Mr D A Dotting v Secretary of State for Education (sued as The Teaching Regulation Agency): 2217651/2023

EMPLOYMENT TRIBUNALS

Case No 2217651/2023

Between

Mr D A DottingClaimant

Secretary of State for Education (sued as The Teaching Regulation Agency)Respondent

Before

Employment Judge Henderson

In person for claimant

Ms I Saran (instructed by Counsel) for respondent

Date 25 October 2024

JUDGMENT

[1]The Tribunal does not have jurisdiction to hear the claims in this case. They are accordingly dismissed.

[2]The Final Hearing scheduled for 8 to 14 January 2025 should be removed from the Tribunal’s Lists.

REASONS

[1]This was an Open Preliminary Hearing to decide whether the Tribunal had jurisdiction to hear the claimant’s claims for race discrimination and victimisation against the respondent (TRA). These claims are made in relation to the manner in which the TRA had handled the claimant’s complaints brought against several of his fellow-employees at Fulham Cross Academy Trust (FCAT). 1 of 8

[2]The claim form was presented on 17 December 2023 and the response form was received on 5 February 2024. ACAS early conciliation took place from 23 October 2023 until 4 December 2023. The claimant clarified the nature of this claims at a Case Management Preliminary Hearing (CMPH) before EJ Robinson on 5 April 2024.

[3]At that CMPH, the claimant clarified for the first time that he was relying on section 53 of the Equality Act 2010 (EQA), and he maintained that TRA was a “qualifications body” within the meaning of that section. EJ Robinson made Orders for each party to clarify their position with regard to the question of the Employment Tribunal’s jurisdiction.

[4]The TRA argued that that it was excluded from the application of section 53 EQA. This was because of the statutory exemption at section 54 (4) (d) which stated that a body is not a qualifications body to which section 53 applies “in so far as it exercises functions under the Education Acts”. TRA referred to section 141B of the Education Act 2002 which gave the Secretary of State for Education powers to investigate the referral of allegations made concerning unacceptable/unprofessional conduct of members of the teaching profession. The Secretary of State appointed TRA to conduct such investigations.

[5]Therefore, TRA maintained that it was exercising functions under the Education Acts when conducting the investigation of the complaints raised by the claimant and so was excluded from section 53 – this meant the Tribunal had no jurisdiction to hear the claims brought by the claimant in this case.

The relevant law

[6]Equality Act 2010 (EQA) 53 Qualifications bodies(1) A qualifications body (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding upon whom to confer a relevant qualification; (b) as to the terms on which it is prepared to confer a relevant qualification on B; (c) by not conferring a relevant qualification on B. (2)A qualifications body (A) must not discriminate against a person (B) upon whom A has conferred a relevant qualification— (c) by withdrawing the qualification from B; (d) by varying the terms on which B holds the qualification; (e) by subjecting B to any other detriment.

(2) A qualifications body must not, in relation to conferment by it of a relevant qualification, harass— (a) a person who holds the qualification, or 2 of 8 (b)a person who applies for it. (4) A qualifications body (A) must not victimise a person (B)— (b) in the arrangements A makes for deciding upon whom to confer a relevant qualification; (c) as to the terms on which it is prepared to confer a relevant qualification on B; (d) by not conferring a relevant qualification on B. (5)A qualifications body (A) must not victimise a person (B) upon whom A has conferred a relevant qualification— (e) by withdrawing the qualification from B; (f) by varying the terms on which B holds the qualification; (g) by subjecting B to any other detriment. (6)A duty to make reasonable adjustments applies to a qualifications body. (7) The application by a qualifications body of a competence standard to a disabled person is not disability discrimination unless it is discrimination by virtue of section 19. Section 54 Interpretation – for the purposes of section 53 (2) A qualifications body is an authority or body which can confer a relevant qualification. (4) An authority or body is not a qualification body in so far as- [(a)-(c)…not relevant to this case] (d) it exercises functions under the Education Acts Section 212 EQA – defines “education acts” by reference to section 578 of the Education Act 1996. Section 578 (as amended on 24 July 2002) includes the Education Act 2002. Section 141B and Schedule 11A of the Education Act 2002

[7]The claimant referred to the case of Michalak v GMC

[2017] UKSC 71

and I have noted the case of Ministry of Defence v Rubery

UKEAT/2024/165

which has been recently reported. This case was not cited by either party at the Preliminary Hearing and I have given them the opportunity to comment on the case by written submissions before reaching my decision. 3 of 8 Conduct of the Hearing

[8]The case was allocated to the Judge at a late stage on the morning of 3 October. The Tribunal was presented with an agreed bundle of documents (756 pages). The claimant produced a “witness statement”, but he accepted that this was essentially his written submissions/argument of his case on jurisdiction and the claimant did not give oral evidence on oath. The claimant relied on his written statement as his main argument, and he supported these with oral submissions.

[9]There was a written witness statement from Marc Cavey, the Chief Executive of TRA who gave oral evidence on oath. Mr Cavey adopted his witness statement but clarified certain matters and provided (at the Judge’s request) a copy of the notes from which he was reading with regard to that clarification. The claimant had the opportunity to cross examine Mr Cavey. There was no re-examination.

[10]Ms Saran had provided written submissions dated 2 October on which she based her oral submissions.

[11]The hearing concluded at 3.30 and I reserved my decision.

[12]The claimant made further written submissions on 7 October 2024 saying that as a litigant in person, he had been unable to make the points he wished to make at the hearing. This was accepted by me (even though the claimant’s witness statement contained 6 pages of submissions). The respondent was allowed a right of reply, which they made on 8 October.

[13]The claimant then attempted to make further written submissions, but I indicated that the hearing had closed, and it would not be appropriate for the parties to continue to make submissions.

[14]However, when deliberating on this case, I noted the case of MOD v Rubery as mentioned above. Accordingly, I asked for the parties’ submissions ONLY on that case by 23 October 2024. Both parties supplied submissions. I have considered both parties’ submissions which are relevant to the Rubery case. I have not considered any additional submissions. Mr Cavey’s evidence

[15]Mr Cavey said that the TRA is an executive agency of the Department for Education (“the Department”) which acts on behalf of the Secretary of State for Education as the regulator for the teaching profession in England. In this capacity, the TRA is responsible for investigating allegations of serious teacher misconduct and conducting professional conduct panel hearings. TRA maintains a list of those prohibited from teaching work, and a list of trainee and qualified teachers. Mr Cavey repeated the relevant provisions under the Education Acts from which TRA gains its statutory powers.

[16]He emphasised that the claimant had no employment relationship with TRA but that his claim related to his allegations about the way in which the TRA had conducted its investigation. This was not disputed by the claimant. 4 of 8

[17]Mr Cavey confirmed that the TRA (when conducting its investigations into teachers’ conduct) made no distinction between complaints referred to them by individuals who were teachers and those who were members of the public generally. The claimant acknowledged this and confirmed that he had submitted his complaint on the referral form for use by members of the public (pages 88- 95 of the Bundle). The claimant also acknowledged that he had left the section on that form for “job title” blank and so had not appeared to rely on his status as a teacher when making the referral.

[18]Mr Cavey accepted in his additional oral evidence that TRA’s public facing communications had historically referred to TRA making “awards” of qualified teachers’ status (QTS). He acknowledged that this could be seen as misleading.

[19]TRA received information that a teacher met the relevant standards and held QTS and then entered that information in TRA’s central register of qualified teachers. However, the information came from relevant accredited providers and TRA did not itself make the decision about whether the proper standards had been met. This function had been transferred to the DoE in 2023 – Mr Cavey did not recall the exact dates. I accept Mr Cavey’s evidence on this point.

[20]Mr Cavey accepted that it was for the Tribunal to determine if such a function fell within the definition of a qualifications body under the EQA. He apologised for any confusion which may have been caused.

[21]Mr Cavey said that TRA carried out investigations into the matters raised in the claimant’s complaint (using external independent solicitors -which was its usual procedure). It was found that there was no case to answer against the teachers complained of. Mr Cavey said if a complainant was unhappy with the outcome of the investigation they could ask for a review process (which the claimant had done) and then could complain to the Parliamentary Ombudsman and/or make an application for Judicial Review. He was not aware whether the claimant had made such applications. The parties’ submissions

[22]TRA’s submissions are based on 2 grounds. First, TRA is not a qualifications body under section 53 EQA as it falls within the specific (and clear) statutory exemption in section 53 (4) (d). Secondly, even if this is incorrect, the substance of the claimant’s claim had nothing to do with the claimant’s own qualification or his status as a teacher, which is the essential nature of section 53.

[23]The claimant’s submissions although lengthy in form are also essentially brief in substance. The claimant says that the statutory exemption in section 54 (4) (d) must be disapplied using the “Golden Rule” of statutory interpretation – namely that Parliament could not have meant for the teaching profession to be excluding from the protection of section 53 against discrimination under the EQA. He cites the Michalak case in which the GMC was held to account and 5 of 8 says that this is authority for the Tribunal to override the statutory exemption and allow his claim against TRA to proceed.

[24]The claimant says that TRA falls within section 53 and that he has claims under sections 53 (2) (c) and 53 (5) (c). The claimant was unable to identify in his oral submissions, the detriment he had suffered with regard to his own qualification (which appeared to be the thrust of the relevant section), in this regard he said the words should be read literally as the subsections referred simply to “any other detriment”.

[25]As regards the Rubery case, the claimant attempted to repeat and expand on his general submissions. As made clear to the parties, I will focus ONLY on the submissions made about the case itself.

[26]The claimant said “In Rubery, military personnel had access to the Service Complaints Procedure, which offered sufficient safeguards for addressing grievances, including discrimination. The tribunal found that this statutory process negated the need for further tribunal intervention. However, in my case, there is no equivalent statutory process within the TRA and neither Judicial Review, the PHSO nor the County Court provides adequate recourse for the issues at hand.”

[27]I appreciate the claimant is a litigant in person - but this is his choice. His submission misunderstands and does not address the key issues in Rubery. The TRA is essentially the statutory process set up by the Secretary of State to deal with complaints against teachers (ie the equivalent of the Services Complaints Procedure). The claimant says that Judicial Review, the Ombudsman and the County Court do not provide adequate recourse for his discrimination claims – this is incorrect; they do provide such recourse, although the claimant has not chosen to make such applications.

[28]The respondent’s submissions on Rubery were that the case captured the essence of TRA’s argument on jurisdiction. Although the scenario in this case is different from that in Rubery, the essence is that this claim does not concern the claimant’s qualification or his continued employment but merely a complaint which could have been made by any member of the public against another person who worked as a teacher. The claimant’s status as a teacher is irrelevant to that complaint.

[29]Further, the respondent’s submission notes that in Rubery, the EAT refused to adopt an interpretation of the legislation which directly contradicted its wording. In this case, the claimant is asking the Tribunal to adopt a reading of section 54 (4) (d) EQA which contradicts its ordinary/natural meaning. As held in Rubery, it would be wrong to do so and an unjustifiable interference by the Tribunal into Parliamentary intentions and territory.

Conclusions

[30]The statutory exemption under section 54 (4) (d) is a clear one. TRA have demonstrated that when investigating referrals about teachers’ misconduct, 6 of 8 they are acting under the Education Acts. This then excludes the application of section 53.

[31]The claimant’s claims to the Tribunal rely on the application of section 53. If the exemption applies then his claim cannot succeed as the Tribunal has no jurisdiction to hear it.

[32]The claimant says that Parliament cannot have meant this to happen, and that the Tribunal should disapply the statutory exemption as being “overly broad”. He says that 54 (4) (d) is meant to exclude the bodies who grant academic qualifications (GCSE’s and A Levels) not professional qualifications like QTS. However, he provides no specific legal authority to support his assertion, other than to say that if applied literally, the exemption would leave a “loophole” in the law, whereby the TRA escapes scrutiny under the EQA.

[33]I note that the bodies who actually assess and confirm that someone has QTS would be the qualifications body to which the provisions of section 53 would apply. Mr Cavey explained that the TRA did not make this assessment itself but merely recorded the result of that assessment. I accepted his evidence on this point.

[34]This means that Parliament has not left a loophole, but that the claimant has perhaps misunderstood the nature of the protection (namely against discrimination in the workplace) afforded by Part 5 of the EQA and the role of the Employment Tribunals. The claimant has not suffered any detriment in his workplace. He accepts that there is no employment relationship with TRA.

[35]I also note that the claimant has other means of redress if he feels aggrieved about the way in which the investigation was conducted by TRA. He has a potential claim in the County Court for discrimination and also redress to the Parliamentary Ombudsman and an application for Judicial Review. The claimant says this does not provide him from protection against discrimination but that is not correct. I recommend that the claimant seeks legal advice on this matter.

[36]Even if the claimant were to be correct on this point, that would not then entitle him to insist that the legislation be read differently in his case to allow him to bring a claim. The law applies to all, it cannot be altered simply because an individual believes it should be.

[37]Although not mentioned at the Preliminary Hearing there is also the case of MOD v Rubery in which the EAT confirmed that the Tribunal does not have the power to read down or interpret clear legislation when to do so goes against the grain of that legislation.

[38]There is no ambiguity in the wording of sections 53 and 54. That wording, based on these facts, yields a clear result – the Tribunal has no jurisdiction to hear the claimant’s claims.

[39]In any event, the detriment the claimant alleges he has suffered is not related to and does not affect his own qualification or status as a teacher. I understand 7 of 8 that the claimant feels strongly about this case and is seeking to redress a perceived wrong he believes he had suffered. However, it for him to find the correct forum to obtain such redress.

[40]The Tribunal does not have jurisdiction to hear the claims in this case. They are accordingly dismissed, and the Final Hearing scheduled for 8 to 14 January 2025 should be removed from the Tribunal’s Lists. Employment Judge Henderson