Veitch Penny LLP - Exeter | Crediton, Devon

Case

Healy v Bridgend County Council - C.A (14/11/02)

Issues

(1) Wrongful dismissal - resignation
(2) Retirement on grounds of ill health
(3) Cessation of pensionable employment
(4) Teachers' Pensions Regulations

Facts

This was an appeal by the Claimant from the Cardiff County Court on 4 July 2002 dismissing a claim for damages caused by her alleged wrongful dismissal as head teacher.

She had been employed by the Defendant since January 1996 and in July 1999 she had become unwell and had a period of long term sick leave. She received six months salary up to December 1999 and half pay for the next six months. Under the Teachers' Pensions Regulations 1997 she was entitled to the payment of retirement benefits.

In the summer of 1999 she and a union representative met with the Director of Education of the Local Authority and it was agreed that on account of her health she would make an application for retirement benefits.

In January 2000 she completed a form that required the Defendant to certify that she was retiring on grounds of ill health and in June of that year they confirmed to her that her application has been accepted and she had been judged eligible for her pension in a lump sum. In July 2000 the Defendant wrote to the Applicant informing her her last day of pensionable sick leave would be 30 June and that her Contract of Employment ended on that day on the grounds of ill health.

The Applicant submitted that:-

(i) there had not been an agreed retirement date
(ii) she had not asked to retire nor had she resigned
(iii) the letter written in July was notice terminating her employment and accordingly she sought damages.

The Defendant maintained that termination was by way of mutual agreement or that she had resigned in June and had therefore not been dismissed.

The Judge determined that her decision to retire on grounds of ill health was a decision to give up her employment and was satisfied that informing the Defendant of her decision to retire she had impliedly agreed to retire from her employment on becoming entitled to payment of these benefits.

Decision

It was held that the Recorder was wrong to find there was an implied agreement to retire. There was either an agreement or not and it was the terms that were to be implied.

It was clear that in the meeting of 1999 the Applicant had not only confirmed that she would be applying for ill health retirement but she also conveyed a decision to retire on those grounds. That amounted to notice of resignation.

As she was ill and absent from work she was entitled to be paid her salary in full but once she had claimed permanent incapacity then she could not receive her full salary and therefore had to cease pensionable employment.

Her application had been on the basis that this entitlement arose on 30 June 2000 when her sick pay was ceased.

This was more than a statement of future intention to retire as she knew she would not be returning to work since she was permanently incapacitated and she applied to a third party for retirement benefits and gave the Defendant notice of her decision to retire.

The letter of 7 July written by the Defendant could not be treated as an act of dismissal on their part and it was clear that the Applicant was willing to retire if and when she received the benefit. Her employment had therefore been terminated by reason of her resignation on 30 June and the appeal would be dismissed.

Comments

To summarise, the Applicant having informed the Defendant of her wish to retire on grounds of ill health with her application for retirement benefits being accepted by a third party, it is clear here that she had given the Defendant notice of her intention to retire and any follow up letter confirming the date when her Contract finished could not therefore be construed as wrongful dismissal.