Mr J Vieira v East Sussex College Group: 2302164/2020
EMPLOYMENT TRIBUNALS
Case No 2302164/2020
Between
Mr J VieiraClaimantEast Sussex College GroupRespondent
Before
Employment Judge P Klimov, sitting aloneDate 17 May 2021
JUDGMENT
The Claimant’s claim for unfair dismissal fails and is dismissed.
REASONS
[1]By a claim form presented on 29 May 2020 the Claimant brought a claim for unfair dismissal. The Claimant seeks compensation, an order of reinstatement or re-engagement, and an increase to an award for the Respondent’s unreasonable failure to comply with the ACAS Code of Practice on Disciplinary and Grievance of up to 25% (“ACAS Code”).[2]The Respondent admits dismissing the Claimant but avers that it dismissed the Claimant for a potentially fair reason under s.98(2)(a) and (3) of the Employment Rights Act 1996 (ERA), namely for the Claimant’s failure to comply with a reasonable requirement to hold a qualification relevant to the position he held. It avers that it followed a fair procedure in dismissing the Claimant for that reason. It further avers that it complied with the ACAS Code, and therefore, in all the circumstances, it acted reasonably in dismissing the Claimant for that reason. In the alternative, the Respondent avers that if the dismissal were found to be procedurally unfair, the Claimant would have been dismissed in any event and therefore any compensation the Tribunal might award to the Claimant shall be reduced accordingly under the rule in Polkey v AE Dayton Services Ltd [1987] ICR 142.[3]The Claimant was represented at the hearing by Miss A. Nanhoo-Robinson and the Respondent by Mr I. Callaghan. I am grateful to both counsels for their cooperation and assistance to the Tribunal in dealing with this case.[4]The Claimant gave sworn evidence to the Tribunal and was cross-examined. The Claimant also submitted short witness statements of Mr Paul Kay, Mr Michael Poil, Mr Mark Streeter and Mr Andrew Bamber, however, they were not available to give oral evidence to the Tribunal.[5]Miss Nanhoo-Robinson said that the reason they had not been asked to give oral evidence to the Tribunal was because the Claimant thought that the hearing would be in person and felt uncomfortable asking them to attend. However, as the hearing was by video, the Claimant was able to contact Mr Poil, and Mr Poil was able to join the hearing in the afternoon and gave sworn oral evidence to the Tribunal. I accepted other witness statements as written representations under Rule 42 of the Employment Tribunals Rules of Procedure (“ETs Rules”).[6]The Respondent called three witnesses: Ms Rebecca Conroy, the Principal of the Respondent’s Eastbourne Campus, at which the Claimant worked, Ms Becky Cooke, the former Respondent’s Executive Director for People and Culture, and Mr Clive Cooke, the former Respondent’s Chief Executive Officer. They all gave sworn evidence and were cross-examined.[7]I was referred to various documents included in two electronic bundles of documents of 50 pages and 108 pages, respectively. During the hearing, the Respondent disclosed two further documents: notes of the Claimant’s appeal meeting and a copy of the Claimant’s “Staffing Change / Amendment Form”. After giving time to the Claimant and his representative to consider the documents I admitted them in evidence.[8]At the start of the hearing, Miss Nanhoo-Robinson applied to postpone the hearing. She asked for a postponement on the grounds that the Claimant had not seen the witness statement of Mr Cooke until a day before the hearing. She said that the Claimant suffered from stress and that exacerbated his condition. She further submitted that because Mr Cooke was giving evidence about the appeal meeting there ought to be appeal meeting notes, but they had not been disclosed by the Respondent. Also, because the Claimant thought that the hearing would be in person, he did not ask his witnesses to give evidence in person because he felt uncomfortable doing that, and if he had known that the hearing would be via video, he would have asked Mr Poil to attend and give evidence to the Tribunal.[9]Miss Nanhoo-Robinson further submitted that one day might not be enough to deal with the case because there were at least four witnesses giving evidence, and it would be better to re-list the case for two days to avoid it going partheard.[10]The Respondent objected to the application. Mr Callaghan submitted that all witness statements had been exchanged on 11 March 2021. However, it appeared that for some technical reason the file containing Mr Cooke’s statement was unreadable. The Claimant, however, never asked for it to be resent to him. Mr Cooke’s statement was short and contained evidence of the facts that were not new to the Claimant. He further submitted that one day should be enough to deal with this case, and the Respondent’s witnesses were all present and ready to go.[11]Having considered the parties’ submissions, I refused the Claimant’s application for the following reasons. The witness statements were exchanged well in advance of the hearing. If the Claimant was unable to open the file containing Mr Cooke’s witness statement or if the statement was unreadable, he should have asked for it to be re-sent to him. Miss Nanhoo-Robinson had read the Mr Cooke’s witness statement before the hearing and had asked the Claimant to read it too. The statement was only four and a half pages long and contained 23 paragraphs. With respect to the Claimant not asking his witnesses to attend the hearing, it was his choice. Their witness statements were accepted as written representations under Rule 42 of the ET Rules, albeit with having less evidential weight as evidence given under oath. There was still time for the Claimant to arrange for Mr Poil to join the hearing. I considered the requirements of the overriding objective under Rule 2 of the ET Rules and decided that in the circumstances it would not be in the interest of justice to postpone the hearing.[12]I, however, decided to adjourn the hearing for 30 minutes to allow Miss NanhooRobinson to discuss Mr Cooke’s witness statement and take instructions from the Claimant and for them to contact Mr Poil to see if he was available to join the hearing at some point during the day. I also reminded the Respondent of their continuing duty of disclosure and asked Mr Callaghan to enquire about the appeal meeting notes.[13]During the adjournment, the Respondent found and disclosed the appeal meeting notes. When the hearing re-started, Miss Nanhoo-Robinson asked for more time to allow her and the Claimant to consider the appeal meeting notes. She asked for 30 minutes, and I adjourned the hearing for that time.[14]When the hearing resumed Miss Nanhoo-Robinson confirmed that Mr Poil would be available to join the hearing in the afternoon. Mr Poil joined the hearing and gave his evidence and was cross-examined.[15]During the lunch break the Respondent disclosed a further document – the Claimant’s “Staffing Change / Amendment Form” (3 pages). Miss NanhooRobinson asked for a 20-minutes’ adjournment to take instructions on the document, which I allowed.[16]When the last witness finished giving his evidence to the Tribunal, the time was 15:37, and Miss Nanhoo-Robinson asked that closing submissions were presented to the Tribunal in writing to enable her to prepare them in consultations with the Claimant. The Respondent was content to proceed in that way. It was agreed that the parties would send me their closing submissions by 10am on the following day, which they did.[17]There was no agreed list of issues, however, based on the parties’ pleading the issues were clear and not in dispute. I confirmed that with the parties at the start of the hearing. It was accepted that it was for the Respondent to show the reason for the Claimant’s dismissal, and if it could show that the reason was a potentially fair reason under s.98(2) ERA, then the question whether it acted reasonably or unreasonably in treating such reason as sufficient to dismiss the Claimant (s.98(4) ERA) would need decided. Further, if the Claimant succeeded on the liability, the issue of Polkey reduction would need to be considered.[18]In her closing submissions, Miss Nanhoo-Robinson identified two further issues: “What was the status of the oral agreement?” and “Was the written contract waived – specifically in relation to Clause 22?” These questions, however, are not stand-alone issues, but rather relevant consideration in deciding whether in the circumstances the Respondent acted reasonably or unreasonably in dismissing the Claimant for the reason it relies upon. These questions were explored in some detail during the hearing and the parties addressed them in their written closing submissions. I will deal with them in the Analysis and Conclusions section of my judgment.
Findings of Fact
[19]The Respondent is an educational establishment. The Claimant was employed by the Respondent from 6 January 2011, initially as a Variable Hours Lecturer. On 20 August 2012, he was appointed to the role of Instructor/Technician. On 1 November 2017, the Claimant was promoted to the role of Motor Vehicle Lecturer on Lecturer Pay Band Extended B.[20]The circumstances of his promotion were as follows. In September/October 2017 the Claimant was offered a job working for a local garage on a higher salary. He told that to his manager, Mr Paul Kay. Mr Kay told the Claimant that he could offer him the Motor Vehicle Lecturer role with a corresponding increase to the salary. Mr Kay misquoted the salary figure to the Claimant as £27,900 per annum, when in fact it was £27,090. The Claimant later discovered that by checking his payslip. He accepted the lower salary.[21]The Claimant accepted the role and stayed with the Respondent. Mr Kay did not tell the Claimant that as part of the new position within two years of his appointment he would need to do the teaching qualification (Cert Ed) course. The Claimant knew that all staff in his role were required to have Cert Ed qualification.[22]The Claimant was appointed in the Lecturer role on 1 November 2017. However, the Respondent sent the Claimant a letter confirming his appointment and his new contract of employment only on 25 January 2018.[23]The letter of appointment stated (emphasis added): “The offer is also subject to completion of satisfactory probationary period and to starting the teaching qualification (Cert Ed) course within two years of the commencement of this post.”[24]The Claimant’s contract of employment contained the following relevant terms (emphasis added): 2 Duties 2.1 You will be employed as Motor Vehicle Lecturer in which capacity you will be required to perform such duties consistent with your position as may from time to time be assigned to you. Your duties may include, but may not be limited to:(a) All forms of pedagogic work including classroom teaching, tutorial work, administration of assignments and associated outreach duties, residential, open and distant learning courses, student placements and student visit programmes. This will generally entail associated organisational and administrative work, preparation, marking, assessment, examination and appropriate student academic counselling.(b) Staff development work including the conduct of and participation in staff appraisal and in-service training based on an assessment of individual service needs.(c) Curriculum development work including identification of consumer requirements, planning, development and evaluation of courses and course materials and supervision of course provision.(d) Management and administration work including responsibilities related to marketing, publicity and public relations including liaison with schools, commerce, industry and the professions; participation in appropriate team and committee meetings; course management including interviewing, admissions, induction, assessment, preparing statistical returns including retention rates, examination results, student progress, placement and destination; monitoring, review and evaluation; participation in quality assurance and control procedures.(e) Research and consultancy work including individual or collaborative research and consultancy work agreed by College management to be part of the lecturer's current duties.(f) Student counselling and welfare work including all specific student welfare and non- academic counselling work. Your duties at any particular time will depend upon your job description and will be described in separate documentation. …. 2.3 You are expected to work flexibly and efficiently, to maintain the highest professional standards and to promote and implement the policies of the Corporation. 2.4 You will be expected to comply with any rules and regulations which the Corporation may from time to time issue to ensure the efficient operation of its business and the welfare and interests of its students and employees. 2.5 Within the College there is a set of Management Guidelines which give a more detailed explanation of the implementation of your duties. 3.Appraisal You will be required to participate in a staff appraisal scheme approved by the Corporation. ….. 7. Salary Your initial salary will be £27,092 per annum, which is salary spine point 27 on Lecturer Pay Band Extended B (£24,097 to £34,291 per annum; spine points 23 to 35). Your salary will rise to the top of the pay band through the payment of annual increments, normally payable on 1 August each year, subject to satisfactory service and in accordance with Corporation conditions of service. Progression to the top point of the scale is subject to attainment of the designated teaching qualification for this post (e.g. Cert Ed.) and relevant Corporation policy. Salaries will be paid monthly, normally on the last working day of the month, in arrears and by direct credit transfer. …. 22.Requirement for Teaching Qualification This contract imposes on you a requirement to secure the qualifications of the type and within the timescale stipulated in the College Policy on the Requirements for Teaching, Literacy and Numeracy Qualifications for Newly Appointed Teachers. The Corporation will review with you, either prior to commencement of employment or shortly thereafter, the qualifications required for the post that you are to fill and will provide such assistance as it deems reasonable to enable you, if required, to secure requisite qualifications. In the event that you fail to secure the requisite qualifications within any period specified by the College, the Corporation may have no alternative but to terminate your employment and to this end the Corporation reserves the right notwithstanding any other provisions of this contract, to terminate your employment by giving notice in accordance with clause 26.[25]Staff Handbook Further information about the College, employment matters and conditions of service is included in the Staff Handbook and the College intranet, and updates will be included in these on a regular basis.[27]Prior and Subsequent Agreements 27.1 This Contract of Employment and any documents expressly incorporated herein constitute the entire terms and conditions of your employment. They cancel and are in substitution for any previous letters of appointment or contracts of employment and all other agreements and arrangements (whether express, implied or deriving from any collective agreement) relating to your employment by the Corporation.25. The Claimant received the letter and the contract in January 2018. He did not read them. In his evidence he said that if he had received them a month earlier, he would have read the contract and the letter, but was unable to explain why he chose not to read them in January 2018.26. The Respondent maintains a policy on teachers’ education set out in its Policy Framework document, available on the Respondent’s internet (the “Universal Drive”).. The Policy Framework documents states: “Sussex Downs College requires employees appointed into teaching roles to have on appointment, or commit to obtain within the timescales described in the table attached (see Appendix), initial teaching, literacy and numeracy qualifications relevant to their teaching role. a. The requirements are summarised in the table attached (see Appendix);” 27. Appendix to the Framework Policy states that all staff employed in primary teaching roles, including the Claimant’s role must obtain within the first 3 years of appointment a full initial teaching qualification at a minimum level 5, such as Cert Ed.[28]The Claimant had access to the Policy Framework document on Universal Drive. He did not access or read it.[29]The Claimant did not want to do the Cert Ed qualification course because he felt it was a commitment he was not prepared to make. The course was a twoyear course. Doing the course would have required the Claimant to devote some time and effort, which the Claimant felt was not worth him doing because he was not planning to stay with the Respondent for more than further 3-4 years. He had other family commitments and outside interests he did not wish to sacrifice for the course. He felt doing the course would be too stressful for him.[30]The Cert Ed course was free of charge for the Claimant. The Claimant would have had to do it in his normal working hours, for which he would have been paid his normal salary. There was an expectation that some personal time would be given to successfully achieve the qualification. The Claimant would have been allocated a mentor to support him through the course.[31]It was known among the Claimant’s colleagues that the Claimant did not want to do the Cert Ed qualification. When Mr Kay offered the Claimant the role he did not tell the Claimant that he would have to do the course. It appears, Mr Kay thought that there was no need for the Claimant to have the Cert Ed qualification to do his job and was keen to keep the Claimant due to the shortage of staff. Mr Kay left the Respondent in summer 2018.[32]When Mr Kay put the Claimant for promotion into the Lecturer B role in November 2017, it was noted on the Staffing Change form, either by the HR Director or the Principal, that the Claimant would “need to start his Cert Ed within 2 years of starting his post”.[33]On 11 June 2019, the Respondent wrote to the Claimant notifying him that the deadline for commencing the Cert Ed course was approaching and that he was required to commence it in September 2019.[34]On 10 July 2019, Ms J Folwell of the Respondent met with the Claimant to explain that he had to start the Cert Ed course and that was part of his contract. She gave the Claimant a copy of his letter of appointment stating that. She explained that although it was an informal discussion if the Claimant would not do the Cert Ed training course that year the matter would move to formal proceedings, and the Claimant would be considered in breach of his contract. The Claimant refused to do the Cert Ed course because he felt under stress and did not have time and energy for the course.[35]On 16 October 2019, the Respondent wrote to the Claimant repeating the requirement for the Claimant to undertake the Cert Ed course, enclosing copies of his appointment letter, his employment contract and the policy. The letter said that the two years’ period within which the Claimant must do the course was about to expire and that if he continued to refuse to do the course, this would become a formal contractual matter. The Respondent invited the Claimant to submit his reasons for refusing to do the training in writing.[36]On 23 October 2019, the Claimant submitted his reasons. He said that Mr Kay knew that the Claimant was not interested to do Cert Ed course and told him that it was OK for him to teach without it. He said that he had not been told that he would have to do the Cert Ed course and if he had known that he would not have accepted the position. He also said that he did not have time to do the Cert Ed qualification training, and that due to stress caused by his family matters he was not “mentally in a place” to do it. He said that he would be happy to return to his previous role.[37]On 8 November 2019, the Respondent wrote to the Claimant stating that there would be a further and final meeting on that matter. The email said that the purpose of the meeting would be to confirm the options available for the Claimant’s final consideration and discussion.[38]On 13 November 2019, the Respondent held a formal meeting with the Claimant to discuss his refusal to do the Cert Ed qualification and the options available to the Claimant. It was explained to the Claimant at the meeting that his refusal to do the course could result in his dismissal. The Claimant was asked to reconsider his position. He said that he did not want to do the Cert Ed course.[39]On 18 November 2019, the Respondent wrote to the Claimant confirming the details of the meeting and inviting the Claimant to a formal meeting for a final decision on 25 November 2019. The letter said that the Claimant had the right to be accompanied to the meeting.[40]On 25 November 2019, there was a formal meeting attended by the Claimant and Ms Conroy. The Claimant confirmed that he did not wish to be accompanied. At the meeting Ms Conroy again asked the Claimant if he would do the Cert Ed course “now or at any point in the future” because it was the Respondent’s responsibility to ensure that all teachers were fully supported in their role. The Claimant confirmed that he would not do the course at any point and that he felt that the subject he taught did not require a full teacher’s training.[41]On 27 November 2019, the Respondent wrote to the Claimant with the record of the meeting and stating its decision to dismiss the Claimant for his refusal to undertake the Cert Ed qualification course, which was a serious breach of contract, and because there were no suitable alternative positions not requiring the Cert Ed qualification. The letter informed the Claimant of his right to appeal the decision.[42]On 2 December 2019, the Claimant appealed his dismissal. His appeal was heard by Mr Cooke on 20 January 2020. At the appeal meeting the Claimant again confirmed that he would not be prepared to do the Cert Ed qualification course even if that meant him losing the job (“Cert Ed is out of the question” … “I have made decision – no. If I lose this job – I will get something else.”). Mr Cooke upheld the dismissal. The Claimant was notified of the outcome of his appeal on 28 February 2020.
The Law
[43]The law relating to unfair dismissal is set out in S.98 of the Employment Rights Act 1996 (ERA). “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) The reason (or, if more than one, the principal reason) for the dismissal; and(b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it – (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do; ….. (3) In subsection (2)(a)— (a) “capability” , in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b) “qualifications” , in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.[44]The statutory definition of qualifications includes in-house aptitude tests devised by an employer, provided they are relevant to the particular job (Blackman v Post Office 1974 ICR 151, NIRC).[45]In Blue Star Ship Management Ltd v Williams 1978 ICR 770, EAT, the EAT held that ‘qualifications’, as defined, are concerned with ‘matters relating to aptitude and ability’ and that a ‘mere licence, permit or authorisation’ is not a qualification unless it is substantially concerned with the aptitude or ability of the employee to do the job.[46]Qualification requirements need not necessarily be expressly stated in the contract of employment. They may be inferred from the job advertisement or implied from the nature of the job itself (Tayside Regional Council v McIntosh 1982 IRLR 272, EAT).[47]Where an employee is engaged on the understanding that he or she will acquire a particular qualification but then fails to do so and then dismissed such dismissal will be for the reason related to capability or qualification and may be fair even if there were no complains about the employee’s work (Blackman v Post Office 1974 ICR 151, NIRC).[48]It is for the employer to set the standards asked of employees. A tribunal must substitute their own view of an employee’s competence or required qualification (see Fletcher v St Leonard’s School EAT 25/87). The appropriate performance standard must be judged according to the employee’s current contractual requirements and role.[49]A reason for dismissal is “is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.” (Abernethy v Mott, Hay & Anderson [1974] ICR 323).[50]If the employer shows that the reason for the dismissal is a potentially fair reason under section 98(1), the tribunal must then consider the question of fairness, by reference to the matters set out in section 98(4) ERA which states: Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.[51]In looking at whether dismissal was an appropriate sanction, the question is not whether some lesser sanction would, in the Tribunal's view, have been appropriate, but rather whether dismissal was within the range of reasonable responses that an employer could reasonably come to in the circumstances. The Tribunal must not substitute its view for that of a reasonable employer. (Iceland Frozen Foods Limited v Jones 1982 IRLR 439, Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23, and London Ambulance Service NHS Trust v Small 2009 IRLR 563) Analysis and Conclusions Reason for Dismissal[52]Mr Callaghan, for the Respondent, submits that the reason for the Claimant’s dismissal was his refusal to commence the undertaking of the Cert Ed qualification, which was relating to the aptitude and ability of the Claimant to complete the role he employed to do by the Respondent. That was the role of a Teacher or a Lecturer and had specific responsibilities. The qualification was required to ensure those responsibilities were met.[53]He further submits that the requirement to commence the Cert Ed course was a contractual requirement the Claimant was bound by. The Respondent relies on the written contract of employment, the appointment letter, and the policy terms. Mr Callaghan points out that the Claimant admitted on crossexamination that he was aware from 2011 of the requirement for all teachers to have Cert Ed qualification and that he was aware in 2017 that the requirement would apply to him in his new role as evidenced by his opposition to undertake the qualification. The Claimant admitted that he had received the written contract and the appointment letter but had not read them and that he had access to the policy on the Respondent’s Universal Drive. Therefore, Mr Callaghan submits, the Claimant was contractually bound to undertake the Cert Ed qualification.[54]Mr Callaghan further argues that there are no sufficient evidence of the alleged oral agreement between the Claimant and Mr Kay that the requirement to undertake the Cert Ed qualification would not apply to the Claimant.[55]Finally, he submits that whatever the contractual position might be the reason the Respondent dismissed the Claimant is still capable of being fair in the circumstances.[56]Miss Nanhoo-Robinson, for the Claimant, argues that the Respondent was wrong in dismissing the Claimant because the Claimant worked under an oral agreement that he had made with Mr Kay. She argues that the effect of that oral agreement was to “preclude” the written contract because it was preceded by the oral agreement, or to “vary” the terms of the written contract to exclude the requirement for the Claimant to undertake the Cert Ed qualification stated in clause 22 of the written contract, or to operate as a waiver of the Cert Ed qualification requirement. She also makes references to “representations” made to the Claimant and the Respondent’s “affirmation” of the oral agreement.[57]I do not see any of that being relevant to the first issue I need to decide, that is the reason for the Claimant’s dismissal. These issues go to the question of whether the decision to dismiss was fair withing the meaning of s.98(4) ERA, and I shall deal with them later in my judgment. The Claimant did not argue that the Respondent had some ulterior motive to dismiss him and that the real reason for his dismissal was not his refusal to undertake the Cert Ed qualification.[58]In any event, based on the oral witness and documentary evidence before me, I am satisfied that the reason for the Claimant’s dismissal was him not having the Cert Ed qualification and his refusal to undertake the necessary training to obtain it. I am also satisfied that the Cert Ed qualification was concerned with the aptitude or ability of the Claimant to do his job. Therefore, the reason for his dismissal was related to “qualification” within the meaning of s.98(2)(a) ERA. Did the Respondent act reasonably or unreasonably in treating that reason as sufficient for dismissal?[59]Mr Callaghan for the Respondent submits that the dismissal was fair in the circumstances because:a. The requirement applied to all teachers and it was reasonable for the Respondent to expect the Claimant to comply with it,b. The Claimant was notified in good time of the requirement to complete the qualification,c. The qualification was offered by the Respondent for no cost to the Claimant. There was provision for time to be taken out of the working schedule to accommodate training. A mentor was available. All that was reiterated to the Claimant through the dismissal process,d. The Respondent considered extending the time period for the Claimant to complete the qualification, but the Claimant refused from the outset to consider any form of compromise,e. Redeployment was considered by the Respondent at the initial dismissal, and under instruction by Clive Cooke at the appeal stage. It was not possible to do so. This was due to the phasing out of the Claimant’s former Instructor Technician role and the Claimant’s unique skills and his salary expectations,f. Quality issues had emerged from the Claimant’s work. It was reasonable to expect the Claimant to undertake training to remedy this,g. Procedurally, the Claimant was treated fairly. He was given an opportunity to state his case at the meeting on 25 November 2019, and the appeal hearing on 20 January 2020 with support,h. It was a contractual requirement of Claimant’s contract of employment. If it was not, the refusal of the Claimant to consider the reasonable request of management to do the qualification in any form rendered the Respondent’s decision to dismiss reasonable.[60]Finally, Mr Callaghan argues that irrespective of whether the Claimant was capable of doing his job without the Cert Ed qualification, his dismissal for that reason was still fair in the circumstances. He draws my attention to the case of Blackman v Post Office [1974] IRLR 46, [1974] ICR 151, which he says should be applied by analogy.[61]Miss Nanhoo-Robinson, for the Claimant, argues that the dismissal was unfair because the Claimant was dismissed for his refusal to perform a term of his contract (to undertake the Cert Ed training), which was not effective because of the oral agreement/waiver/affirmation.[62]She further argues that the Claimant had told the Respondent that he was suffering from stress, there had been work issues, and the Claimant had performed in good faith in accordance with the agreement. She says the Respondent failed to give regard to his actual work, his place in the team, his commitment to the Respondent, his loyalty/length of service.[63]She submits that in those circumstances any reasonable employer would have:a. assessed the necessity of the qualification for the Claimant’s particular role,b. treated the notification in June 2019 as a change of affairs because of the prior state of affairs based on the oral agreement and not dismissed the employee,c. would have given the Claimant written notice that he was required to commit to it within 3 years, namely commit by the earliest 25 January 2021 or be demoted, if a vacancy (on this example in January 2021) was available,d. looked for suitable alternatives. Bearing in mind the Claimant’s state of mind,e. sent the Claimant information on vacancies and when they arose, by email or given him a printed copy. “Oral agreement”[64]While I do not consider this case turns on this issue, I shall deal with it first. Having considered all the evidence before me, I find that what Miss NanhooRobinson refers to as “oral agreement” was not a legal agreement binding on the Respondent. I accept that there was an understanding between the Claimant and Mr Kay that the Claimant did not want to do the Cert Ed course and that was also known to the Claimant’s colleagues. But that is as far as it goes, and that falls far short of being a legal agreement binding on the Respondent.[65]Mr Kay did not give evidence to the Tribunal and was not cross-examined. However, even taking his witness statement at its face value it simply states that “We” [and it is not clear who he is referring to] never expected [the Claimant] to take the cert ed qualification, and hence why he was not promoted to full lecturer grade B at the time”. This, in my judgment, does not mean that there was no contractual requirement on the Claimant to have the Cert Ed qualification, nor that the Claimant was positively promised that he would not need to do the Cert Ed training. Mr Kay’s statement also contradicts the accepted fact that the Claimant was promoted to lecturer grade B role and paid accordingly.[66]Mr Poil, who gave evidence to the Tribunal, says; “at no time was [the Claimant] told he would be required to do the Cert Ed, I know he wouldn’t have taken the position if that was explained to him”. Firstly, Mr Poil is not the Claimant and cannot positively say that he knows everything what the Claimant was or was not told. When cross-examined he admitted that he was not privy to any conversations between Mr Kay and Human Resources related to the Claimant’s promotion. He also admitted that Mr Kay had never told him about any such conversations or their contents.[67]Mr Kay’s written statement makes no mention of any such conversation with Human Resources. However, it does say that the issue of the Claimant not having the Cert Ed qualification had been raised with him on several occasions and “a case was put to [the quality team] why it wasn’t required”. This, however, does not show that the Respondent ever agreed that the Claimant would not be required to undertake the Cert Ed qualification. Mr Streeter’s and Mr Bamber’s statements do not say that either.[68]Furthermore, the Claimant’s own witness evidence do not go as far as to say that he was positively promised that he would not be required to undertake the Cert Ed qualification. He says it was “not mentioned” to him and if he had been told he would not have accepted the promotion. That is quite different from a positive agreement that he would not be required to do the qualification. As he admitted in cross-examination, he knew of that requirement applying to all staff in his new role. Therefore, I do not see how that requirement not being specially mentioned to him by Mr Kay makes any difference.[69]It is clear from the Claimant’s Staffing Change/Amendment Form that the Respondent expected the Claimant to do the Cert Ed qualification within two years of him taking the post, and that was part of the Respondent accepting the case for his promotion. I do not accept Miss Nanhoo-Robinson suggestion that the Respondent added that annotation on the form on the day of the hearing. On the balance of probabilities, I find that it was put on the form at the time of the Claimant’s promotion being approved by the Respondent in November 2017. The fact that Mr Kay might have chosen not to tell that to the Claimant (perhaps thinking that two years is a long time, and a lot of things could happen by the time the two years’ period runs out) does not mean that the requirement was not effective or that it did not form part of the Claimant’s contract.[70]I do not follow Miss Nanhoo-Robinson argument that the “oral agreement” “varied” the written contract. On her own case, the “oral agreement” preceded the written contract, and consequently if there were any variations of the Claimant’s terms of employment it would be the written contract varying the terms of the “oral agreement” and not the other way round.[71]I also do not accept Miss Nanhoo-Robinson submission that Mr Kay made “representations” on behalf of the Respondent. As I stated above, there are no evidence of Mr Kay making any positive statements to the Claimant that he would not be required to undertake the Cert Ed qualification. It is trite law that mere silence cannot be a representation. “Waiver of Clause 22”[72]I am equally unpersuaded by Miss Nanhoo-Robinson analysis on the basis of the Respondent’s “waiver” of clause 22 or “affirmation” of the oral agreement by the Respondent’s “actions or omissions”. There were no evidence before me of any statements (written or oral) made by the Respondent to the effect that clause 22 of the written contract would not apply to the Claimant. On the contrary, the Respondent repeatedly told the Claimant that he was contractually required to undertake the Cert Ed qualification, as stated in his contract. There was nothing for the Respondent to “affirm”.[73]If the argument (and I do not see that being properly developed in Miss NanhooRobinson’s written submissions) is that by not asking the Claimant to do the qualification training earlier than June 2019, the Respondent somehow “affirmed” the “oral agreement” between the Claimant and Mr Kay, or “affirmed” the Claimant’s breach of clause 22, or “varied” the written agreement to waive the provisions of clause 22, I find it misconceived. The Respondent acted in accordance with the written contract and the policy allowing the Claimant two years in which to commence the Cert Ed course and notified the Claimant in June 2019 when the time was running out for him to commence the training.[74]I accept the Respondent’s evidence that the reference to three years in the policy is to the period, within which a teacher appointed in the role is required to obtain the qualification, rather than to commence the relevant course, which in the Claimant’s case was two years’ long.[75]In any event, whatever the Claimant might have thought at the time of accepting the promotion, his appointment letter and the written contract put the matter beyond any doubt. The fact that he chose not to read them, in my judgment, does not make them less binding on the Claimant. He accepted that he had received them. He understood that these were the terms of his employment related to his new job. He accepted the terms by taking the job and accepting salary he was paid for it.[76]Whatever reliance he might have placed on Mr Kay’s not telling him about the Cert Ed qualification, in my judgment, cannot displace the legal effect of the written contract being formed on its terms. That was done by the Respondent sending the contract containing those terms, the Claimant receiving it and accepting the terms by taking the role, working in that role and accepting monthly salary payments paid to him by the Respondent for the Claimant doing his job on the offered terms, including the requirement to start the Cert Ed qualification course within two years of the appointment.[77]Further, the Claimant was on notice that whatever Mr Kay might have told him about his new employment terms did not necessarily mean was correct. Mr Kay was wrong on the Claimant’s new salary, and the Claimant accepted a lesser salary as part of his promotion, because that what the Respondent’s Human Resources told the Claimant the correct terms were, as these were stated in the written contract.[78]In any event, even if clause 22 was not part of the Claimant’s contract of employment (and my primary finding that it was and binding on the Claimant), in my judgment, the Respondent was well within its rights to rely on the policy in requiring the Claimant to undertake the training and to obtain the Cert Ed qualification. The policy applied to all the Respondent’s teachers. The Claimant knew that. Whatever the Claimant, Mr Kay, Mr Poil or any other of the Claimant’s colleagues thought about whether the Claimant could do his job without that qualification is irrelevant.[79]I am satisfied that the Respondent had good reasons to require that all its teachers have the appropriate teacher qualification. The Respondent applied that requirement to all its teaching staff in the Claimant’s role. The Claimant was not singled out in that respect. It is not for the Claimant or any other individual employee, or indeed this Tribunal, to re-write the Respondent’s qualification requirements’ policy or to tell the Respondent to make exceptions to it.[80]I reject Miss Nanhoo-Robinson argument that the Respondent should have assessed the necessity of the qualification for the Claimant’s particular role. It had done that, and that was the basis for the policy and the Claimant contract terms. I see no reason why the Respondent should be required to do another assessment just because the Claimant did not want to do the qualification and thought that he could do his job without it.[81]As to “accepting the state of affairs” argument, the Respondent evidence were (and I accept them) that it did take into account that initially the Claimant might not have been told of the qualification requirement because this had not been specifically mentioned to him by Mr Kay, and also that if he had known he would not have taken the job. As a result, the Respondent was prepared to give the Claimant more time to start and complete the course, but the Claimant was unequivocal that he would not do it at any time in the future.[82]For the same reasons, I reject Miss Nanhoo-Robinson’s argument that the Respondent should have given the Claimant one final warning to start the qualification course. By that stage, the Claimant had been given plenty of informal and formal warnings, and on each occasion, he was clear that he would not do the qualification even if that meant him losing his job (“Cert Ed is out of the question” … “I have made decision – no. If I lose this job – I will get something else.”).[83]The Respondent looked for suitable alternative roles, but unfortunately there were none available. Information on where to look for other vacancies was provided to the Claimant. The fact that it was not sent to the Claimant by email or given to him as a printed copy, in my judgment, makes no difference. The information was available to the Claimant and he knew where to find it.[84]I find no serious procedural flaws in the process the Respondent adopted, and certainly none that would take the Respondent’s decision to dismiss the Claimant outside the range of reasonable responses.[85]In my judgment, the Respondent had legitimate reasons to require the Claimant to undertake the Cert Ed qualification training. In reaching the decision to dismiss the Claimant, the Respondent considered all relevant factors, including the Claimant’s length of service. It gave the Claimant every opportunity to state his case. It tried its best to support the Claimant and encouraged him to change his mind. There were no other suitable roles available for the Claimant to take, which would not have required him undertaking the Cert Ed qualification course.[86]The Claimant’s steadfast refusal to do the qualification training required for his job left the Respondent with little choice but to dismiss the Claimant.[87]Stepping back and looking at all the merits of the case, I am satisfied that in all the circumstances it was reasonable for the Respondent to treat the Claimant’s refusal to undertake the Cert Ed qualification as a sufficient reason for dismissing the Claimant and the procedure it followed was fair.[88]For these reasons, I find that the Claimant’s dismissal was fair and his claim for unfair dismissal must fail.