 5 with a view to securing that the statutes of each qualifying institution include-
...
(c) provision establishing disciplinary procedures determined by the Commissioners when dealing with any complaints made against any member of the academic staff relating to his appointment or employment; ... '
4. The new chapter XX operates to reduce substantially the former powers of the board of curators and if a disciplinary issue arises in the course of a board of curators' assessment of a probationer that issue must not be determined by the curators but by a disciplinary tribunal established under para 15 of chapter XX. Mr Morgan accepted that such a result may not have been intended but he submitted that this was the consequence of the manner in which chapter XX was drafted in wide terms referring to the dismissal of academic staff without any qualification in respect of staff on probation.
5. The difference between a recommendation for dismissal by the board of curators and a recommendation for dismissal by a tribunal under chapter XX was not a mere technicality, because if the complaints against the appellant had been considered by a tribunal under chapter XX there would have been a more formal hearing and the appellant would have been entitled to legal representation.
6. Therefore the procedure under which the complaints against the appellant were considered and his dismissal were illegal and void because the only lawful manner under the modified statutes whereby complaints about the conduct of a member of the academic staff can be considered is in accordance with the provisions of chapter XX, and the board of curators had no jurisdiction to determine the validity of disciplinary complaints as part of its assessment of the applicant's suitability for confirmation in post.
Mr Hanna QC for the respondent submitted that when the appellant was appointed as a lecturer on probation he entered into a contract of employment which was conditional. The contract was, in essence, a contract subject to a condition subsequent; the condition being that the contract would come to an end if the board of curators decided not to confirm his appointment at the end of the probationary period. Mr Hanna further submitted that the appellant was not 'dismissed' within the meaning of chapter XX but that his appointment 'terminated', which is the word used in para (xii)(b) in the probation procedure adopted by the senate in 1976.
Mr Hanna accepted that the disciplinary procedure laid down in chapter XX could be used by the university authorities against a probationary lecturer, but he submitted that this consideration did not mean that complaints of misbehaviour could not be considered by the board of curators and acted upon by it when carrying out its functions under para (xii)(b).
Carswell LJ rejected the submissions advanced on behalf of the appellant and stated at p 7 of his judgment:
'The procedure whereby appointments of lecturers are made subject to a probationary period has been in existence for some time. Its effect is that the initial appointment of the lecturer is conditional. It must be confirmed before it becomes a full appointment without time limit, and the Board of Curators must be satisfied before recommending confirmation in post that the lecturer has the necessary qualities as a teacher, scholar and person to justify it. If it is not so satisfied, then it will recommend either an extension of the probationary period or termination of appointment. In the latter case it appears that the appointment will come to an end at the end of the current academic year, being the last year of the probationary period, unless a longer period of notice is given pursuant to paragraph (xi)(b) of the procedure document. Such a termination is not in the ordinary sense a dismissal, since the appointment has come to an end by the efflux of time and has not been renewed on a permanent basis following a favourable recommendation from the Board of Curators. The references to a dismissal in the correspondence between the University and the applicant are to that extent misplaced. Mr Morgan QC for the applicant pointed out that Chapter XX, para 4(b) of the Statutes provides that in that Chapter 'dismissal' should be construed in accordance with Article 21(2)(b) of the Industrial Relations (NI) Order 1976. By that provision an employee is treated as having been dismissed for the purposes of unfair dismissal (if) he is employed for a fixed term and the term runs out without renewal. Such a provision is obviously necessary to make the unfair dismissal provisions fully effective, and is equally appropriate where one is dealing with dismissal for good cause, but it is not in point in the present type of case.
Dismissal of a member of the academic staff because of his conduct or performance has an entirely different provenance and is dealt with in Chapter XX of the University's Statutes. Under paragraph 14(1), where it is alleged that conduct or performance may constitute good cause (as defined in paragraph 14(5)) for dismissal, then charges have to be preferred against the member of the academic staff concerned and the matter has to be referred for hearing before a Tribunal appointed by the Senate. If it finds good cause and recommends dismissal, the Vice-Chancellor or his delegate decides whether or not to dismiss the member of staff.
The procedure for dismissal for good cause was introduced into the Statutes of the University in pursuance of the provisions of the Education (Academic Tenure) (NI) Order 1988, which was brought into law to modify the permanency of academic tenure and to make it possible for universities to dismiss members of academic staff for redundancy or for good cause. A body entitled the University Commissioners for Northern Ireland was constituted by the Order, having power to make modifications of university statutes in order to make them conform with the requirements of the Order. Article 4 required them to exercise their powers with a view to securing that the statutes of each university included the provisions specified in Article 4(1). Under Article 4(1)(a) and (b) there had to be provisions enabling an appropriate body or officer to dismiss any member of the academic staff for redundancy or for good cause, as defined in Article 4(5), which included a reason related to his conduct. Article 4(1)(c) required the inclusion of -
"provision establishing disciplinary procedures determined by the Commissioners for dealing with any complaints made against any member of the academic staff relating to his appointment or employment".
Counsel for the applicant submitted that this sub-paragraph gave the necessary statutory underpinning to the disciplinary procedures to make their exercise a matter of public law which could be the subject of judicial review.
It is in my opinion entirely clear that in following the procedure which it adopted, whereby the applicant's conduct was considered by the Board of Curators, the University was not purporting to follow the disciplinary procedure but was dealing with the matter as one of confirmation in post of a lecturer on probation. I think that any suggestion to the contrary is misplaced. The issue, however, is whether it ought to have followed the disciplinary procedure, in place of or in addition to the confirmation procedure, in order to adjudicate properly on the complaints made against the applicant. It was submitted on his behalf that that is the only lawful means within the Statutes whereby complaints about the conduct of a member of the academic staff can be considered, and that the Board of Curators had no jurisdiction to determine the validity of such complaints as part of its assessment of the applicant's suitability for confirmation in post.
I am unable to accept this argument. It is manifest that massive inconvenience would be created if the Board of Curators had to refer every part of the material which consisted of a complaint of a disciplinary nature to a tribunal or other authority for hearing instead of itself determining its validity. Moreover, the complaint may comprise only an insignificant part of the material which the Board has to consider. It is difficult to suppose that it could have been the intention of the Senate when it adopted Chapter XX of the Statutes that the Board should have to suspend determination of the confirmation procedure while the complaint goes to another body for a decision, then reconvene and have regard to that body's conclusion when determining the issue of confirmation. It is equally difficult to suppose that it intended that the body given the task of deciding the validity of complaints under Part III of Chapter XX should be required to express a conclusion on the validity of a complaint when the matter is referred to it by the Board of Curators but not to decide on any sanction. The whole tenor of Part III is that the hearing is bound up with the imposition of the appropriate sanction. The members of the Board of Curators, whose composition is provided for in Chapter XV, para 5 of the Statutes, are of high standing and seniority, which affords protection to the member of staff concerned against the possibility that the complaint may be determined by a body rather less able to judge its validity than the appropriate disciplinary body. These factors lead one to the conclusion that the applicant's contention is not well founded and that the Board of Curators was entitled to decide the issue of his confirmation in post, even though some of the material which they had to consider might have been the subject of a complaint in respect of which the procedure contained in Part III of Chapter XX could be invoked.'
If this court were to apply a strict and literal interpretation to the provisions of chapter XX, there would be considerable force in Mr Morgan's submissions. Mr Morgan can rely on the point that para 3(1) of chapter XX applies to academic staff, and it is clear that the appellant was a member of the academic staff. Mr Morgan can also rely on the point that the matters of complaint brought against the appellant largely appear to fall within the types of misconduct specified in para 5 of chapter XX. Further, whilst I consider that there is a conceptual difference between termination of the appointment of a probationer, and dismissal of a permanent member of staff, I am not satisfied (and I would wish to reserve my opinion on the point) that, as a matter of strict law, there is a valid distinction between 'termination of appointment' under the probation procedure and 'dismissal' under chapter XX, particular as para 4(b) of chapter XX states that in that chapter 'dismissal' in relation to employment under a contract 'shall be construed in accordance with Article 21 of the Industrial Relations (Northern Ireland) Order 1976' and art 21 provides that an employee shall be treated as dismissed if 'he is employed for a fixed term, (and) that term expires without being renewed under the same contract'. Therefore I think that on a strict and literal interpretation of chapter XX there would be an argument that the termination of the appellant's appointment constituted 'dismissal' within the meaning of chapter XX.
However adopting a purposive approach to the construction of chapter XX I consider that it was not the intention of Parliament or of the Commissioners that the board of curators would no longer have power to decide to terminate the employment of a probationary lecturer at the end of his period of probation by reason of complaints of misconduct against him, and that chapter XX does not operate to remove that power from the board.
In Kammin's Ballrooms Co v Zenith Investments (Torquay) [1971] AC 850, at p 879F Lord Diplock stated:
'My Lords, the closely balanced division of opinion in your Lordship's House and in the Court of Appeal as to the effect of section 29(3) of the Landlord and Tenant Act 1954, reflects once more competing approaches to the task of statutory construction - the literal and the purposive approach ...
Upon the literal approach, semantics and the rules of syntax alone could never justify the conclusion that the words "No application ... shall be entertained unless" meant that some applications should be entertained notwithstanding that neither of the conditions which follow the word "unless" was fulfilled. It is not the meaning of "entertained" that makes this conclusion impossible. It would be equally impossible whatever verb in the passive voice were substituted. It can be justified only upon the assumption that the draftsman of the Act omitted to state in any words he used in the subsection an exception to the absolute prohibition to which Parliament must have intended it to be subject.
A conclusion that an exception was intended by Parliament, and what that exception was can only be reached by using the purposive approach. This means answering the questions: What is the subject-matter of Part II of the Landlord and Tenant Act, 1954? What object in relation to that subject-matter did Parliament intend to achieve? What part in the achievement of that object was intended to be played by the prohibition in section 29(3)? Would it be inconsistent with achievement of that object if the prohibition were absolute? If so, what exception to or qualification of the prohibition is needed to make it consistent with that object?'
In Pepper (Inspector of Taxes) v Hart [1993] AC 593, at p 635D Lord Browne-Wilkinson referred to 'the purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature', and in Deutsche Genossenschaftsbank v Burnhope [1995] 4 All ER 717, at p 726d Lord Steyn referred to 'the shift during the last two decades from a literalist to a purposive approach to the construction of statutes'.
Leaving aside the question whether there is a distinction in point of strict law between 'termination of appointment' and 'dismissal', I consider that there is a difference, arising from considerations which are fair and reasonable, between deciding to terminate the employment of a probationer and deciding to dismiss an established member of staff. This difference has been recognised to some extent by industrial tribunals and by the Employment Appeal Tribunal. In Hamblin v London Borough of Ealing [1975] IRLR 354, at p 356 the majority view of the industrial tribunal was stated as follows:
'The majority view is as follows and it is, of course, the majority view which prevails. The whole matter must be viewed within the context that Mrs Hamblin's was a probationary appointment. That is not to say that probationary appointments are removed from the ambit of the Trade Union and Labour Relations Act. Nothing could be further from the truth. The fact remains that a probationary period is very much a trial period. The probationary employee knows that he is on trial and that he must put his right foot forward and establish suitability for the post. The employer, on his side, must give the applicant a proper opportunity to prove himself but he reserves to himself the right to determine the employment on a month's notice provided he has reason for his action. We think that the test of reasonableness in the case of probationary appointments is not quite the same as in the case of an employee in another category.'
And in White v London Transport Executive [1981] IRLR 261, at p 263 in giving the decision of the Employment Appeal Tribunal Browne-Wilkinson J (as he then was) stated:
'For ourselves we consider that in relation to probation the law would be ill-advised to imply detailed contractual rights relating to the rights of a probationer. We think that the right term to imply is that which the Industrial Tribunal took in this case, namely, an obligation on the employer to take reasonable steps to maintain an appraisal of a probationer during a trial period, giving guidance by advice or warning where necessary.'
I consider that this difference is particularly apposite in relation to the academic staff of a university. Where a lecturer has served a probationary period and has been confirmed in his appointment, it is entirely fair and reasonable that he is entitled to know that he cannot be dismissed from his position unless for good cause or redundancy and that, as art 3(2)(a) of the 1988 Order states, he will:
'... have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing himself in jeopardy of losing his job or privileges he may have at his institution.'
However, I consider that there may be some cases in relation to a probationer lecturer where his conduct and/or his skill or aptitude are such that his senior colleagues and the board of curators would be entitled to form the opinion that he was not a suitable person to become a permanent member of the academic staff with the permanent security of tenure (subject to dismissal under chapter XX) which this entailed, although his conduct and/or his defects in skill or aptitude were not such as to justify dismissal of a permanent lecturer under the standards laid down in chapter XX. In such cases, having regard to the provisions for advice and guidance contained in the 1976 probation procedures, and having regard also to the fact that it is made abundantly clear to the new lecturer that he is being appointed on probation and the probation procedure is fully set out in the document sent to him with the letter of appointment, I consider that there is nothing unreasonable or unfair in the probation procedure under which the board of curators considers whether or not to confirm the probationer in his appointment, rather than that the issue of confirmation or termination of appointment is dealt with as a disciplinary matter under chapter XX.
In my opinion, before the inclusion of the new chapter XX in the statutes, the issue before the board of curators as the probationary period of a lecturer came to an end was not one of guilt or innocence in relation to some disciplinary complaint or complaint of incapacity - it was whether or not the probationer should be confirmed in his appointment.
In the light of these considerations, including the consideration that the position of a person on probation has been well established and recognised in academic and other spheres for many years, I consider that the purpose of Parliament and of the University Commissioners was to make provision for the dismissal of established members of the academic staff for redundancy and for good cause, and that it was not the intention to abolish the function of the board of curators in relation to deciding whether to confirm or terminate the appointment of a probationer and to abolish the probation procedure adopted by the senate in 1976 in relation to complaints which were capable of falling within the definition of 'good cause' in chapter XX.
I understood Mr Morgan to accept that there could be cases where some of the adverse considerations relating to a probationer lecturer would not come within the ambit of chapter XX, although other adverse considerations relating to his conduct would. In relation to such a situation I am in respectful agreement with the observations of Carswell LJ at p 10 of his opinion that:
'It is manifest that massive inconvenience would be created if the Board of Curators had to refer every part of the material which consisted of a complaint of a disciplinary nature to a tribunal or other authority for hearing instead of itself determining its validity. Moreover, the complaint may comprise only an insignificant part of the material which the Board has to consider. It is difficult to suppose that it could have been the intention of the Senate when it adopted Chapter XX of the Statutes that the Board should have to suspend determination of the confirmation procedure while the complaint goes to another body for a decision, then reconvene and have regard to that body's conclusion when determining the issue of confirmation. It is equally difficult to suppose that it intended that the body given the task of deciding the validity of complaints under Part III of Chapter XX should be required to express a conclusion on the validity of a complaint when the matter is referred to it by the Board of Curators but not to decide on any sanction.'
Moreover it is clear from paras 13 and 14(1) of chapter XX that there may be misconduct on the part of a permanent lecturer which will give rise to an oral warning or a written warning, but which will not in itself justify dismissal for good cause. I do not think that the University Commissioners intended that the appointment of a probationer could only be terminated if he was guilty of conduct which would have been sufficiently serious to justify dismissal for good cause under chapter XX and that his appointment could not be terminated where he had behaved in such a way as to call for an oral or written warning if he had been a permanent lecturer.
Part of the argument before Carswell LJ and before this court related to the point whether the appellant was entitled to apply for judicial review and whether his claim gave rise to an issue in public law. As I am satisfied that the board of curators and the university authorities acted lawfully and within the scope of their powers, the appellant's application must fail and it is therefore unnecessary to decide the question whether or not the application gave rise to an issue of public law, and I express no opinion on the point.
I would dismiss the appeal.
JUDGMENT BY MacDERMOTT LJ
Since preparing my judgment in draft I have had the opportunity to read that of the Lord Chief Justice. As it so fully reflects my own conclusions I consider that no useful purpose would be served by delivering a separate judgment dismissing this appeal.
I would, however, make one general observation. Probation is a status of some considerable antiquity in academic and other circles. It gives both the employer and employee time in which to assess the situation in the light of practice and experience: the probationer will have an opportunity to assess the 'pros and cons' of his post: the employer will have time to examine the competence of the probationer as it appears, not at interview, but in the real world of teaching, research and personal relationships. The probationary period also gives the employer, in this case a university, the opportunity to advise and assess the probationer before taking the critical step of confirming him as a permanent member of staff who may be in post for 30 or 40 years. When a probationer is not confirmed in post it may be because of poor conduct but more likely because of some reason relating to capability or compatibility. Mr Morgan pointed out that dismissal for 'good cause' includes not only misconduct but reasons which are related to capability or qualifications for performing work (chapter XX, art 5(1)). Therefore, he submitted all such issues should be determined by the disciplinary tribunal and not by the board of curators. He readily accepted that thereby the classic role of a board of curators would be emasculated and the effective oversight of probationers by boards of curators would be brought to an untimely end. I cannot accept that this was the intention of Parliament when it passed the 1988 Order which required in effect the introduction of a new dismissal procedure into the statutes of this and every other university. The purpose of chapter XX can be ascertained by reading art 4(1) of the 1988 Order - it was to give academic staff the protection of a formal disciplinary procedure because not only could such persons be dismissed for 'cause' but could after the introduction of the new statutes in 1993 be dismissed for redundancy. All that is fair and understandable but to my mind was never meant to undermine fatally the necessary and important duties performed by boards of curators for many years. If the 'de facto' demise of the boards of curators had been intended I would have expected that to be declared openly and in clear language.
For my part I am satisfied that a purposive construction of the various relevant statutes and contractual documents is entirely appropriate. Adopting such an approach the many benefits of the probationary system are preserved and boards of curators will be able to continue to perform their important role in university life: a role so well described in the words of para 2 of the introduction to the conditions of appointment:
'Boards of Curators are charged with one of the most important tasks in the University, the choice of those who will influence the education of future generations of students and who will continue the high standard of scholarly work. From their central position the Boards can take an overall University view of standards and the use of criteria, and have the duty of applying them impartially in the interests of the University and its students as well as of the lecturer.'
I agree that this appeal should be dismissed.
JUDGMENT BY NICHOLSON LJ
I have had the opportunity of reading the judgment of the Lord Chief Justice and of MacDermott LJ since I prepared my own judgment in draft.
There is no obligation on the senate of the university to make appointments to lectureships without fixing a period of probation, so long as that period does not exceed 4 years. The contract between the university and the newly appointed lecturer is such that the contract is subject to a condition subsequent. If the probationer fails to comply with the requirements demanded of him under his contract of appointment which is subject to confirmation, the university is entitled to avoid the contract.
The legal effect of an appointment subject to the confirmation procedure is that the appointment does not become complete and unqualified unless and until the conditions laid down in the confirmation procedure have been satisfied. The satisfaction of the conditions is part of the process of appointment, not of dismissal. The appellant's appointment may never become unconditional.
The board of curators, a committee of the senate, is entrusted with the supervision of the probationer. One of the functions of the board of curators is to satisfy themselves that the newly appointed lecturer has the qualities as a teacher, scholar and person to justify recommending a confirmation in post. They have power to recommend extension of the period of probation. Their procedure has much more flexibility than the procedure under chapter XX of the statutes which relates to dismissal from post but also sets out a code for disciplinary procedures. Their procedure is designed to assist the newly appointed lecturer as well as to monitor his progress on probation.
There is no obligation on their part under the terms of the probationer's contract to refer matters of a disciplinary nature to a disciplinary committee under chapter XX of the university statutes whilst the newly appointed lecturer is under probation. The termination of the probationer's appointment on the recommendation of the board of curators does not amount to dismissal which falls to be dealt with under chapter XX.
If my approach is too simplistic, then I unreservedly adopt the reasoning of the Lord Chief Justice.
DISPOSITION
Appeal dismissed.
SOLICITORS
Cleaver Fulton & Rankin for the appellant
L'estrange and Brett for the respondent
DOMINIC MCGOLDRICK BARRISTER
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