181.
By letter to the Respondent dated 9 September 2010 the Claimant wrote a letter
of resignation to Pat Petch, pages 1577-1580. The Claimant's letter of
resignation included the following
Your
failure to demonstrate a balanced and fair approach to the preparation to the
hearing planned for May 2010 raised huge doubts and these have not been
alleviated. For example why you spent 18 months conducting an investigation,
you gave me only 10 days to respond to .:5 ring binders of evidence and prepare
a defence, at a time when I was suffering from depression. You also reversed
the order, intending to deal with the non Penny Bermingham allegations first,
where that was said to be the basis of my suspension You failed to respond to
my request for an independent disciplinary panel to be appointed I still hope
that once I have pointed out some of the obvious flaws in the allegations, some
form of common sense would prevail.
However,
any last hope that I would be treated with fairness was lost completely when I
was finally able to look at some of the evidence and speak to some of the
witnesses.
As
you know from your occupational health doctor and his extensive reports, the
treatment I have received from my employer has had a detrimental and harmful
impact on my mental health. You will be aware I was suffering from anxiety and
depression and thus had to seek support from my GP and others. Though I
continue to suffer psychological injuries this support has made some limited
improvement to my mental health. As a result of this slight improvement, I have
finally been able to consider some of the extensive documentation you submitted
as part of your disciplinary evidence. Despite taking receipt of five folders
from May 2010 when these were delivered to Collyer Bristow the severity of my
depression meant I lacked the strength and capacity to view the material
previously.
I
was deeply shocked by the contents of your files and found these demonstrated a
totally biased and prejudiced approach had been taken towards me throughout
your investigations and proceedings. My recent discussions with witnesses and a
review of the documentation has also provided evidence of unfair treatment.
For example, I have discovered that there was
a:-
1)
Failure to provide both witnesses and myself with specific detailed
allegations of what I was accused of.
2)
Failure to clarify the division of responsibility between other
individuals and bodies who had overlapping responsibilities and duties for the
matters under consideration.
3)
The inclusion of an allegation purportedly made by John Parr which he
had indicated in writing that he did not want to make.
4)
Compilation of witness evidence from people who had never met me, nor
been involved in the school at the time when I was responsible for the
management of the school, which contrast with the failure to interview key
witnesses e.g. members of the school's governing body.
5)
Disregard crucial witness evidence from friends of Penny Bermingham
which undermine the integrity of her evidence. There was a failure to
investigate this evidence independently and in a prompt and confidential
manner.
6)
Continuing repetition of allegations which relate to the period when I
was undergoing chemotherapy treatment without any attempt to find out if my
illness might have affected me.
7)
Presentation of written evidence, particularly relating to school's
finances in a partial incomplete manner and without corroboration which leads
to a distorted picture.
8)
Failure to act on allegations of bullying behaviour by Penny Bermingham
towards myself and others and to reconsider your judgments against me in the
light of revelations, which demonstrates biased and a lack of even handiness.
9)
Procuring the destruction of my files and a fraud investigation into how
that came about. The files were contained in seven filing cabinets and there
appears to be little or nothing done to question those who were known to be
responsible for taking the decision to clear the office.
10)
Failure to carry out the investigations in a prompt and ordered way in order to
secure an accurate account of events and confidentiality within the
investigation. It is now nearly two years since my suspension. The reasons for
suspension have changed without me being informed.
11)
Failure to act in an even handed way by asking witnesses questions about Penny
Bermingham's behaviour towards me and instead only focussing on the converse.
This was in spite of assurances from the Chief Executive last year that my
grievances against Penny would be investigated as part of this process.
12) Failure to properly and accurately set out
minutes of witness meetings which reflected the true nature and content of what
people had said. In many cases witnesses said criticism of Penny's behaviour
which were left out or played down and the positive comments about me were
rewritten to convey a negative meaning. Furthermore all witnesses waited months
for minutes to be sent only to find that they were inaccurate.
In
addition to the above having experienced excessive and unjust treatment from
both the IEB and Lambeth council for other two years and having been isolated
out of the workplace for nearly two years, I remain worried about my health.
Having endured bullying and harassment from my employer for two years, at a
time when I was recovering from cancer, I had hoped that a more reasonable
approached would be adopted. I can no longer continue with this situation, as I
believe it poses significant risks to my health and well-being.
In outline, some of the core factors have
been:
i)
suspending me in the first place and then failing at any time to review
the need for suspension despite there being specific reasons to review.
ii)
repeated failures to engage your obligations with reasonable adjustments
in relation to the application of performance and disciplinary procedures.
iii)
an unnecessary and extended suspension;
iv) failure to provide access to my person
management files and records which I required to defend myself against your
allegations;
v)
failure to properly investigate the circumstances surrounding the
destruction of my personal files and property from my office and having
destroyed them in the first place;
vi) a failure to prevent me from becoming
isolated from the work environment. Since November 2009 no one from the LEA or
IEB has spoken to me or met with me.
Henry Fawcett Primary School was extremely
important to me both on a personal and professional level. I was hugely
committed to the pupils, their parents and the talented staff that taught under
me. Whatever judgments you have made, the fact remains the school was
successful under my management. As you know my leadership and management was
praised by two Ofsted inspections and described as "good" and during
the last year I achieved 74% in the SATS results. While achievement was
important to me I took immense satisfaction from the fact that I was able to
work with my staff to create a happy and secure environment for children at Henry
Fawcett."
182. The Claimant presented his second claim
form to the Tribunal complaining of constructive unfair dismissal on 9
September, 2010.
Submissions
183. The Tribunal heard submission from Ms
Fraser-Butlin on behalf of the Respondent and from the Claimant. Both the
Claimant and Ms Fraser-Butlin on behalf of the Respondent supplemented their
oral submissions with written submissions. The parties' submissions are not
repeated in these reasons. The Tribunal was also provided by Ms Fraser-Butlin
with a lever arch file of authorities and the Claimant also referred the
Tribunal to authorities in his submission. The Tribunal considered all the
authorities to which we were referred.
The Law
Disability Discrimination
184. There was no issue that the Claimant's
condition of cancer meant that he was a disabled person for the purposes of the
DDA 1995. Ms Fraser-Butlin submitted that following the 'all clear' when the
Claimant returned to work he should be treated as a person with a past
disability. Where a Claimant has a past disability there is no duty on the
Respondent to make reasonable adjustments However, in any event, even where a
Claimant has a disability, the Claimant has to establish a particular
disadvantage caused by that disability for the duty on the Respondent employer
to take reasonable adjustments to arise.
185.
The statutory framework is set out as follows
Section
3A of Disability Discrimination Act 1995
(1) For the purposes of this Part, a person
also discriminates against a disabled person if—
(a) for a reason which relates to the disabled
person's disability, he treats him less favourably than he treats or would
treat others to whom that reason does not or would not apply, and
(b) he cannot show that the treatment in
question is justified.
(5) A person directly discriminates against a
disabled person if, on the ground of the disabled person's disability, he
treats the disabled person less favourably than he treats or would treats
person not having that particular disability whose relevant circumstances,
including his abilities, are the same as, or not materially different from,
those of the disabled person
186. Following London Borough of Lewisham v
Malcolm [2008J IRLR 700 HL the appropriate comparator in cases of direct and
disability related discrimination are the same namely the comparator's
circumstances is someone whose circumstances are the same or not materially
different from that of the Claimant.
187.
Section 4A of the Act provides.-
(1) Where -
(a) a provision, criterion or practice applied
by or on behalf of an employer, or
(b) any physical feature of premises occupied
by the employer, places the disabled person concerned at a substantial
disadvantage in comparison with persons who are not disabled, it is the duty of
the employer to take such steps as it is reasonable, in all the circumstances
of the case, for him to have to take in order to prevent the provision,
criterion or practice, or feature, having that effect.
188. Section 3B of the Act provides
(1) For the purposes of this Part, a person
subjects a disabled person to harassment where, for a reason which relates to
the disabled person's disability, he engages in unwanted conduct which has the
purpose or effect of-
(a)
violating the disabled person's dignity, or
(b) creating an intimidating, hostile,
degrading, humiliating or offensive environment for him.
(2) Conduct shall be regarded as having the
effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard
to all the circumstances, including In particular the perception of the
disabled person, it should reasonably be considered as having that
effect."
189. Section 17A of the DDA contains burden of
proof provisions, namely
(IC) Where, on the hearing of a complaint
under subsection(1), the complainant proves facts from which the Tribunal
could, apart from this subsection that the respondent has acted in a way which
is unlawful under this Part, the tribunal shall uphold the complaint unless the
respondent proves that he did not so act.
190.
Section 55 of the Act contains provisions relating to victimisation and
provides that
a person ("A") discriminates against
another person ("B") if -
(a) he treats B less favourably than he treats
or would treat another person whose circumstances are the same as B and
(b)
he does so for a reason mentioned in sub section(2).
Subsection (2) lists a number of reasons,
including alleging that A (the Respondent) has contravened the DDA. It is
conceded that the Claimant's grievance dated 27 February 2009 amounts to a
protected act.
Unfair
constructive dismissal
191.
Section 95(1)(c) of the Employment Rights Act 1996 provides:
(1)
For the purposes of this Part an employee is dismissed by his employer if (and
only if) -
...(c)
the employee terminates the contract under which he is employed (with or
without notice) in circumstances in which he is entitled to terminate it
without notice by reason of the employer's conduct.
192.
To found a complaint of constructive dismissal the Claimant has to show that
his resignation has been caused or justified by a fundamental or repudiatory
breach of his contract of employment by the Respondent employer, namely a
breach which goes the very root of the contract between them; in other words
conduct on the part of the employer which evidences the employer treating the
contract of employment as discharged. In the circumstances of this case the
Claimant alleged that the Respondent's conduct involved breaches of the term of
trust and confidence implied into his contract of employment.
193.
In Malik —v- BCCI [1997] ICR 606, HL, the implied term of trust and confidence
was defined as:
The employer shall not, without reasonable and
proper cause, conduct itself in a manner calculated and likely to destroy or
seriously damage the relationship of trust and confidence between employer and
employee.
194. The Claimant also contended that the
alleged discriminatory conduct of the Respondent involved repudiatory breaches
of his contract of employment
Conclusions
195. The Tribunal reached its conclusions
having regard to the totality of the evidence, to the submissions of Ms
Fraser-Butlin on behalf of the Respondent and of the Claimant and to the
relevant law.
Constructive
unfair dismissal
196. Clause 6 of the Management Guidance to
the Respondent's disciplinary procedure provided the following:
"6.1 Head Teachers conduct in relation to
how the disciplinary procedure, investigation or suspension is handled must be
such as not to damage the relationship of confidence and trust which exists
between employer and employee.
6.2 To discharge their duties and avoid stress
claims Head Teachers should:
Act decisively
• Head Teachers should project, manage each
situation, set out a realistic action plan and timetable at the outset and
stick to it. The plan should incorporate the appropriate sections of the
Disciplinary and other relevant Procedures, so the processes are not flawed for
want of procedure. procrastination and indecisive management when dealing with
these issues are more likely to give rise to stress and psychological injury
claims.
•
Where possible avoid delay
Investigations, suspension and disciplinary
proceedings can be stressful for employees, this is particularly true when the
employee has been suspended and effectively withdrawn from the workplace. Delay
in these circumstances is likely to exacerbate the stress felt by the employee.
It is Important therefore that the resolution process is as streamlined as
possible.
• Stay connected with the employee
Keeping
in regular contact, and where this unexpected delay in the process, inform the
employee so its expectations are managed. If investigations become protracted
regular contact with the individuals should be maintained by the Head Teacher
and/or human resources and the employee should be notified as soon as
practicable once the investigations have been completed.
•
Manage the situation sensitively
While delays should be avoided, so should over
enthusiastic management. Keep all employees concerned involved in the process
by giving regular updates."
197. Under clause 8 headed "disciplinary
investigation” clause 8.3 provided the following:
In an informal investigation the following
steps should be taken:
• Obtain as much relevant information as
possible: what happened, when and where, interview the complainant and any
witness and obtain written statements where relevant, which should be signed
and dated by the interviewee and a copy given to the interviewee. Notes should
be taken of all interviews and these should be kept in case they are required
by the employee or the panel at any hearing.
The
person under investigation should be invited to attend for an investigatory
meeting at the earliest opportunity, as should all witnesses to an incident or
those that can shed light on the event."
198. Clause 8.5 provided the following
"The purpose of the investigation is to
establish all the relevant facts and evidence which may lead to disciplinary
action being taken by the Head Teacher e.g. warnings, which will need to be
considered at a formal disciplinary hearing In carrying out the investigation,
it should be understood the investigation any interviews conducted with the
employee concerned in order to establish the relevant facts are not a formal
disciplinary hearing.
199. Clause 8.9 provided the following:
"Care should be taken in preparing any
charges if formal action is to be taken. Each charge shall be well argued and
researched. It is also advisable to link any charge of a specific breach of a
disciplinary rule. Care should also be taken to keep charges simple. Governing
bodies and Head Teachers should seek to identify the actual allegation other
than simply claiming a breach of rule "x" may not be reasonable and
may therefore result in postponements. Ideally the Head Teacher should state
the employer charged with doing X on Y date (S in breach of Rule Z.)
200. The Tribunal throughout the hearing
expressed its concerns about the delay in the entire disciplinary process
involving the Claimant. The Claimant had been suspended at the end of November
2008 but had not been given any details of the allegations against him apart
from five bulleted allegations in his suspension letter dated 28 November 2008,
pages 414 —415.
201. It was not until 18 December 2008 that
the Claimant was provided with any information relating to the disciplinary
process namely that the investigating officers would be Barry Gilhooly and Mary
White, Human Resources Consultant.
202.
The Tribunal considered the choice of Barry Gilhooly as the investigation
officer in circumstances when he was about to go on extended leave to be
unacceptable in circumstances of a suspension. The Tribunal was driven to the
conclusion that no priority was given by the Respondent to the Claimant's
position and to the duty of care it owed to the Claimant as outlined in clause
6 of the Management guidance to its disciplinary procedure. We found that no
consideration was given to the inevitable delay that the appointment of Mr
Gilhooly would cause to the investigatory process.
203. It was not until Mary White's letter to
the Claimant dated 8 January 2009 that the Claimant was provided with any
particulars of the allegations against the Claimant. We noted that such
allegations included John Parr's allegations of 21 November 2008 which he had
expressly requested should not be used against the Claimant.
204.
We found that the whole process undertaken by Barry Gilhooly was flawed and
that it was as wide ranging as possible to amass as much negative evidence
against the Claimant as possible. On several occasions during the hearing the
Tribunal enquired why the investigation had taken so long in circumstances of
an allegation by one teacher against another. The Tribunal never received a
satisfactory explanation for the delay or why in circumstances of an allegation
of bullying and harassment against Penny Bermingham, Witnesses who had not been
directly involved with the allegations, were asked question relating to the Claimant's
management style and on some occasions whether they had been bullied by the
Claimant.
205.
We noted that two of the potential witnesses most closely involved with Penny
Bermingham namely the Assistant Head Teacher, Emma Bilsdon was not interviewed
until 9 November 2009, almost a year after the Claimant's suspension. We found
that Mr Gilhooly's investigation was one sided and judgmental in its approach
as evidenced in his findings. We noted that any negative observations about
Penny Bermingham were explained away by him without any of the matters being
put to Penny Bermingham.
206. The nature of the investigation and the
delays we conclude evidenced an intention on the part of the Respondent to
treat the Claimant's contract of employment as discharged, in circumstances
where we found that the Respondent failed to have any regard to the
relationship of trust and confidence which should exist between employer and
employee. Whatever the concerns about the Claimant's management of the school,
the Claimant was entitled to be treated in a manner consistent with his rights
as an employee and to be treated fairly throughout the investigatory process.
This we conclude the Respondent wholly failed to achieve.
207.
Sitting as an industrial jury we bore in mind that a number of members of staff
and other individuals connected with the school might well have had a poor
opinion of the Claimant even to the point of disliking him and finding him
uncongenial. However even taking account of the dynamics of working and professional
relationships, which might well give rise to feelings of antagonism, we were
nevertheless disturbed about the level of hostility expressed by some of the
witnesses against the Claimant during the disciplinary process. We found that
there was an unjustifiable acceptance that Penny Bermingham's allegations
against the Claimant were well founded even before the conclusion of the
investigation process. Barry Gilhooly clearly accepted Penny Bermingham's
allegations and adopted an approach which we found was motivated by an
endeavour to obtain as much material which was damaging to the Claimant as
possible.
208. This approach was also reflected in the
second disciplinary investigation which was not concerned with allegations of
bullying, but with financial and other alleged mismanagement by the Claimant.
Thus John -Marr who was interviewed about health and safety and financial
management was asked in terms about whether it was true that the Claimant had
bullied and harassed him.
209. The Tribunal concluded that Matt Britt's
conduct in relation to the clearing of the Claimant's office was inexcusable.
We were unable to accept his evidence that only material which was old and
which he considered had no relevance was destroyed and we accepted the evidence
of John Marr that a large amount of material was bagged for removal. Matt Britt
gave no explanation as to why the Claimant had not been consulted before he
took steps to clear the office particularly in circumstances where the Claimant
had occupied the office for a number of years. Matt Britt was forced to accept
in cross examination that, with hindsight, he should have done.
210.
The Tribunal concluded that the Claimant's office was cleared in circumstances
of the expectation that the Claimant would not be returning to the school. We
found Matt Britt had said to John Marr, who had queried Matt Britt’s
instruction that he wanted to clear the office, that the Claimant was not
coming back. Again we conclude that such conduct was not consistent with the
relationship of trust and confidence which should exist between employer and
employee.
211
We did not consider that the Respondent was genuinely motivated by
considerations of policy, when it decided to treat the Claimant's grievances
against Penny Bermingham as a complaint, the effect of which was justified by
the Respondent as delaying the disciplinary investigation process The
Claimant's grievances against Local Authority officers did not, we consider,
impact upon the allegations by Penny Bermingham of bullying and harassment by
the Claimant.
212.
As it happened the Claimant's allegations against Penny Bermingham were never
properly investigated and Penny Bermingham herself was unaware that the
Claimant had raised a grievance against her. Penny Bermingham, of course, had
been interviewed on 29 January 2009 a month before the Claimant had raised his
grievance and accordingly was never interviewed about the matter. We accept the
Claimant's submission that he was treated differently from Penny Bermingham.
The grievance process did not appear to require that a disciplinary
investigatory process should be held up until after the conclusion of a
grievance. In any event the Tribunal noted that Mr Gilhooly himself stated that
he viewed the Penny Bermingham allegations against the Claimant and the
Claimant's grievance about Penny Bermingham as different sides of the same
coin.
213.
Ms Fraser-Butlin submitted that the Tribunal must consider what would have
happened if the Claimant had not resigned and what the percentage likelihood is
that he would have been dismissed in any event
214. Ms Fraser Butlin referred the Tribunal to
paragraph 2551 of Harveys, namely:
Where evidence is adduced as to what would
have happened had proper procedures been complied with, there are a number of
potential findings a Tribunal could make In some cases it may be clear that the
employee would have been retained if proper procedures had been adopted. In
such cases the full compensatory award should be made. In others, the Tribunal
may conclude that dismissal would have include in any event this may result in
a small additional compensatory award only to take account of any additional
period for which the employee would have been employed had the proper
procedures been carried out into effect (CEG Mining supplies (Longwall) Ltd v
Baker (1988) ICR 676). In other circumstances it may be impossible to make a
determination one way or another. It is in those cases that the (Employment)
Tribunal must make a percentage assessment of the likelihood that the employee
would have been retained, as suggested in Sillifant v Powell Duffryn Timber
Ltd."
215.
The Tribunal endeavoured to evaluate what the outcome of a fair hearing might
have achieved. First we considered that any reasonable employer would have separated
the Penny Bermingham's allegations from the allegations of mismanagement,
financial and otherwise.
216. Secondly we had concerns that the
allegations of mismanagement involved matters which might more appropriately
have been dealt with as issues of capability rather than issues of misconduct.
This employer plainly failed to even consider that distinction. We noted that
the Respondent had commissioned reports about its concerns namely the report
into the TOIL issues which was dated 16 March 2009 in relation to the CRB
issues 'without engaging the Claimant and it was not until 2 July 2009 that the
Claimant was informed that all the matters of concern, which had been
considered for some time would be investigated.
217.
The Claimant himself, as we found, was very significantly disadvantaged by the
fact that many of his records had been destroyed. We were unable to assess what
a rigorous investigation of any school in the Respondent borough might have
revealed, and whether the situation was unique to the Henry Fawcett school.
218. In his evidence to the Tribunal Mr Jethwa
stated that the Henry Fawcett School was one of a handful of schools, namely
five or six schools, being in deficit. We found it difficult to assess the
extent to which the Claimant's illness and his absence from the school together
with his suspension should have been taken into account by a reasonable
employer in evaluating the blameworthiness or performance of the Claimant.
219. In relation to health and safety there
was a Premises Manager at the school, John Marr and a Facilities Manager, Mike
James who had been appointed by the Claimant. John Marr's evidence was not
challenged namely that every year from 1999 there had been major developments
and work at the school including the refurbishment of the toilets and kitchen,
rewiring of the boiler room and that the school worked closely with the
Respondent's premises staff on such projects.
220.
At the time the Claimant went off sick in February 2009 there were major works
being undertaken in resurfacing the roof and replacing the school's windows.
The Claimant also arranged for the contractor to give a health and safety talk
to pupils in assembly. Notwithstanding the issues which surfaced following the
Claimant's suspension, we did not consider that this was a case where the
Claimant had ignored or turned a blind eye to his responsibilities.
221. Again in relation to TOIL we found that
the Claimant had sought HR advice from Carol Palmer about the merits of the
TOIL proposal.
222. In relation to the CRB issue, there were
seven CRBs which were out of date going as far back as 2006, the effect of
which was that staff were operating in a school with out of date CRB checks.
Clearly this was a serious issue, but the Claimant's evidence, which went
unchallenged, was that the system he had adopted had been vetted by Ofsted. The
system was to involve asking staff to put in CRB applications when they became
due.
223.
It had been the Claimant's intention to review procedures before going on sick
leave and that he had not been informed of any concerns when he returned to
work. We considered there was some force in the Claimant's contention in his
evidence that the CRB matter only became an issue when he refused a compromise
offer.
224. The Tribunal considered that the most
serious matter was the financial issue. The Claimant himself was clearly
concerned about the school's finances before he went on sick leave and the
school was insolvent.
225. In her written submissions to the
Tribunal Ms Fraser-Butlin succinctly itemised the financial issues. It was
clear that the Claimant was extremely concerned about the school budget issue
while he was away sick and on any view the Claimant's approach to his budgetary
responsibilities was muddled. Thus the Claimant was unable to accept that
capital and revenue monies should not be mixed in accounts.
226. In December 2007 the school was in
deficit to the extent of £141,684.75 (page 4839) as evidenced in a 2007/08
income and expenditure forecast initialled by the Claimant. The financial
position was complicated by the additional factor of the Children Centre which
was ultimately paid during the year 2008/2009. The governors were unaware of
the payroll liability and the school deficit until they were informed of the
deficit in April 2008 and the Claimant informed them of the figures after his
return to work in October 2008.
227.
Although the school's finances were clearly a matter of concern to the Claimant
we found that there was some force in the Claimant's submissions that if the
Respondent had long term concerns about the school's financial position why
such concerns had not been raised before the Claimant's suspension and action
taken at an earlier stage. The Claimant himself had raised concerns about the
viability of the Children's Centre. The Governing Body had become aware of the
deficit in April 2008 and the Claimant himself had informed the governing body
of the figures in October 2008.
228. We found that the Penny Bermingham issues
leading to the Claimant's suspension coloured the entire disciplinary processes
which followed. In the absence of the Penny Bermingham issues we concluded that
all the matters covered by the second disciplinary investigation would, on the
balance of probabilities, have been dealt with by any reasonable employer by
way of performance issues and that any necessary remedial steps should have
been dealt with by engaging with the Claimant in an endeavour to place the
school on a more viable financial footing.
229.
We found that no evaluation was made in relation to the impact of the
Claimant's absence from the school in 2008 and any failings on the part of the
interim management team. We found that the Respondent had prioritised the
removal of the Claimant from the school and maintaining his removal through a
disciplinary process rather than raising and addressing any concerns with him
in his role as Head Teacher. The wholly unjustified destruction of the
Claimant's records and the remark by Matt Britt to John Parr namely that the
Claimant was not coming back we considered evidenced the Respondent's approach
in the starkest terms.
230. The Respondent provided no explanation
why it treated concerns about the Claimant's management of the school as
disciplinary matters and we consider that there is considerable force in the
Claimant's submission that his rejection of the compromise officer against the
background of the Penny Bermingham allegations, which occurred sometime before
the commencement of the Jason Preece investigation about which the Claimant was
informed five months later in July 2009, was a determining factor.
231. We concluded that the Respondent's
treatment of the Claimant failed to treat him in a manner consistent with the
existence of an employment relationship. The delays in the Penny Bermingham
investigation which on the evidence the Tribunal found were wholly unjustified,
the clearing of the Claimant's office without reference to the Claimant and the
destruction of his files, the failure to provide the Claimant with any details
of the Penny Bermingham complaints notwithstanding his suspension, for a
period, the wholly unjustified draconian initial conditions of his suspension,
the failure to adopt impartiality during the investigation process and what we
found was the motivation on the part of the investigation officers,
particularly Mr Gilhooly, to undertake an investigation to paint the Claimant
in the most damaging light.
232.
We concluded that the Respondent had prioritised the removal of the Claimant
from the school. It may well have been the case that the Penny Bermingham
allegations were used as a "stalking horse" to achieve such a result.
We noted that Phyllis Dunipace herself had stated at an investigation hearing
into the Claimant in May 2009 although referring to the main concern at the
time of Claimant's suspension being his behaviour, also added the following:
“...but
I also had to take into account the school's improvement. We had a termly
voluntary meeting which we would look at long term reports or advice in terms
of what was going in records. We would also examine Ofsted reports, financial
information, audit reports, whether the school was in deficit...”
233.
We were satisfied that the Claimant would not have received a fair hearing and
that the only result of the disciplinary hearing would have been his dismissal.
In reaching such conclusion the Tribunal had not embarked upon a sea of
speculation, but had reached its determination on its evaluation and assessment
of the Respondent's conduct so far as it impacted upon the Claimant in the
period starting with the Claimant's admission to hospital in February 2008 and
the Claimant's resignation in September 2010.
234. Had the matters the subject of the second
investigation been treated as performance issues addressed with the active
engagement of the Claimant, and the Penny Bermingham matter been considered in
isolation from such issues, approaches which, we consider, a reasonable
employer should have adopted, the Claimant would not have been threatened with
dismissal by a reasonable employer.
235.
The Tribunal concluded that the Respondent's treatment of the Claimant from the
manner in which it reacted to the Penny Birmingham allegations, commencing with
the Claimant's suspension and its subsequent conduct of the disciplinary
process involving the Claimant involved breaches of the term of trust and
confidence on the part of the Respondent which went to the very root of the
employment relationship. The Tribunal found that the entire process was
motivated by an intention on the part of the Respondent to achieve the removal
of the Claimant from his role at the school. The Respondent by its conduct had
failed to deal or engage with the Claimant as an employee.
236. Turning to the issue of whether the
Claimant had delayed too long before his resignation the Tribunal concluded
that it was not until September 2010 that the Claimant was in a position to
make an informed decision about his resignation. The Claimant had been written
to on 30 April 2010 (pages 1513-1517) by Pat Petch informing him that he was to
attend a formal disciplinary hearing commencing less than three weeks later on
18 May 2010 to face very substantial charges against him, namely the Penny
Birmingham allegations under the first investigation by Mr Gilhooly and 11
charges under the second disciplinary investigation conducted by Jason Preece.
The Tribunal considered that the reply by the Claimant's solicitors to Ms Petch
dated 14 May 2010 pages 1519-1523 put the Claimant's position in clear terms,
namely:-
We read your letter dated 30 April 2010 with a
mixture of shock, incredulity and sadness or concern. In view of how our client
has been treated to date, perhaps we should not be surprised that the letter
amounts to a further chapter in the Council's determined attempt to remove him.
It is a further example of victimisation against our client for raising
grievances and for making protected disclosures. It caused extreme distress and
a sharp deterioration in his health and we attach a sick note confirming that
he is not fit to attend the hearing. This is of particular significance since
no one from the LA has phoned or met our client since the end of November 2009.
237. The letter requested a postponement of
the hearing which was granted and the Respondent arranged for the Claimant to
be examined by Occupational Health.
238. The Tribunal accepted the Claimant's
evidence that he was not in a fit state to consider the very significant volume
of documentation which had been generated by both investigations. The Tribunal
has commented before in these reasons that we found no reason why the Penny
Birmingham investigation could not have been concluded at a much earlier stage
and the Tribunal had no satisfactory or adequate explanation from the
Respondent why an earlier conclusion to such investigation had not been
achieved. The Claimant's state of mind and health at the time is evidenced by
the contents of the Occupational Health report dated 21 May 2010, C18. The
report included the following:-
Although
he recovered from cancer treatment in 2008, there were difficulties at the school
after his return. He has now been off work and suffered with depression and
anxiety for many months. I saw him on 4 November 2009 and suggested a speedy
resolution and some suggestions about possible conduct of any interviews. He
had a welfare meeting on 19 November 2009 which, unfortunately, he felt was
unsympathetic and very upsetting, and which he felt did not progress matters at
all and which made him tearful and seemed to worsen his condition. There has
been no contact since, although he would have appreciated supportive emails or
letters. His next contact was a letter of 30 April 2010 with dates for planned
disciplinary hearing, and detailing charges against him. His lawyer replied in
detail with a letter, and the dates passed. Meanwhile, although he had
antidepressant medication for some weeks, and some 20 sessions of counselling,
there has been no improvement, and his psychological condition has continued to
deteriorate.
I. Present Situation
He has been worse in the last few months, with
very little sleep, and increasing tearfulness. In fact he has suicidal
feelings. His condition has affected his family, and his wife and children have
also suffered. Another significant obstacle is his annual cancer check scan
which is due on 29 July 2010.
ii. Specific Questions
His psychological condition is deteriorating,
and I am concerned. He is suffering from an acute anxiety state with some
depressive symptoms. I do not feel that this condition is consistent with a
further interview or hearing at present, and I do not consider he is fit to
instruct a representative, understand allegations, or follow proceedings, which
factors are the principle test for fitness to attend hearings. Although you
asked specific questions about when he will be fit to attend, I am unable to
take this further at present
iii. Further Plans
In my opinion he will benefit from urgent
specialist psychiatric assessment for advice and possible treatment. I am
writing to his GP with a copy of this letter. I have given him a recommendation
for a self-help book. Please ask us to see him again in one month's time, and
we can advise you further.
239. The Tribunal accepted the Claimant's
evidence and his submission that it was not possible for him to consider the
disciplinary investigations when they were delivered which had been compiled
over an 18 month period and amounted to five large ring binders. It was not
until the late summer 2010 that the Claimant was in a position to consider the
very significant amount of documentation and to make an informed judgment about
the Respondent's approach throughout the prolonged disciplinary process. We
conclude that the Claimant's resignation was triggered by the Respondent's
conduct culminating in his dismissal.
240. The Tribunal found on the evidence, that
the entire investigatory process had been motivated by the Respondent's
intention to achieve the removal of the Claimant from the school. The Tribunal
concluded that in the circumstances there was no unreasonable delay on the part
of the Claimant before he resigned from his employment by his letter dated 9
September 2010.
241. It is the unanimous judgment of the
Tribunal that the Claimant was unfairly, constructively dismissed by the
Respondent.
Disability
Discrimination
242.
The Tribunal was unable to accept Ms Fraser-Butlin's submission that when the
Claimant returned to work in September 2008 he had a past disability. The
Claimant was fit to return to work in September 2008 but was still subjected to
routine scans and we noted that nearly two years later the occupational health
report of 21 May 2010 referred to the Claimant's annual cancer check scan due
on 29 July 2010 as a significant obstacle to the Claimant's general wellbeing,
C18. Further the Respondent Lambeth Legal Services in a letter to the
Claimant's then solicitors dated 15 June 2010, page 1544 stated the following:-
i.
We see from your witness synopsis that you intend to call your client's
oncologist to give evidence. You will recall the issue of medical evidence had
been raised previously. On 16 March the Tribunal ordered that the parties try
to agree directions in respect of medical evidence. On 19 March you wrote to
the Tribunal and strongly disputed the need for medical evidence. On 25 March
we conceded that your client was disabled and had been at all material times
and that there was now no need for medical evidence.
ii. It is clear from your synopsis that Dr
Harper's evidence will be expert evidence. If expert evidence is now considered
to have been unnecessary then we consider that it would be appropriate for you
to first explore that with the Tribunal and, if they consider that will be
necessary, the parties can then try to agree appropriate directions.
243. The Tribunal considered that in June
2010, the Respondent accepted that the Claimant was someone who clearly
remained vulnerable as a result of cancer check scans. Further in a report
dated 15 December 2010, C32/1 from the Claimant's consultant medical
oncologist, Dr Peter Harper. Dr Harper stated the following:-
i. Post operatively the diagnosis was made that
the cancer had arisen for testicular cancer. The testicular cancer itself was
resected.
ii.
Thereafter he came under my care for combination chemotherapy. The
combination chemotherapy used in metastatic testicular cancers is one of the
most aggressive chemotherapies we use in every day oncology.
iii.
As ever in these cancers, although we hope the prognosis is excellent,
we cannot give the reassurances the patient would like and there is no doubt
that Mr Walker had been under considerable stress.
244. We conclude that the Claimant was
disabled for the purposes of the DDA at all material times.
245. The Claimant had raised a grievance
alleging harassment, victimisation and bullying and acts of discrimination
under the DDA as early as 27 February 2009 which was supported by a statement
of grievance enclosed in his letter to the Respondent's Chief Executive Derek
Anderson dated 24 March 2009 pages 580-601.
246. We approached the allegations of
victimisation with some caution. The Respondent had already embarked on a
course of conduct involving the Claimant's suspension and the Penny Bermingham
investigation before the protected act of February 2009. Further we concluded
that for its own reasons the Respondent was motivated by an intention to
achieve the Claimant's removal from his post of Head Teacher at the school.
Accordingly there was clearly no causal link between the Penny Bermingham
investigation and the protected act.
247. Although the Tribunal rejected Mrs
Fraser-Butlin's submission that the reason for the treatment of the Claimant
was because of the seriousness of the allegations and the need to investigate
them, we accepted her contention at paragraph 108 of her submissions, namely
that:
What
is striking is that the Claimant's position has been that the Respondent was
seeking to dismiss him before he lodged his grievances. Therefore this cannot
be victimisation.
248. We concluded that the treatment
complained of by the Claimant was not on grounds of any protected act and
accordingly the Claimant's complaint of unlawful victimisation is not well
founded and is accordingly dismissed.
249. The Tribunal also considered the
Claimant's complaint that the Respondent failed to make reasonable adjustments
for him. We did not accept the submission of Ms Fraser-Butlin that the Claimant
had to be treated as a person having past disability which would not place a
duty on the Respondent to make reasonable adjustments for an individual with a
past disability. However, the Respondent
had made a number of adjustments in relation to the investigation process,
identified by Ms Fraser-Butlin in her submissions, namely limiting meetings to
two hours, having breaks every hour, allowing the Claimant's wife to be present
using written questions of the Claimant rather than interviews.
250. The Claimant himself did not suggest that
there were any particular adjustments which could be made. Further, although
the Tribunal enquired on several occasions of the Claimant about the provision
criterion or practice which placed him at a substantial disadvantage in
comparison with those who were not disabled the Claimant was unable to identify
any such PCP.
251.
The Claimant's complaint of a failure on the part of the Respondent to make
reasonable adjustments for him is not well founded and is accordingly
dismissed.
252. The Claimant also alleged harassment
involving his suspension, the Penny Birmingham investigation, the approach
taken to his grievances, and the second disciplinary investigation. The
Tribunal concluded that the Respondent's treatment of the Claimant had been
motivated by its intention to remove the Claimant from his role as Head Teacher
in pursuance of which it continued his isolation from the school.
253. Although we concluded that the conduct of
the Respondent towards the Claimant throughout the entire process crossed the
threshold into conduct which wholly undermined the employment relationship
between the parties, we were unable to conclude that the Respondent's conduct,
deplorable as it was in some instances, was on grounds of the Claimant's
disability or on grounds of any protected act. We found no causative link
between the conduct complained of, which the Claimant alleged amounted to
unlawful discrimination on grounds his disability, and the Claimant's
disability.
254.
Notwithstanding our criticisms about the Respondent's conduct towards the
Claimant we found no facts which could have led us to conclude that the
Respondent's conduct was unlawful under the DDA in the absence of an adequate
explanation from the Respondent.
255. It is the unanimous judgment of the
Tribunal that the Claimant's complaints of unlawful disability discrimination
and victimisation are not well founded and are accordingly dismissed.
256.
A Remedy Hearing will be listed.
Signed: Employment Judge Hall-Smith
Date: 02 August 2011
Judgment
and Reasons sent to the parties and entered in the Register on: 02 August 2011
