Dismissed for trade union role: teacher wins over £370,000 in compensation
Employees are protected from being subjected to a detriment or being dismissed by their employer, if the sole or main reason is to prevent or deter them from participating in trade union activities or to penalise them for doing so. We consider what schools and colleges can learn from the recent case of Ms C Wood-Hope v (1) Salford City Council (2) The Governors of Friars Primary School where a trade union rep was dismissed after she complained to the head that he hadn't followed collectively agreed terms.
The law
Under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA), workers have the right not to be subjected to any detriment by their employer when the sole or main purpose is to:
- Prevent or deter the worker being, or seeking to become, a member of an independent trade union, or penalising them from doing so
- Prevent or deter the worker from taking part in the activities of an independent trade union at an appropriate time, or penalising them from doing so
- Prevent or deter the worker from making use of the services of an independent trade union at an appropriate time, or penalising the worker from doing so
- Compelling the worker to be, or become, a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions
The EAT in University College London v Brown explained that identifying the employer's “sole or main purpose” was a subjective question of what was in the mind of the employer at the time.
Under section 152 of TULCRA, an employee is automatically unfairly dismissed if the reason for the dismissal (or, if more than one, the principal reason) was that the employee:
- Was, or proposed to become, a member of an independent trade union
- Had taken part, or proposed to take part in the activities of an independent trade union
- Had made use, or proposed to make use, of trade union services
- Had failed to accept inducements relating to union membership or activities, or inducements relating to collective bargaining
- Was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused, or proposed to refuse, to become or remain a member
An employee can bring a claim of automatic unfair dismissal with any length of service; they do not need two years' service.
Facts
Ms Wood-Hope, a teacher at Friars Primary School, was the National Education Union (NEU) representative at the school.
The head teacher, Mr Earnshaw, announced that future classroom observations would be conducted through unannounced drop-ins. Ms Wood-Hope raised concerns on behalf of the teaching staff that this would breach the classroom observation protocol negotiated with the school and NEU. Mr Earnshaw responded by issuing her with an “informal warning” for the way she had raised these concerns.
NEU members of staff opposed his plans and voted for strike action, but he eventually agreed to implement week-long observation periods with five days' notice.
Ms Wood-Hope experienced a panic attack and was signed off with work-related stress after being informed that she was going to investigated.
Upon her return, staff told Ms Wood-Hope that Mr Earnshaw was conducting observations outside the agreed protocol. She raised this with him. He became angry but agreed to re-do the observations and remove the records he'd created. Later that day, he informed her of another misconduct investigation. He presented a critique of year 3 RE class books, but Ms Wood-Hope pointed out she didn't teach that class RE. He snatched the critique back and accused her of misconduct - but didn't provide any details.
Ms Wood-Hope was then told that she wasn't being investigated and, instead, would be subject to a support plan to improve her performance. The deputy head was asked to discuss it with her, but when he requested Mr Earnshaw's presence, Mr Earnshaw instead asked if anyone else was running against Ms Wood-Hope in the upcoming NEU representative election.
Ms Wood-Hope was signed off sick again with work-related stress. She raised a grievance about Mr Earnshaw's actions; she viewed the misuse of the capability procedure to be a means of controlling her as the NEU representative. The grievance and subsequent appeals were dismissed. Ms Wood-Hope was told that the support plan could not be removed because it was Mr Earnshaw's decision as Head Teacher to impose it.
Following a stage 4 attendance management meeting, Ms Wood-Hope was dismissed. Her appeal was unsuccessful and she brought claims of automatic unfair dismissal for trade union reasons, detriment on the grounds of trade union membership/activities, discrimination arising from a disability, and a failure to make reasonable adjustments.
Automatic unfair dismissal
The tribunal found that the dismissal was automatically unfair because the principal reason was Ms Wood-Hope's trade union activities.
Even if the school had shown a potentially fair reason for dismissal, the tribunal said the process was unfair. Before the stage 4 attendance meeting, Mr Earnshaw gave the chair a report which the tribunal said was biased, focused on Ms Wood-Hope's professional capabilities (instead of her sickness absence) and was aimed at ensuring dismissal. The chair admitted he considered unproven misconduct allegations and adopted Mr Earnshaw's view that the support plan was a requirement, without questioning why it had been imposed.
The tribunal also noted that the dismissal appeal chair (the head of governors) had a conflict of interest; she chaired the grievance appeal, and her daughter (the assistant head) was involved in the decision to impose the support plan.
Detriment on the grounds of trade union membership/activities
The tribunal found these acts amounted to detriments:
- Ill health/capability/managing absence process led to her dismissal
- Support plan: there was no evidence of poor performance, it wasn't supportive, and how it was introduced caused Ms Hope-Wood considerable stress and anxiety
- Rejecting her grievance because the support plan was the head teacher's decision was ‘nonsensical’ according to the tribunal
It concluded the treatment was to prevent or deter her from taking part in trade union activities and to penalise her.
Disability discrimination
Ms Wood-Hope was deemed to be disabled due to stress, depression and anxiety. The tribunal found that she had been treated unfavourably because of her disability, on the same grounds as above, and that was unjustified. She therefore won her discrimination arising from a disability claim.
The tribunal also found the school failed to make reasonable adjustments. It could have removed the support plan, disregarded her disability-related absences, and replaced Mr Earnshaw as Ms Wood-Hope's line manager.
How much compensation was awarded?
At the remedy hearing, the tribunal were given evidence of Ms Wood-Hope's finances; ultimately, she had to sell her family home to meet her financial commitments as a result of the treatment she experienced at the school, and which continued after she left.
When an employee is automatically unfairly dismissed on grounds related to trade union membership or activities, they are entitled to the higher of either the statutory minimum basic award, or the basic award for ordinary unfair dismissal (calculated by reference to continuous length of service, age, and a week's pay). When Ms Wood-Hope was dismissed, the statutory minimum basic award at that time was £6,634. As this was higher than the ordinary basic award calculation for her (£5,712), she was awarded £6,634. The tribunal also awarded her £500 for loss of statutory rights.
At the point she was dismissed, Ms Wood-Hope earned £889.55 per week gross. The tribunal awarded her £9,670 to reflect the fact that the school had unilaterally reduced her monthly salary when she was on sick leave. The tribunal awarded loss of earnings from 1 May 2021, the first day of her unemployment, through to the date of the remedy hearing on 22 November 2024: a period of 3 years, 6 months and 22 days. The tribunal explained that Mr Earnshaw used his position as head teacher to provide bad references for Ms Wood-Hope which meant that she was either not hired or any employment she did manage to secure was quickly taken away from her. Therefore, she was awarded £95,721 for loss of earnings and £135 for job-seeking expenses.
However, the tribunal decided not to make an award for future loss. By the time of the remedy hearing, she was carrying out regular supply work and the tribunal concluded it would be “inappropriate” to award additional sums given the fact she was recovering over three years loss of earnings. The tribunal also didn't include any reference to pension losses (although it didn't say why).
The tribunal went on to also award £25,000 for injury to feelings (towards the top of the middle Vento band). This was because Mr Earnshaw knew Ms Wood-Hope had depression and was insensitive to her and her feelings. His conduct after her dismissal also significantly continued to injury her feelings.
Ms Wood-Hope developed stress-related anxiety because of the discrimination and the tribunal found her health has never recovered. Therefore, it made an award for personal injury of £10,000.
The tribunal found that the long-running campaign by Mr Earnshaw to remove Ms Wood-Hope and then the bad references he provided caused her specific harm. Mr Earnshaw failed to attend the remedy hearing, and the tribunal took this to mean that he had no remorse, insight, nor learnt any lessons. As such, the tribunal considered this case merited an award of £10,000 for aggravated damages.
£43,039.54 was awarded for interest and £121,529.62 was awarded to account for the amount that would have to be paid in tax.
The tribunal also determined that a 15% uplift on the compensation should be applied because the school failed to follow the ACAS code of practice on disciplinary and grievance procedures. Therefore, a further £48,334.37 was awarded.
In total Ms Wood-Hope was awarded £370,563.53.
What can schools and colleges learn?
Most employers don't say - well we are sacking you because you are a trade union rep or helped to plan a strike etc, and look for another reason to justify their dismissal. This case demonstrates that tribunals will look at what is really motivating you - not just the reason you give.
To be fair, it wasn't a particularly difficult task to undercover what was going on in this school. The Head was not exactly subtle. It would have been very obvious to a neutral observer that the Head's criticisms of Ms Wood-Hope began also immediately after she raised legitimate concerns about the fact that he was breaching an agreement which had been agreed with the union. Many cases are not this clear-cut.
Although schools and colleges already have a high percentage of staff who are members of a union, these may increase further. The Employment Rights Bill is set to strengthen collective bargaining and employers will have to add a clause in contracts of employment reminding staff they have the right to join a union.
The other point to note is that if you have concerns about the performance or conduct about an employee, you need to act fairly before taking any action against the employee. Investigations need to look into all facts; not just seek out evidence that favours one party. In this case, the tribunal noted that the evidence compiled against Ms Wood-Hope was selective and deliberately constructed to be critical of her.
You also need to carefully consider who is the best person to chair disciplinary, capability, and grievance hearings. They need to be impartial (and must be seen to be impartial) and each stage, ideally, needs to be dealt with by someone with higher authority. The tribunal noted in this case that Mr Earnshaw ‘wholly influenced’ and ‘steered’ decisions.
If an employee needs support, you need to ensure it is genuinely helpful and supportive. The tribunal noted that Ms Wood-Hope's support plan lacked any arrangements for observing good practices, professional development, training, coaching, and counselling by expert teachers.
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