Erica Connor was employed by Surrey County Council as a head teacher at a mainly Muslim school. In February 2003, Paul Martin and Mumtaz Saleem, both Muslims, joined the governing body.
There was increasing tension between the school and the governing body due to Martin and Saleem’s actions as part of a campaign to increase the role of the Muslim religion in the school. This caused frustration and distress to Connor, who informed the council that the situation was intolerable on a number of occasions from 2004 onwards.
In 2005, Martin accused Connor of racism and Islamophobia. The council commissioned an investigation which reported in August 2005. In October 2005, the council replaced the governing body with an Interim Executive Board (IEB). But in September 2005, Connor was signed off work with clinical depression. She brought a claim against the council for negligence.
The High Court held the council’s duty of care to Connor to take reasonable steps to protect her mental health required them to replace the school’s governing body with an IEB from May 2005. The High Court also held the decision to investigate the complaint of racism against Connor was made in disregard of the council’s duty of care. The High Court awarded Connor £387,778 in damages.
The council appealed, claiming the High Court’s decision that the council should have initiated a procedure for establishing an IEB no later than February 2005 was incorrect. It also claimed the negligent actions fell within the council’s public law functions, and could not be used as a basis for a private law personal injury claim. When exercising this public law power, local authorities must engage in a balancing act when deciding whether or not to intervene, considering the positive and negative effects of intervention. The council argued the negative effects of intervention (such as disrupting pupils) outweighed any possible benefit.
The Court of Appeal held there were marked warning signs of Connor’s vulnerability from June 2004, and by early 2005 the overall situation concerning the governance of the school and the wellbeing of the staff was grave. It was clear from the evidence that the actions of Martin and Saleem had had a negative effect on both pupil and staff performance. It was reasonable for the High Court to find that the council should have issued a formal warning to the governing body of the school, and should have initiated a procedure for establishing an IEB no later than February 2005.
The Court of Appeal considered the existing case law on the interaction between statutory discretion (in this case, the discretion of the council to intervene where the actions of a governing body of a school are of concern), and the duty of care owed to the claimant, where the duty of care is independent of the action or inaction under statute. Judge Laws held that a court may require public law powers to be used to fulfil a pre-existing private law duty of care as long as it is consistent with the performance of its public law obligations.
This was an unusual case with an unusual outcome, as it is likely to be rare that damages for negligence relating to the use of a public law power will be available to claimants. But the case acts as a warning to councils that where there is conflict between a school and its governing body, the council must pay regard to its duty of care towards its employees.
Mary Clarke, employment partner, DLA Piper