Mr M Pollard v Aquinas Church of England Education Trust and Others: 2303117/2019

EMPLOYMENT TRIBUNALS

Case No 2303117/2019

Between

Mr M PollardClaimant

Aquinas Church of England Education Trust and OthersRespondent

Before

Employment Judge Tsamados

In person for claimant

Ms H Iyengar (instructed by Counsel) for respondent

Date 2 December 2021

JUDGMENT

The Judgment of the Employment Tribunal is as follows: The Claimant does not hold a philosophical belief within the meaning of section 10 of the Equality Act 2010. His complaint of discrimination on the basis of philosophical belief therefore fails and is dismissed.

REASONS

[1]By a claim form received by the Employment Tribunal on 5 August 2019 after a period of Early Conciliation which started and concluded on 1 August 2019, the Claimant brought complaints of direct discrimination on the basis of a philosophical belief, discrimination arising from disability, victimisation in respect of both protected characteristics, automatic unfair dismissal for making a protected disclosure, breach of contract and the denial of the right to be accompanied to a disciplinary hearing against the Respondents.

[2]A closed preliminary hearing took place on 5 February 2020 and was conducted by Employment Judge Freer. At that hearing, a full hearing was set for 17-28 August 2020, as well as a number of case management orders intended to prepare the case of that hearing, and an open preliminary hearing was listed for 27 March 2020 to determine the following question: Whether or not the Claimant held a philosophical belief in the integrity and sanctity of the British educational system pursuant to section 10 of the Equality Act 2010.

[3]At a further preliminary hearing which took place by telephone on 27 March 2020, Employment Judge Hargrove postponed the open preliminary hearing to 27 April 2020.

[4]That hearing was also postponed and the first day of the full hearing (today) was converted to an open preliminary hearing to determine the above question. This hearing

[5]This hearing was conducted by CVP. At the start I confirmed that I would be determining the preliminary issue with regard to the complaint of philosophical belief and also dealing with the Claimant’s application for leave to amend, written answers and disclosure, and the Respondents’ application to vary the order for exchange of witness statements, in additional any further case management that was required as well as setting a new date for the further hearing. The case management elements are dealt with in a separate record of the closed preliminary hearing.

Evidence

[6]I was provided with a bundle of documents from each party and the parties were in dispute as to which bundle I should use. I determined that I would refer to both bundles as appropriate and was provided with a reading list by the Claimant. The Claimant’s bundle was divided into sections A to F and had a total of 282 pages and the Respondents’ bundle had a total of 171 pages and a separate index.

[7]I will refer to the Claimant’s bundle as “C” followed by the relevant section letter and page number where necessary and to the Respondents’ bundle as “R” and followed by the relevant page number where necessary.

[8]I was provided with a document from the Claimant which was said to be a witness statement but was in fact a mixture of evidence and submissions (R55-68). Reference was made to a number of appendices, some of which were included at R69-67 and some of which were simply references to websites and were not reproduced within the bundle. I did not consider the referenced websites. I heard evidence from the Claimant by way of the witness statement and in answer to questions.

Findings

[9]I set out below the findings of fact I considered relevant and necessary to determine the issues that I was required to decide. I do not seek to set out each detail provided to the Tribunal, nor make findings on every matter in dispute between the parties. I have, however, considered all the evidence provided to me and have borne it all in mind.

[10]The Claimant’s essential position is that his belief in protecting the British education system constitutes a protected belief pursuant to section 10 of the Equality Act 2010. He maintains that his belief in protecting the integrity and sanctity of the British education system from taint of corruption should be recognised. He believes that education plays a vital role in society. Moreover, he genuinely believes that the wealth of legislation, expenditure, public scrutiny, discussion and research that goes into education supports his belief and that there is no cause for further scrutiny on the point.

[11]The Claimant has not been able to work in education since his employment with the First Respondent came to an end.

[12]His written statement sets out at length the background to his belief. He sets out his experience in the educational field specifically in the field of music. He sets out his experience through his family of the education system and as to his studies. He essentially says that his life has been shaped by his educational experiences, the individuals he has come into contact with and his own opportunities to contribute to the educational experiences of others. His statement talks of his belief that the educational system has allowed the abuse of young people particularly in British music establishments and refers to what he sees as failings in the system which have not been addressed by others.

[13]His statement makes reference to the facts relevant to his substantive case. Without treading on the toes of any further Tribunal that will deal with this matter I set out the gist of this as follows without making any comment as to their veracity. In April 2018, the Claimant was employed by the First Respondent as Interim Head of Music and then from May 2018 as substantive Head of music. Shortly after accepting the substantive post he uncovered evidence of malpractice as to examinations and coursework and subsequent anomalies in the results. In September 2018, he brought these concerns to the attention of his line manager. A few days later he was invited to a three-month probation meeting which resulted in criticisms of his performance. He informed the Head teacher of his concerns over the conduct of other members of staff and what he was observing and experiencing was against what he stood for and believed education to be about and that he would start looking for alternative employment. The Head Teacher informed him that the results were now all in order. In November 2018, the Claimant was suspended from work for alleged safeguarding reasons. After investigation, the First Respondent advised the Claimant that there was a case to answer. He raised a grievance expressing his concerns about the process followed and discrimination. Ultimately, he was called to a meeting which he thought was to discuss his grievance but in fact was a dismissal meeting, his employment being terminated with immediate effect. That decision was upheld on appeal.

[14]His written statement then sets out the Claimant’s philosophical belief. The Claimant states that he “believes that protecting the integrity and sanctity of the British education system from taint and corruption is paramount”. He further states that he believes that education plays a vital role in society and that “the wealth of legislation, expenditure, public scrutiny, discussion and research that goes into education supports his belief and that there is no cause for further scrutiny on this point”.

[15]The statement goes on to express at length the Claimant’s belief in terms of the words “integrity”, “sanctity”, “taint” and “corruption”. The statement also sets out at length his position as to teaching standards and by reference to a number of different sources. He references his allegations against the Respondents as part of this in terms of his concerns as to how the Respondents treated pupils academically, ethnically and personally and how these matters arose during the course of his employment. This statement goes on to talk about his alleged whistleblowing to the Ofqual and he makes reference to Maistry v BBC and A v B Ltd & others, both of which were decided at Employment Tribunal level.

[16]In cross examination the Claimant was asked questions as to how his belief manifested itself in his life and how it continues to do so, given that he has not worked in education since his dismissal. The Claimant replied that an adult in any position of responsibility should take such matters very seriously and strive to uphold these beliefs. Whilst he is unable to work in a school anymore, his belief still manifests itself because it is how he advises his neighbours on his children’s education, on advising refugees and acting as a mentor of refugees.

[17]It was put to him that he was purely putting forward his opinion as to education, everyone has an opinion and all teachers have to abide by professional standards, so does that mean that everyone has such a philosophical belief? He responded that it was not for him to say whether everyone who had an opinion on education held a philosophical belief or that any teacher that abides by professional standards has such a philosophical belief. He was of the view that professional standards in themselves do not amount to a philosophical belief.

[18]He was referred to paragraph 41 of his witness statement which refers to his experience as a music teacher which I set out below: As a music teacher, vocal work formed a vital part of the work he did. Whilst many adults see singing as trivial, the Claimant is aware that the comments he makes, as a professional about a pupil’s voice can have long lasting implications. The plethora of programs where the judging of others is the norm is not a great model for education. Vocal work in the classroom is not merely about churning out entertainment for others. The voice is integral to one’s identity. Giving value to someone’s voice has both musical and existential implications. These concepts are wonderfully articulated and explored in Patsy Rodenburg’s book, forward by Sir Ian McKellan ‘The Right to Speak. Working with the voice.’

[19]He was asked to explain what this meant. He said that it was an example of how we take things for granted and how they impact upon children, changing the way we tell a boy his voice has broken which implies there is something wrong. He said it is something we may not see in education, but it impacts upon a person’s life.

[20]The Claimant was asked where others could find out what the content of his belief was over and above what was written in his statement? His reply was that as it was a never-ending way of getting better and better, his statement sets out the ways that he defines the belief, not the source.

[21]He was asked how his work colleagues would know that he had such a belief? He referred to matters occurring on 13 September 2018 and documents at C Section C 128-132. He explained that he told the Respondents what was wrong and that later on he had to leave because this was against everything he believed in.

[22]He was asked how his belief was any different from an opinion held by other teachers holding the same professional concerns. He said he did not know. He said that all he knew was that when he raised his concerns and said he was not going to be a part of it, the relationship between the parties went bad. He then referred to what had gone wrong by reference to C Section D 171-193. He said that it was not just a professional standard it was more than that, he said that he had experienced such matters as a teenager and seen people’s lives being ruined by such things, one person having committed suicide and then years later this happens. He said it was personal to him and it upset him.

[23]The Claimant was then asked how someone who wants to understand the content of his belief would know about it. He started to read a prepared document. When I asked him what this was, he said that he believed in protecting educational experience from being ruined or abused and that he tried his best to articulate his belief but he was not a legal person.

[24]The claimant was again asked how someone would know the content of his belief and that whilst he says he is clear in his mind, how would someone in a new school know what it was, so that they could say we want to respect his belief? His response was that ordinarily he would not need to say. He gave the example of a Christian not having to state that they were Christian. But he added that increasingly he sees the need to say it and will have to say this is not what I want to do and I will not take part in it. He said that was why he had to raise the issue with the Respondents and one would think he would not have to say it, as the second that you do, it is a judgement on the organisation.

[25]He was then asked how a fictional new employer taking on a new teacher and training them as to professional standards would be able to train that teacher as to his stated philosophical belief so as to respect that philosophical belief? The Claimant responded that the fictional employer should not have to do anything, but he would say “not to pull a fast one”.

[26]He was then asked what if a colleague says, “I act with integrity, but I do not understand what the Claimant says is a philosophical belief as being anything more than my own professional standards”. The Claimant responded that it was a good question and he had not thought about how he would have to say it. But he thinks that everyone should be on the same page or there should be a Hippocratic Oath for teachers.

[27]It was then put to the Claimant that some people belong to a religion to please their mother or they want a religious wedding or they like the social side of the religion. So why is it then the case that the matter that he has in mind amounts to a philosophical belief? The Claimant responded that it was the importance and the time it takes up in his mind, he would not go along with certain things, he will stand up and not take screaming and shouting at children and will not shy away from it.

[28]He was then asked questions about the “integrity” and “sanctity” of the British education system. His written submissions referred to different types of educational systems in Britain and he was asked what he meant by this. He replied that he meant adults working in the educational system involving children 5 to 16 and including home schooling. He added that this extended to all staff in schools and to the government as well.

[29]He was asked whether the British education system was different from others overseas and why there was a special integrity for the British system. He responded that it was not different.

[30]He was asked how is it not just important as a human right. He responded that it was a human right and it should be free from “taint of “corruption” and we should do better than just giving an education. It was put to him that is being free from taint of corruption simply abiding by the laws of the land. His response was that taint for him is as set out in his witness statement at R44 and means “somehow ruined”, for example when a school blames the children for something it has done wrong, for example teaching the children the wrong thing, whilst it is not unlawful or prohibited, to him it is taint.

[31]I heard submissions from both parties which I considered as part of my deliberations and my conclusions.

Relevant law

[32]Section 10 of the Equality Act 2010:(1) Religion means any religion and reference to religion includes a reference to a lack of religion.

(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

(3) In relation to the protected characteristic of religion or belief – (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief; (b) a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.

[33]Religion and belief are protected characteristics under the Equality Act 2010. The reference to belief is to philosophical belief. Philosophical beliefs may be just as fundamental or integral to a person’s individuality and daily life as are religious beliefs (GMB v Henderson [2015] IRLR, EAT).

[34]In Grainger plc and others v Nicholson

[2010] IRLR 4

, the Employment Appeal Tribunal set out guidelines for deciding whether a belief is covered by the Equality Act 2010. These guidelines are as follows :a. the belief must be genuinely held;

b. it must be a belief and not an opinion or viewpoint based on the present state of information available;

c. it must be a belief as to a weighty and substantial aspect of human life and behaviour;

d. it must attain a certain level of cogency, seriousness, cohesion and importance;

e. it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

[35]In arriving at these guidelines, the EAT considered case law under the European Convention on Human Rights, particularly article 9 (freedom of thought, conscience and religion) and article 2 of Protocol 1.

[36]It does not matter if no one else shares the philosophical belief in question

[37]In Harron v Chief Constable of Dorset Police

[2016] IRLR 481

, the Employment Appeal Tribunal said that these requirements in Grainger should not be set to a higher level. “Substantial” in guideline c. just means “not trivial”, “cohesion” in guideline d. simply means intelligible and capable of being understood. Closing submissions Respondents

[38]Ms Iyengar provided written submissions (at R108-133) which in essence made the following points:a. The Respondents challenge the Claimant’s asserted philosophical belief principally under paragraph d. of the Grainger guidelines and it is not intelligible or capable of being understood under Harron. She points to the large volume of materials which are referenced in the Claimant’s witness statement and appended as illustrating the problem. Namely that what the Claimant asserts to believe in is vague, unclear, imprecise, confusing and hard to pin down. It is not clear what the “integrity” or “sanctity” of the British education system is, or even if they are the same or different things. Further, there are many different types of educational settings within Britain. The Claimant has not shown what the British education system means or how it differs from other education systems. He appears to assert that the British education system has a special “integrity” or “sanctity” which foreign education systems, or other professional standards frameworks applying to other industry sectors lack. However, he does not explain how so. Further he does not explain in a coherent way what he means by “taint” or “corruption”. Since the basic concept of what the British education system is remains confused and undefined, he has not been able to demonstrate what it would mean if it were to be subjected to “taint” or “corruption”.

b. The Respondents also assert that the Claimant does not meet paragraph a of the Grainger guidelines. As the alleged philosophical belief cannot be defined or understood, it is not possible to ascertain whether or not the Claimant genuinely held that very wide set of thoughts in his mind, including the large quantity of diverse materials which he has included in his witness statement and its appendices.

c. The Respondents also assert that the Claimant fails to satisfy paragraph b of the Grainger guidelines. His witness statement consists of his opinions and viewpoints based on the present state of information on a wide range of educational topics, as his witness statement and its appendices demonstrate.

d. The Respondents further assert that the Claimant does not satisfy paragraph c of the Grainger guidelines. The set of thoughts he puts forward, as an experienced teacher, are simply his comments on a range of professional issues, and that a set of pensive reflections is not a belief as to a weighty and substantial aspect of human life and behaviour.

e. The Respondents also assert that the Claimant does not meet paragraph e of the Grainger guidelines. The Claimant asserts that protecting the integrity and sanctity of the British education system from taint and corruption is paramount. It is clear that there exists a high-level norm of international human rights law that children should have a right to receive an education, and such a human right would be worthy of respect in a democratic society, not be incompatible with human dignity and would not conflict with the fundamental rights of others. Nevertheless, the Claimant’s asserted philosophical belief is quite different to a belief that there should be a universal right to education, or any belief of that nature. As the content of the set of thoughts which he puts forward as constituting a protected philosophical belief remains so unclear, it is not possible for the Tribunal intelligibly to determine whether that set of thoughts is worthy of respect in a democratic society, not incompatible with human dignity, and would not conflict with the fundamental rights of others.

[39]Ms Iyengar spoke to her written submissions. In essence she made the following points:a. It was clear from the Claimant’s written statement and more so from his oral evidence today that he did not satisfy the Grainger criteria;

b. He still has not been able to explain what his philosophical belief is and how it goes beyond what we expect from all teachers;

c. He has not been able to explain what the content is and it remains unintelligible to an outsider;

d. Given the statutory protection under the Equality Act 2010, an employer needs to be able to understand what a person’s philosophical belief is;

e. When these provisions came into force, training was available, for example on Rastafarianism or Jehovah’s Witnesses or climate change. This was easy to research, there were resources that employers could go to and to read about what it means and to educate their employees to respect those beliefs;

f. However, the Claimant’s belief is incoherent and as a result there is no way of instructing employees about it;

g. The Claimant just has a strong belief about certain matters. There can be strong disagreements within the teaching profession about such matters which are outside the scope of the law and outside the teaching framework and as to best practice;

h. It is impossible for someone working with the Claimant to respect his belief because it is only him that understands it and what “taint” and “ethics” mean;

i. The concerns he says that he raised about the examination marks and other matters are exactly the sort of issues for which the whistleblowing provisions were enacted so as to protect workers;

j. It is wrong to characterise these matters as a philosophical belief and it is misconceived to do so. If it were right then it would follow that every single whistle-blower would argue the same thing about any matter they blow the whistle on;

k. The Claimant’s belief amounts to all the things he felt strongly about as a teacher;

l. Those things could have been brought under another jurisdiction and indeed they will come before the Tribunal in any event.

[40]In response the Claimant said that this was not about whistleblowing, it was a belief that started when he was a child and is a lifelong belief. He came from a family of teachers, his conversations with staff are not just opinions, there is evidence and he has an obligation to find out the best he can and share that with other people. It informs his conversations and how he interacts with other people and it is wider than just education and examination results. It is about protecting children.

Conclusions

[41]I have to say that I found the Claimant’s evidence both in his written statement and in oral testimony to be nebulous and verbose. I found it difficult to understand what he meant and what relevance his answers were to the questions he was being asked. I have attempted to summarise his salient evidence as best I could.

[42]I have considered this as well as the submissions against the Grainger principles.

[43]Whilst the Claimant might have genuine concerns or beliefs as to the educational system, what was apparent from his evidence was that this did not go any further than strongly held opinions or viewpoints based on the present state of information available as to the educational system.

[44]I accept that there would be differing views as to professional and educational standards some of which would simply fall to a matter of opinion, some of which could be outside of those professional and educational standards and some of which were perhaps unlawful.

[45]I also accept that such a belief is capable of being a weighty and substantial aspect of human life and behaviour as per paragraph c of the Grainger principles.

[46]However, the Claimant’s evidence was so difficult to follow and to pin down precisely that it was impossible to say that his belief met paragraph d of the Grainger principles as further defined in Harron as meaning intelligible and capable of being understood.

[47]Beyond a strongly held belief as to certain principles to do with the education system, it was hard to identify exactly what the education system was, what standards the Claimant applied to it beyond those matters which ethically or morally he did not system accept.

[48]If it is impossible for the Claimant to coherently express what his philosophical belief is and its parameters, then it is impossible for others to understand it, both employers and employees alike, or to have regard to it in terms of respecting it.

[49]It did seem to me that what the Claimant was complaining about was something closer to the protection afforded to whistle-blowers and that to equate those types of concerns to the level of a philosophical belief simply went too far.

[50]For these reasons I do not accept that the philosophical belief that the Claimant asserts falls within the definition of section 10 of the Equality Act 2010.

[51]The complaint of discrimination under section 10 therefore fails and is dismissed. Case management

[52]There were matters to do with case management which fell to be determined at this hearing but which I did not have time to deal with. These matters are set out in a separate case management summary. LIABILITY JUDGMENT It is the unanimous Judgment of the Tribunal that the claimant’s claims under the: Equality Act 2010 (EQA); Employment Rights Act 1996 (ERA); s. 10 Employment Relations Act 1999; and of breach of contract and wrongful dismissal fail and are dismissed.

Findings of fact

[53]Furthermore, the Tribunal finds that this email is not ‘something’ arising as a result of the claimant’s disability. The claimant had been stridently setting out his views since his employment commenced, for example, his view that garageband needed to be installed. He had been sending emotive correspondence since at least his grievance on 21/1/2019.

[54]At the time of the email of 24/4/2019 the respondent was not on notice of any health issue for the claimant. The most recent GP note for the claimant was on 15/1/2019 for stress.

[55]The grievance appeal outcome was dated 24/2/2019 (page 1009) and it confirmed that the claimant’s concerns regarding the accuracy of the pupils’ exam results was, in effect, adjourned, pending the outcome of the investigation by Ofqual and NCFE (page 1010). 3 Teaching Regulation Agency

[56]A response sent on behalf of Mr Parker on 24/4/2019 suggested a meeting on 29/4/2019 at the respondent’s office (not at the school) at 8.30am (page 1006). The claimant was asked to confirm he would be attending. There was no response from the claimant and he was asked again on 26/4/2019 to confirm he was attending, the Trustees having reorganised their commitments in order to accommodate the meeting (page 1005). The claimant sent an email reply later that day (26/4/2019) with a request to delay by one week and referred to an attached letter which he said was a reply to Mr Parker’s request (by inference in reply to Mr Parker asking the claimant to confirm he would be attending the meeting on the 29/4/2019) (page 1015).

[57]The claimant in his letter vehemently repeated his allegations and he said: ‘The Trust and Trustees appear unconcerned by the lies, misrepresentations, significant omissions and disgracefully low professional standards that underpinned the malicious disciplinary process I was subjected to. … By my reckoning, 3 members of the SLT are actively involved in the coursework manipulation and 2 members of the Trust, through refusing to act on the information given to them, are complicit in an attempt to conceal it.’

[58]This is a feature of the claimant’s accusations by this stage; he does not report facts. For example, he does not say what he believes the ‘coursework manipulation’ to be. He does not say which members of staff or Trustees he accuses. The coursework issue is that some students were credited with having produced coursework when they had not done so. The issue may have been resolved earlier, had the claimant reasonably and specifically set out which students were given an award; when that should not have been the case as they did not submit any coursework. The Tribunal finds the claimant had raised a genuine issue about which ultimately he was proved correct; however, he allowed his increasing frustration to detract from his legitimate concern.

[59]The claimant relied upon this letter as a protected act for the purposes of his victimisation claim. The Tribunal finds that it is not a protected act. The claimant referred to Acas as a precursor to ‘the tribunal process’. There was no explicit reference to the EQA.

[60]A response was sent upon Mr Parker’s behalf on 2/5/2019 (page 1017). Mr Parker agreed to the claimant’s request to postpone the meeting and rearranged it for 10/5/2019 at 8:30am. Mr Parker said the meeting could discuss the claimant’s well-being, working relationships with colleagues and the Trust, the feedback from NCFE, his return to work and review the claimant’s probation. Mr Parker asked that the claimant confirm his attendance ‘as soon as possible’ and said to let him know if there was anything which could be done to ensure the claimant’s comfort at the meeting (page 1018).

[61]The letter concluded by saying: ‘if for any reason you are not able to attend, I will review the information available to me and advise you of any findings or decisions that may result, though naturally I am most keen to receive your input and thoughts, so I do look forward to seeing you.’

[62]On the 9/5/2019, the claimant requested that the meeting be put back to 9:30am so as to avoid him being on the bus with the pupils the following morning. The Tribunal finds this to be disingenuous of the claimant. The previous meeting arranged for 29/4/2019 was also arranged for 8:30am. If the claimant had had a genuine concern with the timing of the meeting, the Tribunal finds that he would have raised it much earlier; not the afternoon before the hearing. The Tribunal finds the claimant was seeking to put in place barriers to prevent the scheduled meeting taking place.

[63]Unsurprisingly, Mr Parker was unable to put the time of the meeting back at such short notice. Instead, in an email response sent some 41 minutes later, he proposed an earlier time of 8am (page 1024). This did not satisfy the claimant and on the following day (10/5/2019 at 7:23am) he said that he would still be on the bus with the pupils at that time in the morning. He asked if there were any other times that day they could meet (page 1023). The claimant criticised the respondent for not giving any thought to what the pupils would think having not seen him for nearly six months, should they see him when he arrived for the meeting. Whereas, this was not a point he had previously raised.

[64]In a response sent 17 minutes later (at 7:40am), the claimant was advised that Mr Parker had no other availability that day, but that he proposed covering the cost of a taxi to enable the claimant to attend by 8:30am that day. The claimant did not respond until 9:28am (page 1022). It was discourteous of the claimant not to promptly respond and to say that he either was or was not attending the meeting. The claimant referred to the ‘fraudulent and fabricated disciplinary process’, which had in fact found there was no case to answer. The claimant proposed rescheduling the meeting for 8.30am at another venue.

[65]In the claimant’s absence and without any indication from the claimant as to whether or not he intended to attend the meeting, Mr Parker did what he said he would do in his letter of the 2/5/2019; he proceeded in the claimant’s absence.

[66]In a letter dated 13/5/2019 Mr Parker said he was disappointed the claimant had resisted the efforts to make it possible to meet on the 10/5/2019 (page 1027). He said it was felt that the claimant’s view about meeting pupils was not reasonable and was not an acceptable reason for not attending the meeting. Mr Parker referred to the fact that the claimant was informed by letter dated 5/4/2019 that the outcome of the disciplinary hearing was that there was no case to answer. The claimant had been invited to attend a meeting to discuss his return to work on 24/4/2019 and it was pointed out that the claimant had emailed on the morning of 24/4/2019 to say that he was not comfortable about meeting Mr Murphy. Mr Parker pointed out that he had offered to meet with the claimant on 29/4/2019 and that during the afternoon of the 26/4/2019 the claimant requested a delay. That was granted and on 2/5/2019 Mr Parker proposed a meeting on 10/5/2019, which reflected the need for the meeting to proceed during a reasonable timescale and reflected his own limited availability. Mr Parker set out the chronology of what had taken place; none of which is in dispute. Mr Parker said that he had therefore taken the view that every effort had been made to make reasonable adjustments to ensure the claimant’s attendance.

[67]Mr Parker referred to the claimant’s several statements regarding Mr Murphy, Mrs Griffiths and the Trustees; he was however satisfied that the correct processes and procedures had been followed. Mr Parker acknowledged that the claimant had been certified as unfit for work due to ‘stress at work’ and that he had been hospitalised for gastroenteritis. He went onto say that the disciplinary process was delayed due to the claimant’s sickness absence, then the grievance; and that process was now complete and the outcome was no case to answer in respect of the disciplinary allegation. Mr Parker confirmed that Mr Murphy had notified the LADO who had confirmed the case would be closed and recorded as unsubstantiated. It was pointed out to the claimant that if he required any further information in that regard, to contact the LADO as the information was not available to the respondent4.

[68]Mr Parker went onto point out that there was an outstanding grievance against the claimant, which had been delayed due to the suspension, the claimant’s sickness and his own grievance. The claimant’s view on this grievance (that he had thrown away his predecessor’s personal belonging during her period of maternity leave) was that it should be dismissed out of hand. It is clear the claimant had an unrealistic sense of entitlement. He believed that his substantial grievance should be fully investigated and considered, which it was; yet he dismissed his colleague’s grievance as (claimant’s witness statement paragraph 119): 4 The claimant took issue that the LADO intended to record the allegation as unsubstantiated, however, it was not clear to the Tribunal whether or not he had, as directed by Mr Parker, taken the issue up directly with her; rather than it being a complaint against the respondent. ‘… absurd. Her grievance complained that I had moved her mugs whilst she was on maternity leave.’

[69]In dealing with the exam issue, which had excised the claimant, Mr Parker recorded that NCFE had completed their investigation and the invalid certificates were as a result of a misunderstanding and the matter was now closed. The Tribunal finds that to have been the case and there was no conspiracy or cover up as alleged by the claimant. Mr Parker then referred to the claimant’s depth of feeling expressed in his letter of the 26/4/2019 and whilst not doubting the strength of belief the claimant had, said (page 1029): ‘… I cannot see how we can resolve the current position as I and my Trustees who heard your grievance do not agree with your interpretation of event, nor are they supported by the examination board.’ Mr Parker continued that the claimant had made it clear, from his point of view, there was a complete breakdown of trust and confidence in the senior leaders at the school and the respondent.

[70]As per Mr Murphy’s letter of 5/4/2019 the claimant’s probationary period had been extended and: ‘… given the above conclusions relating to the apparent irreparability of any kind of working relationship, I can only conclude therefore that we are unable to move forward.’

[71]Mr Parker’s conclusion was to terminate the contract and to pay one week’s notice pay and accrued holiday pay. The claimant was informed of his right of appeal against that decision.

[72]The Tribunal finds that the claimant had demonstrated in his correspondence that from his point of view, the relationship had broken down and he did not have any trust and confidence in both the senior leadership team and the Trustees of the respondent; he had said so numerous times.

[73]The respondent had taken suitable steps to attempt to repair that relationship, but was on each and every occasion rebuffed by the claimant. When the respondent took the steps the claimant said he wanted it to take, the claimant changed his stance. The claimant was manipulating the respondent. Mr Parker, quite rightly the Tribunal finds, decide that enough was enough (to use the claimant’s own words) and decided there was nothing more to be gained by extending the relationship and so brought it to an end.

[74]The respondent was criticised for not waiting another week and rescheduling the meeting. Mr Murphy and then Mr Parker had tried to meet with the claimant since the 5/4/2019 (albeit with the Easter holiday and Mr Murphy’s own availability, the first available date to meet was the 24/4/2019). It was by now two weeks to the summer half-term holiday. The Tribunal finds that Mr Parker had no confidence that if he were to rearrange the meeting again, that the claimant would attend. The Tribunal accepts Mr Parker’s explanation that he needed to terminate the claimant’s contract, in order to be able to recruit a replacement Head of Music to start in September.

[75]The Tribunal finds that the reason for the termination of the claimant’s employment was Mr Parker’s view that the relationship had irretrievably broken down from the claimant’s viewpoint, with the result that there was no future in it. That then led to Mr Parker’s decision that a new Head of Music needed to be recruited. It should also be remembered that the original Head of Music had taken maternity leave and decided not to return and her replacement then also took maternity leave. The result was three Heads of Music in as many years and a failure to deliver (apart from the five students who worked hard to produce some coursework after the examinations had ended) coursework for the NCFE award5. The claimant’s employment was not terminated as he had failed to satisfactorily complete the probation period; it was terminated as on his own case, there was no trust and confidence between him and members of the senior leadership team and some Trustees.

[76]The claimant exercised his right of appeal and attended a meeting on 13/6/2019 before three Trustees. The outcome was dated 17/6/2019 and the appeal panel upheld Mr Parker’s decision to dismiss the claimant (page 1091).

[77]On the 9/5/2019 the claimant obtained a GP note which stated that he had the condition of depressive disorder and that he may be fit for work, taking into account the advice, which was that he should not ‘at present’ return to frontline teaching (page 1033). That advice was valid for a period of two months. Mr Parker was not aware of this advice at the time he took the decision to dismiss the claimant. The claimant however sent the GP note to the respondent on 15/5/2019 (page 1031). The claimant said that he discussed this diagnosis at the appeal hearing and that he referred to having had a similar diagnosis some years before. It was established that the claimant had not previously referred to any previous diagnosis of depressive disorder and said that even if he had been asked to, for example, fill in a pre-employment health questionnaire, he would not have declared the earlier episode of depression. 5 It is accepted by the Tribunal that this failure was not the claimant’s responsibility. He took over a cohort in circumstances where the failing had previously been identified and it should be made clear that the liability was not his.

[78]The claimant claims various policies were contractual and that in not adhering to them, there was a breach of contract in that the claimant would have been employed for a longer period of time. In closing submissions, the claimant said that he relied solely on the probation policy. The Tribunal finds difficulty with that argument. Whether or not the probationary policy was contractual, it appears it was the claimant’s argument that he should not be on probation. His argument, as far as the Tribunal understands it, is that (along with his wrongful dismissal claim) as he was on probation, he was only entitled to a week’s notice. Had he not been on probation or had it been confirmed that he had successfully passed his probation period, he would have been entitled to notice which would have expired on the 31/8/2019.

[79]The facts are that the claimant was employed under a fixed term contract from 16/4/2018 to 25/5/2018 as a fixed term teacher of music (page 170). That contract provided for a probation period of six months. The respondent reserved the right to extend that period by a further six months. The notice period was one week and the respondent reserved the right to disapply its full contractual capability and disciplinary procedures during a probation period.

[80]A second contract was issued (page 273). It was not a fixed term contract. It gave the start date as 25/5/2018. That contract stated that the probation period started on 16/4/2018. The terms of the probation period were the same as the previous contract. On 25/9/2018 there was a three month probation review meeting (page 468). That meeting resulted in a further review meeting on 18/10/2018 but also extended the probation period until 16/4/2019. The respondent was entitled to do this under the contract and policy.

[81]The claimant takes issue that the three month review should have taken place in mid-July 2018, not in September. That may be correct in terms of dates, however, the respondent had the discretion to extend any probation period. The claimant had not been told that he had successfully completed a probation period. Mr Boughton-Reynolds was aware that due to his own commitments during the summer term 2018 (ill health and caring responsibilities for his mother) and the busy exam period, plus the coursework issue; he had not properly set the claimant targets or reviewed his performance. The difference to the claimant was, had the three month review taken place in July 2018 and had it been confirmed that he had successfully completed the probation period, that he would no longer be on a notice period of one week. The Tribunal finds in any event that would not have happened. The probationary period was initially for six months, not three. A review was therefore due by the 16/10/2018. The three month review took place, albeit late, on 25/9/2018. At that September meeting, the probation period was in any event extended to 16/4/2019; the respondent had therefore exercised its discretion to extend the first six month period for a second six months, giving at that time, a probationary period of 12 months.

[82]Due to the claimant’s suspension on 20/11/2018, he was not performing his role as Head of Music. The respondent could not therefore assess him in his role under the probation period. The respondent had had some concerns about the claimant’s management abilities as subject lead (there was no concerns about the claimant’s teaching abilities). As such, when he contacted the claimant on 5/4/2019 to initiate a discussion about returning to work, Mr Murphy confirmed to the claimant, that as he had not been in work, the probation period would be extended to 31/8/2019 (page 997). Although this is more then 12 calendar months from the 16/4/2018 and goes beyond the original 12 month period the claimant was given of 16/4/2019; it represented a period of performing the role of Head of Music during which the respondent could assess the claimant’s abilities. The Tribunal finds that both under the contract and the respondent’s probation policy, there was the discretion for the respondent to take this course of action. For the sake of completeness, the Tribunal does not find that the probationary policy was contractual.

[83]There was no wrongful dismissal. The claimant was still within the probation period and therefore, he was entitled to a week’s notice. He was paid in lieu of a week’s pay.

[84]The claimant alleges the respondent failed to inform him of the right to be accompanied to the meeting on the 10/5/2019. He says that is a breach of s.10 Employment Relations Act 1999. It is correct to say that the respondent did not inform the claimant of the right to be accompanied at that meeting. It is also correct to say that the meeting was not intended to be a meeting of a disciplinary or grievance nature. It was intended to be a meeting to discuss generally the matters Mr Parker referred to in his letter of 2/5/2019 (page 1018). The Tribunal has no doubt in finding that had the claimant requested to be accompanied to that meeting, irrespective of the fact it was not a meeting with fell within the remit of s.10, the respondent would have permitted it. For example, a Trustee (VC) attended the disciplinary meeting as an observer.

[85]Even if the claimant were relying upon the respondent’s Conduct at Formal Hearings policy (page 92) which states: ‘Staff have the right to be accompanied at all formal hearings by a trade union or work colleague of their choice.’ That in and of itself, does not give rise to a right to be informed of the right to be accompanied under the policy. The claimant was as capable as any other employee to read the policy prior to any meeting and to ask to exercise any right given under the policy and indeed he exercised his right to be accompanied by his Trade Union representative at the dismissal appeal hearing. He did not do so in respect of this meeting and there was no refusal of any statutory or contractual right by the respondent.

The Law

[86]The claimant claims the protected characteristic of disability due to ‘depressive disorder’ under s.6 of the EQA.

[87]The prohibited conduct of which he complains is s. 15 – discrimination arising from disability:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[88]The complaint is of dismissal under s. 39 (1)(c) EQA.

[89]The claimant also claims that he was victimised contrary to s. 27 EQA:(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.

[90]Clearly, there has to be a protected act for an allegation of victimisation to follow.

[91]The claimant pleads that he has made a protected disclosure under s. 43B of the ERA and he was automatically unfairly dismissed per s. 103A ERA. 43B Disclosures qualifying for protection. (1) In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. 47B Protected disclosures. (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a) by another worker of W's employer in the course of that other worker's employment, or (b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. 103A Protected disclosure An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[92]In Kilraine v London Borough of Wandsworth

[2018] ICR 1850

the Court of Appeal said that the word ‘information’ in S.43B(1) ERA has to be read with the qualifying phrase ‘tends to show’; the worker must reasonably believe that the information ‘tends to show’ that one of the relevant failures has occurred, is occurring or is likely to occur. Accordingly, for a statement or disclosure to be a qualifying disclosure, it must have sufficient factual content to be capable of tending to show one of the matters listed in S.43B(1)(a)–(f) ERA. An example was given of a hospital worker informing their employer that sharps had been left lying around on a hospital ward. If instead the worker had brought their manager to the ward and pointed to the abandoned sharps, and then said ‘you are not complying with health and safety requirements’, the oral statement would derive force from the context in which it was made and would constitute a qualifying disclosure. The statement would clearly have been made with reference to the factual matters being indicated by the worker at the time.

[93]Section 43B(1) ERA requires that, in order for any disclosure to qualify for protection, the person making it must have a ‘reasonable belief’ that the disclosure ‘is made in the public interest’. That amendment was made to avoid the use of the protected disclosure provisions in private employment disputes that do not engage the public interest.

[94]In Panayiotou v Chief Constable of Hampshire Police 2014 ICR D23 the EAT upheld a decision that the reason for dismissal and detriments was not the fact that Mr Panayiotou made protected disclosures; but the manner in which he pursued his complaints. It was found that he would ‘campaign relentlessly’ if he was dissatisfied with the action taken by his employer following his disclosures and would strive to ensure that all complaints were dealt with in the way he considered appropriate. As a result, the employer had to devote a great deal of management time to responding to correspondence and complaints. In essence, he had become ‘completely unmanageable’ and this led to his dismissal. It was held that it was the combination of his long-term absence from work and the way in which he pursued his various complaints which led to his dismissal and his claims under s.47B and s.103A failed.

[95]The burden of proof in s.136 EQA provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person contravened the provision concerned, the court must hold that the contravention occurred.

[96]The claimant also claims there has been a breach of s.10 of the Employment Relations Act 1999,which provides: (1) This section applies where a worker— (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b) reasonably requests to be accompanied at the hearing.

Conclusions

[97]The respondent did not have knowledge of the claimant’s condition of depressive disorder at the relevant time when Mr Parker took the decision to dismiss the claimant. Furthermore, the claimant has not demonstrated evidentially on the balance of probabilities that the ‘something arising’ (the tone of the correspondence on 24/4/2019 and 26/4/2019) arose in consequence of the depressive disorder. The claimant was clearly becoming frustrated at what he perceived to be the respondent ignoring his concerns. There is nothing to say that the tone of the correspondence did not arise as a result of that frustration or from the lack of action from the respondent.

[98]The claimant had earlier in 2019, the Tribunal found, forcefully set out his views and made strong allegations, for example of ‘manipulation’ in his grievance. In light of that, the Tribunal does not find that the tone of the claimant’s correspondence was something arising at the relevant time from a descent into a depressive disorder which was later diagnosed on 9/5/2019. He had been making vehement allegations much earlier. Furthermore, the respondent could only become aware that it was a reoccurrence of an earlier condition from 2013, at the appeal meeting on 13/6/2019. Mr Parker had made the decision to dismiss on the 13/5/2019 and was not on notice of the condition.

[99]The statute requires the unfavourable treatment to be ‘because of something’. Provided that the ‘something’ was an effective cause of the unfavourable treatment (it need not be the sole or main cause), the causal test will be established. That was simply not the case here and the claimant did not satisfy the burden to lead the Tribunal to conclude that the something arising (the tone of the emails), arose because of his condition. Furthermore, the unfavourable treatment (the dismissal) did not arise because of the tone of those emails. The Tribunal found the claimant was dismissed due to the breakdown, on his part, of the relationship with the senior leadership team and the Trustees. That breakdown dated back to and crystallised with the claimant’s grievance on 21/1/2019. The claimant was entitled of course to raise a grievance. What he was not entitled to do was to go about raising the grievance in any manner he sought fit.

[100]The claim under s. 15 EQA fails.

[101]There was no victimisation under the EQA. The claimant raised a grievance on 21/1/2019. Mrs Griffiths as CEO decided the matter and provided her outcome on 25/2/2019. The claimant appealed that outcome and accordingly, the Trustees heard the appeal and Mrs Griffiths presented her/the respondent’s case. There was no detriment to the claimant in Mrs Griffiths presenting the respondent’s case. Furthermore, Mrs Griffiths was not presenting the respondent’s case because the claimant had referenced a philosophical belief under s. 10 EQA (in fact in evidence Mrs Griffiths said she agreed with the claimant’s view of the integrity of the British education system); she was presenting the respondent’s case for the benefit of the appeal panel deciding the claimant’s appeal.

[102]The Tribunal concludes the claimant did not do a protected act on 26/4/2019 and therefore, there can be no act of victimisation or detriment as a result (paragraph 11 of the list of issues).

[103]The respondent conceded (paragraph XLVIIe respondent’s skeleton argument) the claimant did make protected disclosures on the 21/1/2019 and 3/3/2019 (paragraph 14 (e) and (f) in the list of issues). In respect of s. 43B (1) (a)-(f) ERA, it is not clear what form of wrongdoing the respondent accepts the claimant had in mind was being breached. The Tribunal concludes that the respondent accepted in submissions that the relevant section was 43B (1) (b) ERA failing to comply with a legal obligation; namely the respondent’s obligation to NCFE and not to misrepresent that coursework had been completed and assessed, when it had not. This applies to all the disclosures which the Tribunal found were protected.

[104]The Tribunal also found that the disclosures on: 13/9/2018 (on two separate occasions); 18/9/2018; and 11/3/2019 (paragraph 14 (a), (b), (c) and (g) in the list of issues) were protected.

[105]Furthermore, it is accepted that the protected disclosures were made in the public interest. The claimant believed there was a form of exam fraud being perpetuated. There was ultimately no fraud or deliberate wrong doing. There was a misunderstanding, which was explained that NCFE thought the coursework provided for second marking (to establish if the internal marking was consistent with NCFE’s external marking) was a sample. As NCFE agreed with the marks, it awarded certificates to all students. NCFE did not appreciate that four students had not produced any coursework and therefore, could not qualify for an award. The claimant knew that no award should be made if there was no coursework and also knew that four students had not provided any coursework. Clearly, a concern of this nature was in the public interest; that exam integrity should be maintained.

[106]The claimant was not however dismissed because he had made protected disclosures. He was dismissed because on his own case, he no longer trusted or had any confidence in, in particular: Mrs Griffiths the CEO of the respondent; Mr Murphy the headteacher, Mr BoughtonReynolds his line manager and Mr Parker the chair of the Trustees. Not only that, he had also disparaged other members of the senior leadership team and other Trustees. He was also making wild and unsubstantiated allegations. Due to the nature of his allegations and against whom they were directed, the respondent had no choice but to end the relationship and to terminate the claimant’s employment.

[107]There was no evidence that the claimant ever accepted there was a misunderstanding, rather than a conspiracy by the members of staff at the respondent against whom he made his allegations. The Tribunal concludes that there must have come a point when, even if he did not agree, the claimant should have accepted based upon the facts which had been presented, that there was an innocent explanation for the error. That he could not accept that view was fatal to any ongoing relationship. The Tribunal acknowledges the distinction between the fact of the protected disclosures and the manner of complaining. There was no future in the relationship, Mr Parker was entitled to bring it to an end and the principal reason for his decision was the loss, by the claimant, of trust and confidence in the senior staff and Trustees.

[108]The probation policy was not contractual and it was not breached. The respondent acted within the parameters of the policy and within its margin of discretion. It was immaterial that the claimant did not agree when and how the probation period was extended.

[109]The claimant was not wrongfully dismissed. His contract was terminated in accordance with the notice period of one week and he was paid in lieu of notice.

[110]There is no right to be advised of the right to be accompanied. There was no breach of s.10 Employment Relations Act 1999. There is a right to be accompanied, which the claimant exercised. There was no dismissal or disciplinary meeting held by Mr Parker at all. The result was there was no meeting which came within the remit of s.10.

[111]The claimant’s claims fail and are dismissed. The potential remedy hearing listed for 20/5/2022 will be vacated unless there is any application to the contrary within 14 days. 2/12/2021