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”.
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