Irwin Mitchell | Focus on Education | Case law update

Can criticising a teacher give them grounds to resign and claim unfair dismissal?

Yes if it is unjustified according to the EAT in Bethnal Green v Shoreditch Education Trust v Dippenaar.

Facts

Ms Dippenaar was employed as a PE teacher from 2006 until 2013. She was promoted on a number of occasions and her teaching had been consistently highly rated. However, immediately following the appointment of a new Head of Faculty/Director of Learning, Ms Dippenaar’s teaching was criticised and she received negative assessments. She resigned from her job, at which time she was aged 39 and had reached the top of her salary scale through length of service progression. She brought claims in the Employment Tribunal for constructive unfair dismissal and age discrimination, alleging that she had been forced out because the school had a practice of replacing experienced teachers with cheaper, less experienced employees.

The Tribunal found that Ms Dippenaar was entitled to resign in response to criticism of her work. It said that the school’s recent assessments of her teaching were in stark contrast to those that went before and, in the absence any reasonable explanation, meant that she had been subjected to an unjustified performance management process with a view to securing her resignation or dismissal. It also upheld her complaint of age discrimination. The school appealed against both findings.

Decision

The EAT rejected the school’s appeal against the finding of constructive dismissal. Subjecting an individual to a performance management process without cause was easily capable of being a repudiatory breach of contract which damaged the relationship of trust and confidence between employer and employees. However, the appeal against the finding of age discrimination was upheld. Although there were rumours around the school that younger staff were being appointed because they were cheaper, there was no evidence that this was a “practice” (something that required more than one incident).

Tips for schools

The school was always going to face an uphill struggle defending the claim of constructive dismissal because there was no evidence that this teacher’s performance had in fact declined. In the absence of a reasonable explanation, the Tribunal was entitled to believe that performance had been raised in the hope that it would demoralise the teacher and cause them to leave. This is simply bad practice and could also give rise to complaints of bullying and harassment and potentially also to personal injury claims if the individual becomes ill.

The age discrimination claim is interesting as it was brought as an indirect age discrimination claim which requires individuals to demonstrate a group disadvantage, something that is more difficult if only one person is affected. Where an individual believes that they have been discriminated against because they are of a certain age, they may be able to bring a direct discrimination claim. Generally, schools will not be able to cite cost alone to justify employing a cheaper teacher, even if they are in financial difficulties.

Was the dismissal of a Christian teacher who stood by her sex offender husband an act of religious discrimination?

Yes on the facts in Pendleton v Derbyshire County Council and The Governing Body of Glebe Junior School.

Facts

Ms Pendleton, a practising Anglican Christian, was employed as a junior school teacher. Her husband was the headmaster of another local junior school which was part of the same cluster group meaning there was a degree of collaborative working between them.

Mr Pendleton was arrested on suspicion of downloading indecent images of children and voyeurism. The voyeurism involved using a camera hidden in a pen to photograph boys in a state of undress in the school changing rooms. There was no evidence that Ms Pendleton knew about her husband’s activities but the head teacher of her school said that she would not be able to support her if she remained with him and he was convicted (which he later was).

Ms Pendleton decided to stay with her husband. She was satisfied he had demonstrated unequivocal repentance and remaining married was consistent with her marriage vows. She said that she would not condone or give the impression that she condoned his actions.

After Mr Pendleton’s conviction, Ms Pendleton was called to a disciplinary hearing and dismissed for gross misconduct. The Chair of Governors believed that Ms Pendleton’s decision to maintain a relationship with her husband had eroded her suitability to carry out the safeguarding responsibilities of her role and that the choices she had made in her personal life were in direct contravention to the ethos of the school. Her internal appeal was unsuccessful.

She brought a successful claim of unfair dismissal, but her claim for discrimination, initially failed. She appealed against the finding in respect of her discrimination claim.

Decision

To succeed, Ms Pendleton had to show that the school would have dismissed anyone who refused its instruction to divorce their spouse in the same circumstances, but that this instruction caused her “particular disadvantage” because of her faith. As a staunch Christian, she argued that it was more difficult for her to divorce because of the commitment made to God than it is for another who made that commitment only to him/herself.

The EAT found that the policy to dismiss Ms Pendleton was an act of indirect discrimination which put people of who believed in the sanctity of marriage at a particular disadvantage.

Tips for schools

Alleging that a member of staff has exercised poor judgment in relation to relationships outside of school will not normally constitute misconduct, let alone gross misconduct. It might however, be fair to dismiss on the grounds of “some other substantial reason”. It is important to set out carefully what grounds are being relied upon as mistakes at this stage can render, what might otherwise have been a fair dismissal, unfair.

Guidance issued by the Department of Education makes it clear that the behaviour of a partner or other family members may raise concerns and require careful consideration by an employer as to whether there may be a potential risk to children and young people in the workplace. That does not, of itself, give a school the right to dismiss a member of staff before properly examining whether there is a risk. Schools must be able to demonstrate why they have reached the decision to dismiss and, why there is a risk in continuing to employee the individual. In this case, had the school considered alternatives to dismissal and been open minded during the course of the investigation and disciplinary then there may have been a different outcome.

These are highly unusual facts and the issue finding of indirect discrimination is problematic, not least because many people may consider that they have responsibilities towards their marriage vows, unaffected by any religious ethos. Equally, others with the same religious ethos as Ms Pendleton might have chosen to have divorced their husband in the same circumstances.

Can an employee blow the whistle about a cramped workstation?

They might be able to according to the EAT in Morgan v Royal Mencap Society, but only if the employee can demonstrate that they reasonably believed that their complaints were in the public interest. This can only be determined at a full hearing.

Facts

Ms Morgan worked for the charity for almost three years. During her employment she injured her knee and complained on three separate occasions to senior staff that her working area was cramped and that this was adversely affecting her knee. We don’t know how Mencap reacted to these complaints but clearly, whatever steps they took were not to Ms Morgan’s satisfaction and, she resigned claiming both constructive unfair dismissal and that she had suffered a detriment as a result of having made a protected disclosure.

In order to get past the post on her whistleblowing complaint, she had to demonstrate that she had a reasonable belief that the disclosure of wrongdoing (in this case her lack of desk space) was in the public interest. When pressed on this point, she said that she believed the public would be “shocked” by her working conditions and that these presented a health and safety risk to others. She then went on to say “the public ought to know about charities that behave in this manner”. Mencap, not unreasonably, thought that her complaint could not be said to be in the public interest as it only affected her and it made an application to strike out this part of her claim at a preliminary hearing.

Mencap was initially successful and Ms Morgan appealed to the EAT.

Decision

The EAT said that the case should proceed to a full hearing to determine if Ms Morgan did reasonably believe that her complaints were in the public interest. This is because there is a high threshold which must be satisfied before a claim can be struck out before hearing any evidence.

Tips for schools

This case again demonstrates that tribunals will not strike out claims, of even seemingly hopeless cases, at an early stage. Tribunals will be expected to test by evidence whether the individual bringing the claim a) did believe that their disclosure was in the public interest and b) whether that subjective belief was a reasonable one to hold. We can only hope that common sense prevails when the case is heard. The “public interest” test introduced in 2013 to prevent individuals being able to bring whistle-blowing claims on the basis of a breach of their own contractual rights is creaking at the joints. The case of Chestertons, which involved an estate agent who complained that profit figures had been manipulated to reduce the bonus paid to him and around 100 of his peers, is due to be heard by the Court of Appeal in the autumn. We hope that the Court of Appeal will take the opportunity to clarify what is meant by the “public interest”.