Mr H Siddique v Batley Multi Academy Trust and Mr A Kang: 1801938/2023

EMPLOYMENT TRIBUNALS

Case No 1801938/2023

Between

Mr H SiddiqueClaimant

Batley Multi Academy Trust and Mr A KangRespondent

Before

Employment Judge Cox

Date 6 October 2023

JUDGMENT

[1]The name of the First Respondent is amended to Batley Multi Academy Trust.

[2]The claim fails and is dismissed.

REASONS

[1]The Claimant used to work as a teacher at Upper Batley High School (“the School”), one of the six schools that make up the First Respondent Trust. He presented a claim to the Tribunal alleging that the Second Respondent, the Headteacher of the School, had victimised him in the way he responded to reference requests from prospective new employers once the Claimant had left the School.

[2]It is unlawful for an employer to victimise a former employee in a way that arises out of and is closely connected to a relationship which used to exist between them (Section 108(1) of the Equality Act 2010 (EqA), as interpreted by the Court of Appeal in Rowstock Ltd v Jessemey

[2014] EWCA Civ 185

). Victimisation is where an employer subjects a person to a detriment because he has done a protected act. A protected act is defined in Section 27(2) EqA and includes alleging that the employer has discriminated unlawfully.

[3]At a Preliminary Hearing on 7 June 2023, the Tribunal clarified the claim with the Claimant’s representative and the issues were identified.

[4]In his claim form, the Claimant said that he had been victimised because of “various incidents, which led to the claim, which led to the signing ACAS COT3 agreement dated 31 May 2022”. At the Preliminary Hearing the Claimant’s representative identified more precisely what the protected act was. It was the Claimant’s approach to ACAS in May 2022 under the early conciliation procedure on an earlier occasion on which he had intended to bring a claim of race discrimination against the First Respondent and a fellow employee, DG. On that earlier occasion, his allegation was that DG had made a racist comment in relation to a student.

[5]At the Preliminary Hearing, the Claimant’s representative also clarified the alleged detriments. The Claimant alleged that, because he had done that protected act, Mr Kang had provided adverse and/or misleading references for him on two occasions:5.1 On 13 January 2023 in relation to a role he had applied for at Leeds East Academy and

5.2 On 26 January 2023 in relation to a role he had applied for at Leeds West Academy. Preliminary matters

[6]The Claimant attended the main Hearing without his representative. He said that he had been informed only the previous evening by his trade union that his representative would not be available because of a family emergency. The Tribunal explained to the Claimant that he could apply for the Hearing to be postponed but the Claimant confirmed that he was content to continue with the Hearing.

[7]As a result of action by an ACAS conciliation officer under the early conciliation procedure in relation to the Claimant’s earlier potential claim, the Claimant agreed on 26 May 2022 to settle that claim. The agreement said that the Claimant accepted the settlement sum in full and final settlement of any claims that he had or might have now or in the future against the First Respondent in connection with his employment, including any claim of victimisation under the Equality Act 2010. During negotiations on the terms of the agreement, the Claimant’s union representative asked for the agreement not to exclude future legal claims. The Trust was not prepared to agree to that because it considered the settlement sum to be relatively generous and it wanted to ensure that it was able to move on once the agreement had been concluded.

[8]The Tribunal was satisfied that this agreement had the effect of preventing the Claimant from proceeding with his claim against the First Respondent, because he had made a contract with the assistance of an ACAS conciliation officer that excluded his right to bring a claim of victimisation in the future (Section 144(4)(a) EqA).

[9]The Tribunal still, however, needed to decide whether the claim against the Second Respondent succeeded, since an employee can be personally liable for victimisation (Section 110(1) EqA). The remaining issues were:9.1 Did Mr Kang provide adverse and/or misleading references on two occasions as alleged?

9.2 If so, did that amount to subjecting the Claimant to a detriment?

9.3 If so, was it done because the Claimant had done the protected act of approaching ACAS in May 2022?

The evidence

[10]At the Hearing, the Tribunal heard oral evidence from the Claimant. His witness statement was largely comprised of general statements that the School had made a determined effort deliberately to sabotage his employment prospects. He said that the School had “rescinded their reference agreement and proceeded to provide negative references to prospective employers by labelling me as ‘untrustworthy’ and ‘they would not employ me again’.” The statement contained no more detailed evidence on exactly how and when the School had breached its agreement and provided negative references, even though it appeared to have been drafted with the assistance of his representative. As the Claimant was unrepresented on the day of the Hearing, the Tribunal considered it appropriate and fair to give him, as an unrepresented party on the day of the Hearing, an opportunity to adopt those paragraphs in his claim form that provided more detail about what he said had happened. He did so.

[11]For the Respondents, the Tribunal heard oral evidence from Mrs Page, who at the relevant time was the First Respondent’s Director of Human Resources, and Mr Kang.

[12]The Tribunal was also referred to various documents in a Hearing file. On the basis of that evidence, the Tribunal made the following findings. Background facts

[13]The Claimant’s duties involved teaching sports and physical education and on occasions covering lessons in other areas of the School. He began working at the School in October 2014 and until May 2022 his relationship with Mr Kang was good.

[14]In March 2022, however, staff raised concerns with Mr Kang and Ms McLean, then the Operations Director, that the Claimant had been aggressive during a staffroom discussion about Ukraine and Palestine. Other staff raised separate concerns about the Claimant having made inappropriate comments to and about female staff.

[15]On 9 March 2022 Mr Kang and Ms McLean met the Claimant to explain that concerns had been raised about him that needed to be investigated under the School’s disciplinary policy. The Claimant got angry and upset and said he was going to leave. He wrote a resignation letter and signed and dated it. Mr Kang asked him not to make a rash decision. The Claimant called his wife and told her he had decided to leave. Mr Kang and Ms McLean did not accept his resignation during the meeting (although, in legal terms, whether they accepted it or not was immaterial) because they thought that he was upset and acting in the heat of the moment. About a week later the Claimant did formally retract his resignation. After the meeting, further complaints were made to Mr Kang that the Claimant had made inappropriate comments to female members of staff. These would have needed to be investigated if the Claimant had not left the School.

[16]On 16 March 2023 the Claimant presented a written grievance against a number of colleagues, including Mr Kang and Ms McLean, raising a number of issues. He said that in fact certain members of staff had been aggressive towards him during the conversation in the staffroom, because of his race or religion. He also said that Mr Kang and Ms McLean had pressurised him into resigning in the meeting, taking advantage of the fact that they knew he was vulnerable because of previous health issues. He raised again the allegedly racist comment by DG that had been the subject of his earlier potential claim to the Tribunal. On the same day he went off on sick leave and did not return to work until his employment ended. The Claimant asked Mrs Page, who was his point of contact for his grievance, to postpone any investigatory meeting into his grievance until he was fit to attend. As the School had decided to deal with the grievance before it investigated the disciplinary matters, no disciplinary investigation took place before the Claimant left.

[17]It was in this period the Claimant’s union representative approached the School to discuss the possibility of an agreed exit package. Mrs Page, on behalf of the Trust, was prepared to negotiate such a package because she realised that the relationship between the Claimant and the School’s management had broken down. These discussions resulted in the settlement agreement through ACAS mentioned above.

[18]The settlement discussions also covered an agreed reference. Mr Kang provided some wording which the Claimant accepted. This gave the dates of the Claimant’s employment at the School and detailed the duties he had performed and the training he had received. Mr Kang used the agreed text in reference requests that he subsequently received from prospective employers. The agreement itself made no mention of how the School was to respond to reference requests from prospective future employers. Mrs Page accepted in her evidence to the Tribunal that, with hindsight, this should have been given more thought. Leeds West Academy

[19]In June 2022, the School received a reference request from Leeds West Academy, to whom the Claimant had applied for a job. On 17 June 2022 Mr Kang sent them a reference in the agreed terms but Leeds West then asked him to complete a pro forma reference request that posed questions relevant to the Claimant’s suitability for the role for which he was applying. Mr Kang sought advice from HR and they decided that they should limit themselves to the text of the agreed reference and not complete the pro forma. Mr Kang wrote to confirm that the School could only provide the reference it had already sent. There was no response from Leeds West.

[20]The Tribunal finds that Mr Kang did not provide an adverse and/or misleading reference to Leeds West on 26 January 2023. The Claimant accepted that there was no documentary evidence that he did. In fact, Mr Kang provided a reference in June 2023, and in terms that had been agreed with the Claimant and with which the Claimant was happy, as he confirmed in the Tribunal Hearing.

[21]Mr Kang did refuse to complete the pro forma and the Tribunal accepted that amounted to subjecting the Claimant to a detriment: a reasonable worker would or might have taken the view that it was to their detriment that the School was refusing to complete the pro forma (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

). But Mr Kang did not decline to complete the pro forma because the Claimant had approached ACAS earlier in the year in relation to a potential claim of race discrimination. Rather, he declined to complete it because a text for a reference had been agreed with the Claimant as part of the settlement discussions in relation to that potential claim and he did not consider it appropriate or wise to depart from the agreed reference text.

[22]As the Tribunal did not accept that Mr Kang had provided an adverse and/or misleading reference to Leeds West, and as the Tribunal also found that, in any event, his response to their reference request was because of his desire not to depart from the agreed reference text rather than because of the Claimant’s approach to ACAS in May 2022, this allegation against the Second Respondent failed and was dismissed. Leeds East Academy

[23]On 13 January 2023, Mr Kang received another pro forma reference request, this time in respect of a job for which the Claimant had applied at Leeds East Academy. In his application, the Claimant had said that he left his employment at the School because of “sudden death of a family member”.

[24]On this occasion, Mr Kang did complete the pro forma. He provided generally favourable responses to questions about the Claimant’s employment, confirming, for example, that his job performance was “good”, his relationships with colleagues were “acceptable” (even though the Claimant had in fact been dispute with some of his colleagues before he left), and answering “no” to the question as to whether there were any current disciplinary issues outstanding (when in fact there were). Where the form asked, “Having considered the job description and person specification would you recommend the applicant for this post?”, Mr Kang responded “yes”. However, in response to the question in box 9 of the form “Would you re-employ this person should a suitable vacancy arise?” Mr Kang said “No”.

[25]The Tribunal accepts that responding “No” to the question in box 9 did amount to subjecting the Claimant to a detriment. It would clearly be reasonable for the Claimant to consider it to be a detriment for his former employer to state that it would not re-employ him, even if the other responses on the pro forma were favourable to him. The issue for the Tribunal was, did Mr Kang give that answer because of the Claimant’s approach to ACAS in May 2022?

[26]In his witness statement, Mr Kang said he gave the answer he did because he had believed it was Trust policy not to re-employ someone whose employment had ended in circumstances of conflict and dispute, as the Claimant’s had. However, when questioned about that evidence, he confirmed that he had never been told that that was Trust policy, he had just assumed that it would be. He was influenced in that assumption by his own view that it would not be in the interests of the School or the employee concerned for the employee to re-join the staff if the employee’s previous employment had ended in dispute. As explained further below, once HR told Mr Kang that that was not in fact Trust policy, he confirmed to another potential employer that the Trust would re-employ the Claimant. There was no evidence before the Tribunal to indicate that Mr Kang’s response in box 9 was influenced in any way by the Claimant’s approach to ACAS the previous year in relation to his earlier potential Tribunal claim.

[27]Leeds East told the Claimant that the conditional job offer it had made him was withdrawn because “having scrutinised your application form and references received and having heard your explanations for the discrepancies raised, we regret to inform you that you have not passed the pre-employment checks satisfactorily”.

[28]The Claimant wanted to know why the reference provided by the School had been viewed as unsatisfactory and his union representative contacted Ms McLean to find out who had written it and what it said. By this stage, the Claimant had approached ACAS again under the early conciliation procedure relating to the claim before the Tribunal. By now, Mr Kang and the Trust had decided to stick to just providing the written letter of reference in the terms that had previously been agreed with the Claimant. When the Claimant applied for a job at Lawnswood School, however, and it asked the School some additional questions, Mr Kang answered them. In response to the question, “Would you consider this person for re-employment should a suitable vacancy arise?” Mr Kang answered “yes”.

[29]As will be apparent from the findings above, the Tribunal did not accept that Mr Kang answered “No” in box 9 of Leeds East’s pro forma reference request because the Claimant had approached ACAS in May 2022. He gave that response because he assumed the School would not re-employ someone whose employment had ended in circumstances of conflict and dispute, as the Claimant’s had. This allegation therefore failed and was dismissed. Summary

[30]In summary, the claim against the First Respondent failed because the Claimant had entered into a binding agreement through ACAS not to present a claim against it. The claim against the Second Respondent failed because the Tribunal did not accept that Mr Kang had acted as alleged in relation to the reference request from Leeds West Academy and, in any event, Mr Kang’s actions in relation to the reference requests from both Leeds West and Leeds East Academies were not because of the Claimant’s approach to ACAS in May 2022.