Mr A Rashidi-Khaki v Governing Body of Garratt Park School: 2301105/2022
EMPLOYMENT TRIBUNALS
Case No 2301105/2022
Between
Mr A Rashidi-KhakiClaimantGoverning Body of Garratt Park SchoolRespondent
Before
Employment Judge MartinMr Callaghan - Counsel for claimantDate 15 March 2024
JUDGMENT
[1]The Governing Body of Garratt Park School is added as a Respondent[2]The London Borough of Wandsworth is dismisssed as a Respondent.
REASONS
[1]Written reasons were requested by Wandsworth Borough Council.[2]The Claimant presented a claim against Wandsworth Borough Council. The Claimant worked for Garratt Park School. By virtue of article 3 of the Education (Modification of Enactments Relating to Employment) (England) Order 2003 the school and not the local authority was legally responsible for all staff and staffing matters including conduct, discipline and grievances.[3]It was accepted that the Claimant’s contract of employment and most likely his payslips had Wandsworth Borough Council as the employer. It was not therefore surprising that proceedings were presented against it having followed the correct ACAS early conciliation procedure.[4]In its response Wandsworth Borough Council pointed out that it was not the correct employer, and the correct employer was the Governing Body of Garratt Park School. It was said that the proceedings were incorrectly instated and that there was no ACAS early conciliation certificate for the school.[5]There was communication between the parties leading to the Claimant obtaining an early conciliation certificate for the school, and presenting a claim form to the Tribunal on 24 January 2023 which repeated the matters in this claim but with the school as the Respondent. The claim number for this second claim is 2300010/2023 (the 2023 claim).[6]The 2023 claim is out of time. The 2022 claim is not. I find it entirely understandable why the Claimant initially presented a claim against Wandsworth Borough Council given what his contract and payslips say.[7]Mr Cameron argued that the proceedings had been improperly instituted against Wandsworth Borough Council and should therefore be dismissed. He argued that it was not possible to substitute Garratt Park School as a Respondent as there was no ACAS certificate for it when the 2022 claim was presented.[8]I disagreed with these arguments. Rule 34 of the Employment Tribunal Rules of Procedure 2013 (the rules) confer a wide discretion on Employment Tribunals to add, substitute and/or remove parties to proceedings. This can be done on its own initiative or on the application of a party. Addition, substitution, and removal of parties 34. The Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings; and may remove any party apparently wrongly included. Case management orders 29. The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. [Subject to rule 30A(2) and (3) the]1 particular powers identified in the following rules do not restrict that general power. A case management order may vary, suspend, or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made.[9]The same principles apply to adding, removing, or substituting parties that apply to other types of amendment and the principles set out in Selkent Bus Company Ltd v Moore 1996 ICR 836 EAT apply. The core test is the balance of hardship as described in Vaughan v Modality Partnership 2021 ICR 535 EAT.[10]Given that it was understandable that the Claimant brought proceedings against Wandsworth Borough Council given the name on his contract and payslips, and given that the hearing will not take place until March 2024 I consider that the mistake the Claimant made was a technical one. It is not the case that there was doubt about who the Claimant intended to include as a Respondent. It was the school he worked for.[11]If a substitution is not made in this case then it may be that the Claimant is deprived of the opportunity to have his claim heard given that the 2023 claim form is substantially out of time. Given the circumstances of this case, and the early stage in the proceedings there is no prejudice to Garrett Park School if it is added as a Respondent now. It is in the interests of justice for this to be done.[12]The final argument put forward by Mr Cameron is that there was no ACAS certificate when the 2022 claim form was presented for Garrett Park School. The ACAS early conciliation provisions relate to a certificate being available when proceedings are instituted i.e., when the ET1 Claim Form is presented. There is no requirement for an early conciliation certificate once proceedings have been instituted. Employment Tribunals Act 1996 18A Requirement to contact ACAS before instituting proceedings (1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter. This is subject to subsection (7).[13]Here proceedings have been instituted so no early conciliation certificate is required.[14]I therefore substituted The Governing Body of Garratt Park School as the Respondent in this case and formally dismissed Wandsworth Borough Council. I also dismissed the 2023 claim as it is a duplicate of the 2022 claim. A separate order has been made in respect of the 2023 claim.[1]The claimant presented a claim on 28/3/2022. He was employed as a Teaching Assistant by the respondent from 2/2/2015 and he resigned without notice on 31/1/2022. He engaged in Acas early conciliation between 1/2/2022 and 14/3/2022.[2]The respondent is a secondary school for students with moderate learning difficulties of approximately 200 students.[3]At a preliminary hearing on 24/4/2023 the claimant’s claims were identified as constructive unfair dismissal and unlawful discrimination under the Equality Act 2010 (EQA). The protected characteristic was race (s.9 EQA). The prohibited conduct was direct discrimination (s.13 EQA); harassment (s.26 EQA); and victimisation (s.27 EQA). The complaint was of detriment (s.39(2)(d) and s.40 EQA).[4]The Tribunal heard evidence from the claimant. For the respondent, it heard from: Ms Laura Ward (assistant head teacher); Ms Sharon Gladstone (deputy head teacher at the relevant time); Mr Michael Reeves (former head teacher); Ms Angela Esson (senior HR officer London Borough of Wandsworth); and Ms Shirley Newman (chair of the governing body and chair of the disciplinary panel).[5]The Tribunal had an electronic and hard copy bundle running to 809-pages.[6]There was an agreed list of issues and the Tribunal focused solely on those issues. There was additional evidence from both parties over and above the matters which the Tribunal was to determine as per the agreed list of issues. Submissions were heard and considered.[8]The following findings of fact were reached by the Tribunal, on the balance of probabilities, having considered all of the evidence given by the witnesses during the hearing, including the documents referred to by them and taking into account the Tribunal’s assessment of the evidence.[9]Only relevant findings of fact pertaining to the issues and those necessary for the Tribunal to determine, have been referred to in this judgment. It has not been necessary and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it was taken to in the findings below; but that does not mean it was not considered if it was referenced in the witness statements/evidence.
Findings of Fact
[10]The claimant is clearly articulate, intelligent and he was well respected as a Teaching Assistant. He was praised and thanked for his excellent support for the students. Mr Reeves had suggested to the claimant that he work towards qualified teacher status. The majority of the Tribunal finds the respondent would not want to lose someone of his talents.[11]The claimant started to work with a student NN on a one-to-one basis on 22/3/2021 and from 26/4/2021 (after the Easter break) he worked with NN in the Alternative Learning Centre (ALC). NN is an ethnic minority student. The claimant had built a rapport with NN and was doing a good job with him.[12]Ms Ward took over the management of NN following the departure of an Assistant Headteacher. Ms Ward had contact with NN, his family and the agencies working with him. The plan was that there would be a change of placement for him, i.e. he would leave the respondent and be educated elsewhere.[13]This was due to the respondent’s staff having considered the placement of NN in the school was not suitable for him. The respondent’s senior managers were exploring finding a more suitable alternative provision for NN, however ultimately, this was a matter for the Local Authority and the respondent had to manage as well as it could in the meantime.[14]This was against a backdrop of NN: having attacked a female member of staff in December 2020; his risk assessment being updated to ‘medium’ on 4/3/2021; the claimant working in a one-to-one situation with NN in the main school building from around 22/3/2021; from 26/4/2021 NN being moved to the ALC; and the decision taken for male members of staff to teach or look after NN; due to him attacking a female member of staff, further threats he made to her, to her daughter and to other females. Furthermore, it had been intended that NN would visit an alternative educational provision accompanied by the claimant, however, the visit fell through.[15]The claimant stated that he did not know anything about NN’s circumstances. For example, he said that he did not know why NN was in the ALC; he said that he did not know about previous violence or threats from NN. This was in answers to questions put by Mr Davies.[16]The cannot have been the case for the following reasons. From the claimant’s own account, he was directed to search NN when he arrived at school and he disagreed with this as he felt that it undermined the relationship of trust he was building with NN (page 346). The claimant would collect NN at 10.30am (NN’s school day was 10.30am to 2.30pm) and take him to the ALC without going through the main school building (claimant’s witness statement paragraph 21). NN made some disclosures to the claimant that he was involved with a ‘county lines’ gang. The claimant thought this was improbable, but nonetheless reported it to Ms Ward (claimant’s witness statement paragraph 18). There was an issue over the delivery of NN’s lunch, as he was not allowed to be in the main dining room. The claimant took issue with this and reported it to Ms Ward (claimant’s witness statement paragraph 16).[17]The claimant said in a letter to Mr Reeves of 13/7/2021: NN had ‘attacked one member of staff that I am aware of, this was the reason I was asked to work with him in the ALC and why he was kept in isolation’ (page 347). He also referred to members of staff blaming NN for not doing their washing up in the kitchen, NN not being allowed to see any of his friends and him being in a room where the windows were so high that NN could not see out of them and said: ‘I said all of this to [Ms Ward] and challenged her as to why this student was being treated unequally to other students who had violently attacked staff and students’ (page 347).[18]There were errors in the respondent’s management of NN and none of those failings were the fault of the claimant. The risk assessment had not been updated further to NN’s move to the ALC. The fact that he was in effect in isolation was not recorded. None of the daily restrictions in respect of NN were put in writing.[19]The claimant said he did a protected act soon after 26/4/2021 in that he made verbal statements to Ms Ward that she was treating NN and his parents differently due to their race; and that he complained that NN was not provided with a suitable educational provision when compared with white students (item 20 list of issues). He repeated when cross-examined that he had explicitly referred to the race or ethnicity of NN.[20]Ms Ward agreed the claimant challenged the educational provision for NN, however, she said there was no reference to race and that she explained the Local Authority was looking for an alternative school for NN and that NN also wanted to move to another school. She also categorically denied there was any reference by the claimant to NN’s race.[21]The claimant did say in correspondence that he challenged Ms Ward regarding the setting and regulations for NN. He did not however state that he referred to the race of NN and to another student (a white comparator LC). The first time the claimant made reference in writing that he ‘challenged [Ms Ward’s] concerning and questionable attitude towards this student, and what I strongly believe are the double standards of the school when it comes to supporting students from ethnic backgrounds‘ was in his letter of the 23/6/2021, which is titled ‘submission of a formal grievance’ (page 336). This was submitted after the claimant’s suspension.[22]The claimant did not say that he challenged Ms Ward regarding the ethnicity of NN when he raised the issues with her, which he did raise (such as reporting the ‘county lines’ gang, lunch and washing up issues to her). In his witness statement, despite it being his case that the protected act for the purposes of s.27(2) EQA were the verbal statements to Ms Ward soon after the 26/4/2021, the claimant referred to: ‘I felt I had to challenge her [Ms Ward] (paragraph 14) ‘NN did not have a learning plan’ … ‘I compared this to student LC who had a very detailed learning plan’ (paragraph 15) ‘NN was not allowed into the dining room’ … ‘This happened on more than 3 occasions and each time I reported it to [Ms Ward] and said that it was a breach of NN’s basic human rights and that this would not happen to LC’ (paragraph 16) ‘NN could not see any of his friends as he was alone in the ALC’ … ‘I reported this to [Ms Ward] and asked her why NN was being treated unequally compared to LC…’ (paragraph 17) ‘Between April and June of 2021 NN said to me that he was involved in ‘county lines;’ … ‘[Ms Ward’s] first thought was to call the police so he could be removed from the School.’ … ‘I said to [Ms Ward] that she was being unfair to NN and if this were LC she would not have even thought about the police.’ (paragraph 18) ‘On or around the first week of June 2021, NN parents said to me that the School had told them there was only one other institution their son could be moved to… I reported this conversation to [Ms Ward] and asked why LC was not being moved as he was more challenging that NN…’ (paragraph 19)[23]Despite recounting these conversations with Ms Ward in his evidence-inchief, the claimant did not make any reference to race or ethnicity. The claimant said he had referred to the difference in treatment between NN and LC being due to difference in ethnic backgrounds in his grievance on 23/6/2021 (page 336). He relies upon those statements as protected acts for his victimisation claim. Yet the claimant has not in his evidence-in-chief made any reference to any difference in ethnicity between the two students. The claimant recording a difference in treatment between two students does not link it to their race.[24]The Tribunal therefore finds that on the balance of probabilities, that although the claimant did have sympathy for NN and advocated for him, he did so on the basis of perceived unfair treatment of NN. He did not however go beyond that and did not refer Ms Ward to the difference in treatment being because of the difference in race of the two students. On the balance of probabilities, the claimant was forthright in his views and the Tribunal finds that if he had believed the difference in treatment was due to race, he would have said so. On his own account, he raised many concerns he had about how NN was being treated; he did not however raise NN’s race.[25]There was an incident on the 16/6/2021 in which NN attacked another student whilst under the supervision of the claimant. The relevance of this is that it leads into the claimant’s allegations of: him failing to follow instructions (3i list of issues as part of the constructive unfair dismissal); bringing allegations against the claimant on 18/6/2021 (14 list of issues as part of direct race discrimination); bringing a disciplinary matter against the claimant (21 list of issues as a detriment for doing a protected act); and bringing disciplinary action against the claimant (25 list of issues as an allegation of harassment).[26]On the morning of the 16/6/2021 the claimant had a conversation with Ms Ward; and Ms Gladstone who was in Ms Ward’s office also contributed. The claimant’s evidence is (his witness statement paragraph 20): ‘At approximately 08.15 on the 16th of June 2021, I passed the office of [Ms Ward]. [Ms Gladstone] was also in the office, but I did not see her as I was standing in the doorway. I only had a conversation with [Ms Ward]. After greeting [Ms Ward] I said ‘as I am now back working with NN, what do you think about him having more social contact – like before when [J] visited him in the ALC… or allow him to use the football pen on his own which he enjoys.’ [Ms Ward’s] response to this was, ‘No, keep on doing what you normally do’ (I have explained previously in this document what I ‘normally do’ with the student). At no point did [Ms Ward] or [Ms Gladstone] give any instructions about locking the gate or keeping NN in the ALC at break times. I responded that it was unfair that he (NN) is kept in isolation all the time, and a violation of basic human rights, and other students are not treated this way. This was the end of the conversation and I left.’[27]The Tribunal finds that it is clear from this conversation the claimant knew of the restrictions in respect of NN. There is reference to his using the ‘football pen on his own’; not with other students. The claimant is clearly advocating for more social contact for NN and he is, on his own account told ‘no, keep on doing what you normally do’.[28]Ms Gladstone’s evidence was that Ms Ward told the claimant that NN could use the outdoor area (the ‘gym’) when other students were not in the playground (her witness statement paragraph 17).[29]Ms Ward’s evidence was that the claimant could take NN out of the ALC to access the outdoor gym, but not at the same time as the other students had their break (her witness statement paragraph 29).[30]There was also a discussion as to whether or not a gate had to be locked if NN was outside. Ultimately, this was not an allegation within the list of issues nor something upon which the Tribunal needed to make a finding of fact. The Tribunal acknowledges that it was an allegation put to the claimant as part of the disciplinary allegations.[31]Both Ms Ward and Ms Gladstone are clear that during this exchange, they were adamant that NN could not go outside if other students were also on their break.[32]The claimant had a different interpretation of the conversation and he understood that he could allow NN to go outside if he was upset, as using the equipment would make NN feel better.[33]The majority of the Tribunal finds that the claimant and Ms Ward/Ms Gladstone may well have walked away from that morning’s conversation with a different understanding to each other.[34]The claimant knew NN was in isolation, hence his complaints about him not being able to go to the dining room and wanting him to have interaction with a friend over lunch. The claimant asked that morning for NN to have more socialisation (whatever the impression he had as a result of the conversation with Ms Gladstone and Ms Ward). Also the claimant knew that going outside when ‘[NN] was upset and being outside on the equipment would help him feel better’ (claimant’s witness statement paragraph 21); in the claimant’s view this would be of assistance to NN.[35]The claimant allowed NN to go outside at approximately 11am, when NN had only started school at 10.30am. It does not make sense that the claimant knew NN was in isolation yet he allowed him (NN) to go outside when other students were there. It made no sense of the isolation and undermined the measures put in place (not going through the main school, not eating in the dining room, having a one-to-one provision in the ALC, etc) to in effect segregate NN from the other students; to unilaterally override that and to allow him to go outside when NN then had access to the other students.[36]The end result was that the claimant allowed NN to go outside when other students were on their break. Initially, NN was in a separate area on his own (according to TA). NN led the claimant to believe that he wanted to talk to another member of staff (TA – Learning Mentor) who was in the playground. The claimant did not see an issue with this. NN then physically attacked another student.[37]The immediate aftermath involved attending to the student who had been attacked and calming NN down.[38]Later on the 16/6/2021 there was a Serious Incident Discussion (SID) when Ms Ward returned to the school. Serious Incident Forms (SIF) were given and completed on the 17/6/2021. They were subsequently updated and were auto-dated (this is unhelpful as it is not therefore possible to ascertain when the SIF was initially completed). In Ms Ward’s absence on a school trip, Ms Gladstone led this process. This resulted in a recommendation to Mr Reeves that NN be excluded and for an emergency annual review to state that the school could no longer meet his needs.[39]Ms Gladstone asked the claimant to provide more detail in his SIF. The claimant submitted three SIFs as a result. The claimant said that on the morning of the 18/6/2021 Ms Gladstone asked him to include the word ‘social’ which he did.[40]There was concern at the respondent that it would be held to account by social services, the local authority, the parents of the student who was attacked and possibly the police. The respondent also had to be prepared to explain what measures it could put in place to prevent a similar incident happening in future and presumably to explain the failings by the senior management team in respect of NN. Ms Gladstone acknowledged that the respondent would be asked ‘searching questions’ and that it had not adhered to its agreement that NN would be educated entirely separately from other students (her witness statement paragraph 28).[41]Ms Gladstone spoke again to the claimant on the 17/6/2021. She also said that she expected the claimant to acknowledge he had made a mistake in allowing NN access to the playground and to apologise or to provide an assurance that there would not be a repeat and called his conduct into question in respect of his ability to fulfil his role (her witness statement paragraph 35). The Tribunal would have expected if this were the case, that Ms Gladstone would have spoken to the claimant and explained this to him. He should then have been given the opportunity to have such a conversation.[42]In his witness statement, the claimant complains of matters which took place on the 18/6/2021, however, they did not form part of a specific allegation.[43]As a result of the incident on the 16/6/2021, the claimant was suspended on the 18/6/2021. Mr Reeves took the decision to suspend the claimant and the meeting at which the claimant was suspended was attended by Ms Gladstone (page 189 and 286). Ms Ward, to whom the claimant had raised his concerns with about NN, was not involved. It is however expected that as a member of the senior management team, she would have been aware of the decisions which were taken in respect of the claimant.[44]The respondent then commenced an investigation. The claimant alleged the investigation was fundamentally defective, that the process was intended to result in his dismissal and that the report produced was not impartial (allegations 3iii and 3iv).[45]Although Ms Gladstone had been a witness to the incident on the 16/6/2021 (she was involved in the conversation in the morning and was involved in the aftermath) she was appointed as investigating officer. Ms Gladstone challenged this with Mr Reeves, however, he overrode her objections.[46]The Tribunal finds that Ms Gladstone should have been more assertive with Mr Reeves and possibly should have involved HR so that she was not in such a conflicted position.[47]The claimant raised a formal grievance in response to his suspension and he challenged Ms Gladstone’s role as investigating officer on 23/6/2021 (page 338). His objections were accepted and Ms Gladstone was replaced with Mr Reeves as investigating officer and the claimant was informed of this on the 29/6/2021 (page 195). The respondent now acknowledges that Ms Gladstone should not have been appointed. Furthermore, although the claimant’s objection was accepted, the fact that he took issue with Ms Gladstone’s appointment and had to raise it, will have contributed to his sense of grievance in respect of the process. It will also have contributed to his feeling of a lack of impartiality by the respondent.[48]Mr Reeves then re-interviewed the witnesses which Ms Gladstone had interviewed on the 22/6/2021 (pages 307 to 334) on the 15/7/2021 and that now included Ms Gladstone as a witness (pages 353 to 394). The claimant was interviewed on the 20/7/2021 (pages 400-431). The school closed for the summer holidays on the 23/7/2021.[49]On the 29/9/2021 a link to the outcome of the investigation report by Mr Reeves was sent to the claimant (page 247). The claimant took issue with the impartiality of the report and stated that his evidence was ignored or misrepresented. Unfortunately, he does not specify what precise issue he takes or what is the criticism he makes in this regard.[50]The only matter which is obvious to the Tribunal, is that the claimant criticised Mr Reeves for not interviewing witnesses which he said could be seen on the CCTV as having been present. They were GO and K (surname unknown). The claimant did state in evidence-in-chief that GO was not interviewed, even though she witnessed the incident (witness statement paragraph 53). He did not refer to K.[51]The respondent’s Staff Disciplinary Code, which had been sent to the claimant on the 21/6/2021 (page 286) and with which he was familiar (as he quoted from it in his formal grievance), refers at paragraph 2.8: ‘2.8 Use of witnesses The Investigating Officer shall obtain written accounts from witnesses who are relevant to the facts of the case. Should the Investigating Officer deem necessary, they shall invite the witness to an interview to further establish the facts of the case. Witness accounts/interview notes should be confirmed as accurate to the best of their belief and knowledge. If the employee identifies any witnesses who they consider should be interviewed, they should make this request to the Investigating Officer. The Investigating Officer will decide whether it is appropriate to interview the proposed witnesses.’[52]The claimant did not request that GO or K be interviewed. His Trade Union representative did raise the fact that GO was not interviewed during the disciplinary hearing, as did the claimant. There was however no request that additional named witnesses were interviewed prior to that, although that was permissible under the Code.[53]The disciplinary hearing took place on the 29/11/2021 and resumed on the 8/12/2021. The outcome was communicated to the claimant by telephone on the 8/12/2021 and confirmed in writing on the 15/12/2021 (page 562). When the claimant was informed by telephone of the outcome, he was told his suspension had been lifted and that Mr Reeves would contact him to arrange a return to work date.[54]The outcome was that the allegation (A) that the claimant had ‘failed to follow clear instructions from the Deputy and Assistant Headteachers i) not to allow a potentially dangerous student out at break times and ii) to ensure that the gate from the outdoor gym was locked before the student arrived so that he did not present a danger to others’; was not upheld. Ms Newman said in her witness statement that the reason the allegation was not upheld, was because the instructions were not put in writing and the panel did not accept ‘clear’ instructions had been given. This is not however apparent from the disciplinary decision outcome letter which did not give reasons why this allegation was not upheld.[55]Allegation (B) that the claimant ‘allowed the student out of the area in which he should have been contained, which resulted in harm to another student’ was upheld and was deemed to be a ‘serious offence’, which resulted in a written warning to be issued which would remain on file until 31/8/2022 (page 566).[56]The claimant alleges that allegation (B) was upheld ‘deliberately and wrongly’ so that members of the senior management team could then make another false allegation against him which would result in his dismissal (list of issues point 3v).[57]Mr Davies submitted that this was rather a contrived conspiracy theory or plot. If the senior management team had wished to dismiss the claimant, then both allegations (A and B) could have been upheld, be deemed to be gross misconduct and as such, result in the claimant’s dismissal.[58]Furthermore, this ignores the fact that there was an additional level of disciplinary scrutiny, in that the Governing Board has delegated responsibility for dismissal. It is clear, as per the disciplinary policy followed in respect of the claimant, that the Governors who hear the disciplinary case are independent of the senior management team and are free to and in fact did reach a conclusion not to uphold allegation (A). The Governors could not therefore be relied upon to ‘rubber stamp’ any disciplinary allegations made. It did not therefore follow that the Governors would decide to dismiss in the future in any given circumstances.[59]The claimant complained that his request for dates and further information about two appeals (the appeal against the disciplinary outcome and the grievance appeal) were ignored (list of issues point 3vi).[60]The school was closed for the Christmas break between 17/12/2021 and 4/1/2022.[61]The claimant had appealed the outcome of the disciplinary hearing on the 29/12/2021 and it was accepted this was not received until the 4/1/2022 (page 573).[62]The Code allows for (paragraph 3.3 page 302) the appeal to be heard as soon as possible, but in any case, within 20 working days of receipt. It was agreed and accepted, that gave the respondent until the 1/2/2022.[63]Although the suspension had been lifted, the claimant had not returned to work. He received an email from Mr Reeves which stated that an outstanding appeal was not a reason to be absent from work (page 578).[64]Unbeknown to the claimant, his Trade Union representative had approached the respondent to discuss a settlement. The claimant was unhappy about that and expressed his displeasure.[65]The claimant appealed the outcome of his grievance on the 11/1/2022 (page 587).[66]On the 18/1/2022 Ms Newman informed the claimant she was looking at the availability of the appeal committee (page 609). This was to be a panel of three. Ms Newman said that she considered whether the appeals should be heard by one governor, however, as the disciplinary case had been heard by a panel of three, that it was appropriate for a panel of three to hear the appeal. This necessarily made matters more complicated.[67]On the 20/1/2022 the claimant wrote two emails to Ms Newman and asked if the appeals would be heard separately or together (page 609). Ms Newman did not respond. The claimant then wrote again on the 25/1/2022. All the emails were copied to the respondent’s School Business Manager and the latter two were copied to Mr Reeves. Ms Newman did not reply to the email of the 25/1/2022. Ms Newman should have at least acknowledged the email and engaged with the claimant; even if it were to say she had no update or information for him.[68]The claimant then resigned on the 31/1/2022 in advance of the 1/2/2022 deadline (page 616). The claimant did not make any allegation about race or ethnicity in his resignation letter. He did however request that both appeals continue.[69]The respondent, after taking advice from HR, took the view that the appeals could only be heard if the claimant had remained an employee and not as an ex-employee (page 619).[70]Ms Newman acknowledged the claimant’s resignation on 3/2/2022 (page 621). She informed the claimant the respondent would not continue with the appeals.[71]On the 6/2/2022, the claimant challenged the decision not to proceed with the appeals and requested a full set of the minutes from the disciplinary meeting in November and December 2021. This was the first time the claimant had requested the minutes. This request post-dated the claimant’s resignation and therefore cannot have contributed to any breach of contract leading to his resignation.[72]The minutes of the disciplinary hearing ran to 79-pages (page 626-704). Ms Newman sent them to the claimant on the 3/3/2022 (page 718).[73]The claimant also brings claims under the EQA. He relies upon the protected characteristic of race. He describes his race as Asian and Middle Eastern. He complains of a detriment.[74]Under the prohibited conduct of direct discrimination, the claimant alleges the respondent brought allegations against him as per the letter of 18/6/2021 (list of issues point 14). He says that white colleagues would not have faced disciplinary action. His comparators are TA (the member of staff NN said he wanted to approach in the playground before NN attacked the other student), his line manager TU and Ms Ward. In the alternative, the claimant relies upon a hypothetical comparator.[75]Mr Davies could accept that being subjected to disciplinary action could amount to a detriment. He also submitted that the named comparators were not in materially the same circumstances as the claimant.[76]The Tribunal has considered the reason why the claimant was subjected to disciplinary action. The reason was the fact the claimant had taken NN outside when other students were on their break; which led to and gave NN the opportunity to attack another student. The Tribunal accepted the respondent’s evidence that any member of staff who had allowed a student into an area where there were other pupils, when the student should be contained, would have been subject to disciplinary action or proceedings, irrespective of their race.[77]The Tribunal has found the claimant did not do a protected act. Even if he had, the fact he was subjected to disciplinary proceedings (list of issues point 21) was due to the incident which happened on the 16/6/2021. That was a complete intervening event and it was that which led to disciplinary action being taken.[78]In respect of harassment (list of issues point 25) the respondent did take disciplinary action against the claimant. The allegations were not false. Again, there was an intervening event (the attack on the 16/6/2021) and it was that which led to the respondent taking disciplinary action. The fact the respondent took disciplinary action was not related to the claimant’s race. It was a response to a physical attack.[79]The claimant did not address the time issue in respect of the claims under the EQA, despite this being listed as a relevant issue at the preliminary hearing. The disciplinary action was taken in June 2021. The claimant contacted Acas on the 1/2/2022 and any event before 2/11/2021 is out of time. Findings of fact of the minority where the minority disagrees with the majority:[80]The majority finds: 80.1. In respect of the finding that the claimant was aware of NN’s care plan, the minority find that other staff said they were not aware of NN’s care plan, or the instruction regarding the locked gate. Those staff are TA (page 254) and GW (page 254). 80.2. The conversation on the morning of the 16/6/2021 did not take place as per the account of Ms Ward and Ms Gladstone as if it did, the claimant would not have had a different understanding. 80.3. As a result of the incident, the allegations were exaggerated and overstated and were in response to the reactions of SEND, the social worker and the carer of the victim. The respondent was protecting its own reputation, had failed on aspects of its care of NN and the claimant was made a scapegoat. 80.4. Alternatives to suspension were not considered. 80.5. Ms Gladstone should not have been appointed as investigating officer. 80.6. The respondent did not interview all witnesses. 80.7. In respect of Ms Gladstone’s comment that if the claimant had apologised, it is unclear how the allegation can then be framed as gross misconduct, as an alternative, it could then be dismissed outright if the claimant apologised. 80.8. Mr Reeves reached conclusions in the investigation report, being the comment that the claimant thought he knew more than qualified staff. 80.9. The respondent reacted to a minor allegation, which did not trigger a similar reaction to other disciplinary breaches in the past. 80.10. The respondent’s actions did create a negative and humiliating environment for the claimant. This was particularly in view of him being expected to return to work, to be line managed and work alongside the same people; when he had been degraded. 80.11. These actions did amount to a breach of the implied term of mutual trust and confidence. 80.12. This was a fundamental breach, which went to the root of the contract and caused the claimant to resign and to bring the contract to an end. The claimant did not affirm the breach, he did not return to work and he accepted the breach promptly. The Law The Implied Term of Trust and Confidence
The Law
[81]In Malik v Bank of Credit and Commerce International SA [1997] ICR 606 it was held that: ''The employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.''1[82]The employer must not indulge in such behaviour without reasonable and proper cause. This is relevant in more nuanced cases where this limitation may be there to hold a balance between the interests of both parties, in particular where the employer has objectively acted in a way likely to damage trust and confidence, but suggests they had good reason to do so on the facts. In such a case the tribunal must weigh both elements of the definition of the term (Hilton v Shiner Ltd [2001] IRLR 727).[83]The conduct needs to be repudiatory in nature in order for there to be a breach of the implied term of trust and confidence (see Morrow v Safeway Stores Ltd [2002] IRLR 9).[84]In order to establish that they have been constructively dismissed, an employee must show the following: The employer committed a breach of contract. That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.[85]The line between serious unreasonableness and a breach of the implied term of trust and confidence is a fine one (see e.g. Sheridan v Stanley Cole (Wainfleet) Ltd [2003] ICR 297).[86]Lawful conduct is not capable of constituting a repudiation even though it may be unwise or unreasonable in industrial relations terms (Spafax Ltd v Harrison [1980] IRLR 442).[87]The breach may be an anticipatory rather than an actual one, i.e. even though no breach has yet occurred, it is sufficient if the employer has indicated a clear intention not to fulfil the terms of the contract in the future, and the employee accepts that intention to commit a breach as bringing the contract to an end (Norwest Holst Group Administration Ltd v Harrison [1985] IRLR 240; Greenaway Harrison Ltd v Wiles [1994] IRLR 380).[88]The employee must leave in response to the breach and not for some other unconnected reason.[89]In United First Partners Research v Carreras [2018] EWCA Civ 323 where an employee has mixed reasons for resigning, the resignation would constitute a constructive dismissal if the repudiatory breach relied on was at least a substantial part of those reasons.[90]Walker v Josiah Wedgwood & Sons Ltd [1978] ICR 744: ''… it is at least requisite that the employee should leave because of the breach of the employer's relevant duty to him, and that this should demonstrably be the 1 As subsequently interpreted. case. It is not sufficient, we think, if he merely leaves … And secondly, we think, it is not sufficient if he leaves in circumstances which indicate some ground for his leaving other than the breach of the employer's obligation to him”.[91]In Wright v North Ayrshire Council [2014] IRLR 4, EAT (at para 32) it was suggested that: “where there is a variety of reasons for a resignation but only one of them is a response to repudiatory conduct the compensation to which a successful claimant will be entitled will necessarily be limited to the extent that the response is not the principal reason. A Tribunal may wish to evaluate whether in any event the Claimant would have left employment and adjust an award accordingly. This does not affect the principle to be applied in deciding breach: it is merely to recognise that the facts have a considerable part to play in determining appropriate compensation.”[92]They have not waived the breach (also known as 'affirming' the contract) by for instance waiting too long to terminate the contract.[93]He must not delay his resignation too long, or do anything else which indicates acceptance of the changed basis of his employment: (WE Cox Toner (International) Ltd v Crook [1981] ICR 823 which is the leading case on affirmation. In Western Excavating Lord Denning said that the employee 'must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.'[94]There is no fixed time within which the employee must do so and so a delay per se will not amount to affirmation in law, albeit it will often be an important factor: Chindove v William Morrison Supermarkets Ltd UKEAT/0201/13. A reasonable period is allowed. It depends upon all the circumstances including the employee's length of service.[95]S.13 EQA provides: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[96]S.23 EQA provides: (1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.[97]S.26 EQA provides:(1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of- (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.(2) …(3) …(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account- (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect…[98]In respect of violating a person’s dignity: ‘[n]ot every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended’ (Richmond Pharmacology v Dhaliwal 2009 ICR 724, EAT).[99]The EAT also observed that ‘the word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence’ (Betsi Cadwaladr University Health Board v Hughes and ors EAT 0179/13).[100]S.27 EQA provides:(1) A person (A) victimises another person (B) if A subjects B to a detriment because- (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act- (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.’[101]S. 123 EQA provides: (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period;[102]In Concentrix CVG Intelligent Contact Ltd v Obi 2023 ICR 1 the EAT referred to Abertawe Bro Morgannwg University Local Health Board v Morgan 2018 ICR 1194 CA and the principle that the absence of an explanation does not, as a matter of law, mean that a just and equitable extension must automatically be refused. Failure to consider the length of and reasons for, the delay would be an error of law, but that is not the same as saying that if, upon consideration, no reason is apparent at all from the evidence, then in every case the extension must, as a matter of law, be refused.[103]S.136 EQA provides:(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision. … (6) A reference to the court includes a reference to- (a) an employment tribunal;…[104]In Madarassy v Nomura International plc [2007] ICR 867, CA, Mummery LJ stated that: ‘The bare facts of a difference in status and a difference in treatment only indicates a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent has committed an unlawful act of discrimination’.[105]If a claimant establishes a prima facie case of discrimination, then the second stage of the burden of proof test is reached, with the consequence that the burden of proof shifts onto the respondent. According to the Court of Appeal in Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases [2005] ICR 931, CA, the respondent must at this stage prove, on the balance of probabilities, that its treatment of the claimant was in no sense whatsoever based on the protected ground.[106]In respect of the vagueness of the allegations, it is important to establish that the treatment was because of a protected characteristic it must be shown that a named individual (or a number of individuals) who subjected the claimant to a detriment was consciously or subconsciously influenced by the protected characteristic. Unless the claimant identifies the alleged discriminator(s), that exercise cannot be conducted, and the claim will fail Reynolds v CLFIS (UK) Ltd [2015] IRLR 562.[107]In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, HL, the House of Lords adopted Brightman LJ’s definition of ‘detriment’ when he stated that a detriment ‘exists if a reasonable worker would or might take the view that [the action of the employer] was in all the circumstances to his detriment’.
Conclusions
[108]The time limits are deliberately short in the Employment Tribunal. This is so that claims are presented promptly and are considered whilst matters are still fresh in the parties’ minds. If there is, as is currently the case, delay due to an oversubscribed system, the fact a claim has been presented promptly means that evidence can be preserved if the hearing is not going to take place for some time. The claimant was represented by his Trade Union representative and his claims under the EQA were over four months out of time; that is longer than the primary time limit. Employment Tribunal time limits are not aspirational, they are deadlines. A lack of legal knowledge is not an excuse, particularly when a simple internet search will reveal the time limits within approximately three clicks. There are numerous, well-known sources of information, such as Acas, CAB, the GOV.UK website etc.[109]There was nothing in the claimant’s circumstances which warranted the Tribunal exercising its discretion to extend the time limit on a just and equitable basis. There was no explanation for the delay. There is on balance, greater prejudice to the respondent in it having to defend claims which are significantly out of time. It is not just and equitable to extend the time limit.[110]The majority finds the respondent took justifiable disciplinary action against the claimant in circumstances when his error of judgement in permitting NN to be in an area where there were other students, led to NN physically attacking another student. The matters about which the claimant complains are not breaches of the implied term of mutual trust and confidence. The fact the claimant disagrees with the respondent’s decision to take disciplinary action, does not result in there being a breach.[111]There was no breach of contract and certainly no fundamental breach.[112]Furthermore, the respondent did not behave in a way that was calculated or likely to destroy or seriously damage trust and confidence between the parties.[113]The majority of the Tribunal finds that notwithstanding the claimant’s stated aim of ‘clearing his name’ by means of the appeal process, he resigned as he was expected to return to work and he realised that his absence was unauthorised, which by implication, could result in further disciplinary action being taken.[114]The reason for the dismissal was the claimant’s resignation. It was not constructively unfair.[115]Under the EQA the Tribunal finds unanimously, the claimant was not treated less favourably because of his race. There was no protected act and the reason the respondent took disciplinary action was due to the incident on the 16/6/2021. Likewise, there was no harassment, whether related to the claimant’s race or otherwise. The reason the respondent took disciplinary action against the claimant was the incident on the 16/6/2021.[116]Furthermore, any allegation under the EQA was not brought within the primary time limit and the Tribunal was not persuaded to exercise its discretion to extend the time limit. There was no basis for doing so.[117]For those reasons, the claim of constructive unfair dismissal and for unlawful discrimination contrary to the EQA fail and are dismissed.