2302617/2009
23471011/2010
THE
EMPLOYMENT TRIBUNAL
LONDON
SOUTH
BEFORE: EMPLOYMENT JUDGE HALL-SMITH
MEMBERS: MRS V DAVIDSON MS C EDWARDS
BETWEEN:
Mr J.R. Walker Claimant
AND
London
Borough of Lambeth Respondent
ON: 19, 22, 23, 24, 25, 26, 29, 30
November 2010, 7, 8, 10 December 2010, 31 January 2011, 2 February, 21, 22, 23,
24 February 2011, 28, 29 March 2011; (Chambers) 12, 13, 14, 19, 20 April 2011;
8 July 2011
Appearances:
For
the Claimant: In person
For
the Respondent: Miss Fraser-Butlin, Counsel
JUDGMENT
THE
UNANIMOUS JUDGMENT of the Tribunal is that:
1.
The Claimant was unfairly dismissed within the meaning of section 95(1) (c) of
the Employment Rights Act 1996.
2.
The Claimant's complaints of unlawful disability discrimination and
victimisation are not well founded and are accordingly dismissed.
3.
A Remedy Hearing will be listed.
REASONS
1.
By claim forms
presented to the Tribunal on 26 May 2009 and 9 September 2010, Mr James Walker,
brought complaints of unfair constructive dismissal unlawful disability
discrimination, harassment and victimisation on grounds of disability against
the Respondent, the London Borough of Lambeth.
2. At the hearing the Claimant attended in person
and gave evidence before the Tribunal. The Claimant called the following
witnesses on his behalf, namely
•
Mr Ray Sriotkin, NUT Branch Officer
•
Mr John Marr, Premises Officer
•
Mrs Rebecca Walker, the Claimant's wife
•
Ms Jennifer Page, Teacher
•
Mrs Marite Stragier, Chair of Governing Body
•
Ms J Redgate, Teacher and Senior Management Team
•
Ms Leanne Foulkes, Teacher
•
Ms Susan Burd, Teacher
•
Ms Barbara Churchward, School Admin Officer
•
Ms Emma Bilsdon, Assistant Head Teacher
•
Ms Carol Ann White, Management Consultant
The
Tribunal also read witness statements from Maire Lynch, Teacher and Kelly
Ireland, Receptionist and Teaching Assistant.
3. The Respondent represented by Mrs S
Fraser-Butlin, Counsel, called the following witnesses on behalf of the
Respondent:
•
Ms Cathy Twist, Assistant Director, CYPS
•
Ms Claire Cobbold, Head of HR CYPS
•
Mr Nilesh Jethwa, Manager in Education Finance
•
Mr Matt Britt, School SIP from November 2008/interim Head Teacher
•
Ms Penny Bermingham, Assistant Head, Henry Fawcett Primary School/Acting Head.
•
Mr Barry Gilhooly, Assistant Director CYPS
•
Mr Christopher Ashton, Deputy Executive Director CYPS
• Ms Sandra Morrison, Assistant Director CYPS
•
Ms Pat Petch, Henry Fawcett Primary School IEB
•
Ms Carol Palmer, CYPS Manager
•
Ms Ros Scherler, School Adviser
•
Mr Mike Suarez, Executive Director, Finance and Resources
•
Mr David Hughes, Deputy Chief Internal Auditor
•
Mr Jason Preece, Assistant Director CYPS
•
John Parr, Associate Head Teacher
4.
There was a bundle of documents contained in five lever arch file and a
supplementary file paginated from 1 to 5,085. The Claimant produced a bundle of
documents C1 to C31.
The
Issues
5. It was unfortunate that the parties had not
agreed a list of issues before the hearing. At the outset of the Tribunal
hearing Mrs Fraser-Butlin on behalf of the Respondent produced a draft list of
issues which the Claimant did not challenge. Accordingly the list of issues
before the Tribunal involved the following:
Disability
Discrimination
5.1
As at February 2009 the Respondent accepts that the Claimant was a disabled
person having regard to the Claimant's condition of cancer. There was an issue
as to whether the Claimant's impairment subsequently became a past disability
in circumstances where a scan revealed that he was "clear".
5.2
The Claimant complains of direct discrimination, disability related
discrimination and harassment regarding the following up to 4 November 2009:
5.2.1, his suspension;
5.2.2 the Penny Bermingham
investigation;
5.2.3 the approach taken to
his grievances;
5.2.4 the second
disciplinary investigation.
5.3
The Claimant alleges reasonable adjustments were not made:
5.3.1 taking account of the
Claimant's illness on his performance prior to his diagnosis;
5.3.2 considering the impact
of the interim team who managed Henry Fawcett Primary School during his
absence;
5.3.3 considering the impact on the school
of the Claimant's sudden diagnosis and
absence;
5.3.4 adjusting the
criteria for assessing his performance to take into account his illness and his
absence;
5.3.5 considering the
ongoing consequences of the Claimant's treatment and the need for support;
5.3.6 making adjustments to
the investigation procedures and the meetings despite repeated requests.
5.3.7 considering medical
advice in relation to the Claimant's treatment.
5.4 The Claimant relies on his grievance dated
27 February 2009 as a protected act. He alleges that he was victimised because
of it. The detriments he relies on are:-
5.4.1
the Penny Bermingham investigation;
5.4.2
the approach taken to his grievance;
5.4.3
the second disciplinary investigation where matters took place after 27
February 2009.
5.5 The Claimant alleges that he resigned
because of the relationship of mutual trust and confidence with the Respondent
had broken down for the following reasons:
5.5.1 he no longer had trust and confidence
that he would be treated fairly and justly at a disciplinary hearing;
5.5.2 the failure to provide witnesses and the
Claimant with specific and detailed allegations.
5.5.3 the failure to clarify the division of
responsibility between other individuals and bodies;
5.5.4 compilation of witness evidence of
people who had never met the Claimant and the failure to interview key witnesses.
5.5.5
disregarded whistle blowing evidence;
5.5.6
failure to appoint an impartial and independent panel.
5.5.7 repetition of allegations relating to
the period when the Claimant was undergoing chemotherapy;
5.5.8 failure to act on allegations that Penny
Bermingham bullied the Claimant and others;
5.5.9 procuring the destruction of the
Claimant's files and conducting a flawed investigation into the issues;
5.5.10 failure to carry out the investigations
in a prompt and ordered way.
5.5.11 not acting even-handedly by not asking
the questions about Mrs Bermingham's behaviour to the Claimant;
5.5.12 failure to provide accurate minutes of
witness meetings.
5.6 There was a further issue involving
jurisdiction namely in circumstances allegations involving matters occurring
before and after 6 April 2009. Such allegations fall within the transitional
provisions of the Employment Act 2008 (Commencement No 1) Order 2008 and Part 3
of the Schedule to the Order provides that where the Claimant presents a
complaint to the Tribunal before 4 July 2009 the old procedures regarding
grievances would apply. Accordingly Section 32 of the Employment Act 2002 would
prevent a Tribunal having jurisdiction to consider a complaint unless the
Claimant had presented a grievance. The 2008 Order was relevant to the
Claimant's first claim form alleging unlawful disability discrimination.
The Facts
6.
The Claimant Mr James Walker commenced his employment with the
Respondent, London Borough of Lambeth ("Lambeth") in 1990 as a
teacher. In September 1999 the Claimant became Head Teacher of the Henry
Fawcett Primary School. The school is a big school and at the time of the
Claimant's involvement with the school there were about 400 pupils and 80
members of staff. The school's annual budget was approximately £2 million.
7. In
his role as Head Teacher of the school the Claimant had to deal with a number
of challenges which included problems with pupil behaviour and the poor state
of the school building. At the time the Claimant joined the school there was a
high rate of exclusions, which the Claimant successfully reduced.
8.
During the period the Claimant was Head Teacher of the school there were
two Ofsted inspections which rated the Claimant's management and leadership as
good, pages 1593 - 1632.
9. It was clear from the evidence that the
Claimant was highly committed to the school and the Claimant generated a
significant amount of respect both amongst parents, teaching staff and pupils.
10. In
2005 the Claimant was asked by the Respondent to set up one of its first
Children Centres to be attached to a primary school. Accordingly the Claimant
took over the running of an existing day nursery located at Kennington.
11. The Tribunal accepted the Claimant's
evidence that the management of the Children's Centre presented many
challenges, including a large number of staff and the need to carry out major
refurbishment of the building. There were, in addition, concerns about long
term funding of the centre.
12. Notwithstanding the endeavours of the Claimant
to improve the school the Respondent Council did have concerns about
educational levels at the school, which in 2007 were reflected in poor results
in Foundation stage and Key Stage 1. Some results were below average, although
other schools in Lambeth reflected similar levels of low achievement to those
of Henry Fawcett Primary School. In common with all the Respondent's schools
Henry Fawcett Primary School had a School Improvement Partner
("SIP"). The school's SIP and school advisor for the period 2004 to
2008 was Ros Scherler.
13. In
February 2008 the Claimant underwent major surgery to remove a large tumour in
his abdomen. On 18 March 2008 the Claimant was diagnosed with cancer and was
informed that he would require more time off work to undertake chemotherapy
treatment.
14.
Prior to the Claimant's operation on 28 February 2008, the Claimant had
attended a meeting with the governing body of the school on 6 February 2008,
page 2048/5. At the meeting issues relating to funding were discussed.
15. Once it became clear that the Claimant
would be away from the school for a prolonged period, steps were taken to
install interim arrangements for the running of the school. Initially the
school's three Assistant Heads, Emma Bilsdon, Penny Bermingham and Yasmin Ahmed
undertook the role of running the school.
16. On 24 April 2008, Cathy Twist, Assistant
Director (Standards) Lambeth Children's and Young Peoples Service wrote the
following e-mail to the Claimant, page 281:
I
do hope the treatment is going well and you are managing to have some
relaxation time.
All seems to be fine at Henry Fawcett. Ros and
I met with John Parr and his tenant from RYA who is also happy to give a couple
of afternoons a week support to Penny and the team.
Ros and I talked to Penny, Emma and Yasmin
today about their roles and agreed how John and Liz would support them.
It would seem important that there are clear
lines of accountability and perhaps some remuneration for Penny, Yasmin and
Emma. Taking advice from HR, if we formalise the roles slightly further with
Penny as acting Head Teacher and Yasmin and Emma as acting Deputy Head Teachers
each with the clear responsibilities you have already allocated but adding one
or two other and a clear oversight role from Penny so I think governors can be
very clear that all the bases have been covered. It also means that we can give
the three of them some pro-rata remuneration for the summer term and get Claire
Cobbold to suggest what that might be based on, current salaries and the differential
between yours and theirs and clear that with governors.
The
LA will pay for the support from John and Liz and for additional teaching and
learning consultants support as needed.
You absolutely don't need to respond to this -
but I just wanted to keep you in the loop. As I say things seem absolutely
fine, and we are all working with Penny to ensure she and the other staff have
all the support they need!
17. The Claimant did have genuine concerns
that Penny Bermingham lacked the necessary experience to undertake the role of
acting Head Teacher. On the same day the Claimant replied to Cathy Twist, page
277, stating the following:
Thanks for the e-mail and updating me on the
cover arrangements. The support sounds very good. My only concern is that Penny
is not overloaded. Yasmin has a lot of experience at a senior level. It might
be worth giving her HR issues to deal with. I am happy to leave it to the chair
to make a final decision.
18.
The Claimant during the period of his treatment in April and May 2008 had
concerns, about the school budget. On 14 May 2008 the Claimant e-mailed the
following to Cathy Twist:
I am very worried about the school - CC budget
Penny and Phyllis have worked hard on it but there is an outstanding problem
for 200718 income for the Children's Centre. I calculate the school is still
owed over £211,000 for day nursery and Sure Start grant for last year.
Apparently Lynn Singleton from Community Children Services been into school and
claims there are no outstanding monies to be paid. This I know is not the case.
Also there has been, as far as I can see, no indication of the level of the day
nursery grant for 2008109 so planning for the centre budget is impossible.
What annoys me most about this is CC funding
has been difficult from the start the original budget was Inaccurate, late
payment of grants so the school ended up subsidising the CC, some negative
costs have taken years to sort.
Please can you help to resolve this. I am
happy to meet to help sort it out.
19. On
15 May 2008 Cathy Twist replied to the Claimant, page 291:
Please do not worry about the budget - we are
on the case and sorting out CC - day nursery issues. If there are any problems
I will e-mail you and let you know the situation. Everyone is working well
together and John and Liz have been a great support to the school. I hope the
treatment remains bearable - all good wishes and take care.
20. It was the Respondent's case that prior to
his illness the Claimant had failed to manage the budget and to provide the
school governors with the correct financial information relating to both the
school and to the Children's Centre. The Claimant's sick leave had coincided
with the end of the school's financial year and accordingly there was a need to
close the 2007/8 year end accounts and set a budget for 2008/9. The Tribunal
found that in December 2007 the Claimant had initialled an income and
expenditure forecast, pages 4838 - 4839 which revealed a deficit of
£141,684.75. The Claimant appeared to be factoring in capital assets in order
to explain that the size of deficit was not as great as presented in the
relevant financial documents before the Tribunal. However during his absence
the Claimant had alerted the Respondent to his concerns about the budget as
evidenced in the exchange of emails and had been reassured by Cathy Twist's
email to him of 15 May 2008 quoted above.
21. It
was the Claimant's case that problems relating to the availability of finding
funds for the Children's Centre and long running problems such as arrears on
rates had distorted the financial position. We consider that the Claimant must
have had some awareness that prior to his illness, the school was effectively
insolvent. However the Claimant was clearly concerned about the school's
financial situation while he was at home recovering from his operation and
subsequent treatment as reflected in his e-mails which were generated over such
period.
22. On 10 June 2008 the Claimant made a visit to
the school. Prior to his visit the Claimant had raised a number of issues with
Penny Bermingham and John Parr over the telephone, namely about the position of
a dance movement therapist, Sue Curtis at the school. The Claimant had also
been made aware of difficulties in the relationship between Penny Bermingham
and the other two Deputy Head Teachers.
23. The Claimant remained concerned about the
budget issues and was informed by the school's Finance Officer that the issues
with the budget remained unresolved. The Claimant spoke to Liz Tenant who was
at the school at the time to talk to her about the budget situation.
24. There was an unsigned written account by
Liz Tenant, pages 305 - 306 of her meeting with the Claimant on 10 June 2008
which portrayed the Claimant as being aggressive, intimidating and
unprofessional Liz Tenant did not give evidence before the Tribunal and
accordingly was not cross examined by the Claimant, who did not accept Liz
Tenant's account of the encounter between them on 10 June 2008.
25. It
was clear that the Claimant's visit to the school on 10 June 2008 had not been
welcomed by those responsible for running the school in the Claimant's absence.
Penny Bermingham felt undermined by the Claimant who had telephoned her on 8
June 2008 about issues involving the dance therapist teacher.
26. The Tribunal approached Penny Bermingham's
evidence with caution. Penny Bermingham complained that the Claimant had been
aggressive to her during the course of the telephone conversation of 8 June
2008 and she made subsequent allegations about the Claimant's aggressive
conduct towards her. Penny Bermingham alleged that on a number of occasions she
had become stressed and cried uncontrollably: following what she alleged had
amounted to the Claimant's aggressive and unacceptable behaviour towards her.
The Tribunal did not find Penny Bermingham a credible witness and we noted that
during his absence from the school the Claimant himself had raised concerns
about lack of support which he perceived had not been made available to Penny
Bermingham.
27. The Tribunal found that the Claimant was
not prepared to take a back seat during his recovery process and that there
were occasions when his interventions in relation to the running of the school
were unwelcome. However the Claimant himself did appear to have some insight
into the way in which his interventions could be perceived by those actively
involved with the school as evidenced in an e-mail he sent to Penny Bermingham
on 11 June 2008, page 301:
I felt the need to write to you following our
conversation yesterday. I wanted to say throughout my absence from school I
have been very confident that the three of you were going to do an excellent
job in running the school. Although I am not up to speed on everything that has
been happening I know you have worked very hard, rigorously addressing and
resolving important developmental issues for the school. I want to record my
thanks to you for taking on and rising to this challenge.
I
am sorry if you felt my intervention regarding the budget were undermining. I
can only say that my motivation was not to be critical but to resolve the
issues.
In relation to key issues relating to
strategic direction of the school and significant changes to the employment of
staff, I think in the current circumstances, it is good management practice and
would have been courteous to have consulted me before any action was taken. I
know that you have expressed a different view on this, but apart from the fact
on my return, I would only have to deal with the practical consequences of any
decision taken, I also feel this course of action could have a damaging impact
on the relationship of trust which needs to exist between us.
I have discussed my concerned with Cathy and
she has assured me that the budget will be set accurately and the other
concerns I have raised will be taken into account
I know that we both want to do what is in the
best interests of the school and the children and I am keen that we move
forward on that basis. As my absence from school started in a rather abrupt way
I would like us to plan a proper briefing process in relation to my return. As
I finish my treatment next week I should, hopefully, be feeling fairly normal
by the last two weeks of term so what might be a good idea is if the three of
you came round hear, either individually or collectively to do the briefing? -
I will provide the strawberries and cream."
28.
Penny Bermingham did not reply to the Claimant's e-mail or take up the
offer of engaging with the Claimant at the proposed meeting.
29. There was no hint of any problems with the
Claimant's conduct at the school on 10 June 2008 in an e-mail to the Claimant
from Cathy Twist dated the same day at 11.53 am.
"It's good to see you too. As you know I
was concerned whilst the school in the LA appreciate your support in school
matters whilst you are on sick leave, we do have a duty of care to you and your
health. Your main focus needs to be for you to receive treatment, you need to
rest and get better. As you are aware excellent interim arrangements have been
put into place to cover your absence and these staff are receiving full support
from the LA and dealing with matters - so please rest assured that the school
is in good hands.
As
you have a medical certificate, you are medically certificated to refrain from
work. The school/LA could be liable knowing that you are not well and allowing
you as an employee be on site. For these reasons you should not be on site as
an employee and you should not be contacted on school matters during your
sickness absence as this could be deemed as negligent in our duty of care to
you.
I understand your concerns about the GMT and
changes that might affect the strategic direction of the school. Please be
assured that I will ensure your concerns about these matters are addressed.
The acting Head Teacher and two acting
deputies are doing a good job in your absence and they have been well supported
by Ros Scherler, Liz Tennant and John Parr.
Please don't feel anxious about the school -
take this opportunity to rest properly and get well.
30. The Claimant met Claire Cobbold, Head of
Human Resources I and Mrs Marite, Chair of the Governing Body, at his home on
14 July 2008 about his return to work. Following the meeting there was a
referral to Occupational Health.
31.
On 18 July 2008 there was a handover meeting between the Claimant, the interim
team, including Penny Bermingham, John Parr, Liz Tennant, Cathy Twist and
Marite Streiger, Chair of the school's governors. On 21 July 2008 the Claimant
met the assistant heads including Penny Bermingham. On the same day 21 July
2008 the Claimant wrote an email to Penny Bermingham, which evidenced the
concerns which the Claimant felt about his relationship with her, page 235:
As you know, I was keen to discuss with you
our working relationship as you have not been in contact with me for over six
weeks. Initially, during my absence, we had exchanged text and telephone calls
at least once a week and then suddenly, without explanation these ceased. You
have explained this was because you have been advised not to discuss work
issues with me. Obviously what was upsetting for me was the unexplained removal
of support from a senior colleague at one of the most stressful times in my treatment.
The lack of any explanation response to my text and email was also
discourteous. I feel this has had an effect on our relationship, which was
evident in our meeting this morning.
I
am keen to look to the future and do what needs to be done to ensure that
school senior managers are a united team in the interest of the school. As you
are unhappy with my suggestions to achieve this, I am happy to consider any
suggestions from you as to how we can proceed to reach the same.
With regards to decisions and policy changes
taken I think the best course of action is if you can summarise any such
decisions in an email (e.g. first day procedures- personnel issues etc) and
then, as you took advice from the LA team on these matters, if necessary, I
will discuss them with them. I hope this addresses the concerns you raised with
me this morning.
As part of your professional development I
think it would be a valuable exercise for you to reflect upon the things you
have learnt in your acting role. I would like to have a discussion with you
about this during the autumn term.
Finally, I want to record my thanks for all
the hard work you have put in over the last few months. You have shown
commitment to both the school and the children.
32.
Penny Bermingham did not reply to the email. We found that by this
stage, Penny Bermingham for her own reasons was not prepared to engage with the
Claimant in any constructive way, an approach we considered to be both
unprofessional and discourteous to the Claimant who remained at that stage the
Head Teacher.
33. The Occupational Health report on the
Claimant dated 14 August 2008 pages 341-342, stated that the Claimant was
almost completely better and that he was fit for his own work. The report
recommended a phased return to his duties, and also stated that the DDA applied
to the Claimant's situation of diagnosed cancer.
34. The Claimant returned to his role as Head
Teacher on 1 September 2008, the start of the new term. On 5 September 2008 a
team building "away day" took place at the Royal Commonwealth Club.
Carol Ann White an external Management Consultant and Child Psychologist who
had been involved with the school for a number of years since July 2007 when
she was asked to run a half day session for a new leadership team which the
Claimant had then appointed. It was proposed that Carol Ann White would run a
session on 5 September 2008 with the management team to improve working
relationships and general communication.
35.
The Tribunal found that there was tension within the group during the away day
session and that Penny Bermingham failed to participate in any constructive
sense during the course of the day. Penny Bermingham was seen to be taking
copious notes which Carol Ann White considered were distracting her from the
purpose of the day and Carol Ann White pointed out to Penny Bermingham that her
writing and the time taking for such was distracting her from any involvement
in the meeting. Carol Ann White felt that Penny Bermingham had adopted an
approach which evidenced a degree of hostility and non-engagement. We found
Carol Ann White a credible witness and her account of Penny Bermingham's
conduct and non- engagement during the "away day" reinforced our
conclusions that Penny Bermingham resented the Claimant and was unhappy about
his return to the school.
36.
The Claimant himself was concerned about Penny Bermingham's conduct. We noted
that in her confidential report of the session on 5 September 2008, pages 3274
-3275 Carol Ann White recorded the following.
The
session was requested to consider how the senior leadership team working of the
six months absence of the Head Teacher. Concerns were raised by the Head
Teacher about communications, difficulties within the team and some staff
members. The school effectiveness would be expressly affected until these
issues were expressed.
The Head Teacher proposed a one day session
with the support of the Governing Body to look at these issues and development
for the new school year. The session was held off-site (at Royal Commonwealth
Club), Carol Ann White who has had previous contact with the school as the
external advisor for the Head Teachers performance as well as a half day
session with the newly appointed senior leadership team in July 2007.
37. On 9 September 2008 Nilesh Jethwa, head of
school finance, emailed the Claimant at page 347, about the budget. The email
included the following:
Thank you for first quarter accounts which I
received yesterday. Unfortunately they indicated a very precarious position and
I am concerned the school Is been in deficit in each of the three months April
- June 2008. This combines with the brought forward deficit of £251,665 shows
the current deficit standing at £338,682 at the end of June 2008. Our
projections based on current trends indicate deficit may reach over £400,000 by
March 2009.
Clearly this is unsustainable and I know in
your absence Penny, Liz Tennant and John Parr were working towards an in-year
balanced position for the school excluding the Children's Centre. I am not sure
if the plan is still on track.
38. The Claimant himself remained concerned
about the budget situation and attributed some of the problems to TOIL (a
system of time off in lieu), which had been operated at the school. A day
nursery grant for 2007/2008 of £121,000 had not been paid by the Respondent.
The Claimant also asked for help from John Parr and Ros Scherler with Penny
Bermingham.
39.
The Claimant had been made aware by members of staff that Penny Bermingham's
relationships with teachers and support staff had deteriorated during his
absence. The Claimant endeavoured to consider a constructive way forward rather
than dwelling on the past, as evidenced in an email to Cathy Twist dated 4
September 2008, page 345 in which he pointed out that his main concern had been
the nature of support for the school in his absence and the fact that by the
end of term there had been a major problem with regard to the relationship
between the three assistant heads. The Claimant's email continued.
It
clearly is not in the interests of the school to spend time on recriminations
and I don't want to do this. Life is too short As 1 am having to deal with the
consequence (with external consultant support consultant) of what has happened
in order to rebuild my leadership team I hope it is recognised that work also
needs to be done to rebuild trust in relationships between the authority and
myself.
As we agreed in the light of challenges to the
school to raise standards, it would be a good time to have a different SIP
input into the school to reinvigorate this process. You indicated that this
would happen in the Spring term.
I also want to re-emphasise how important I
think the development of a clear strategy for raising achievement for the
community schools, which face the most challenging circumstances, is. This
proposal is one of the outcome of the EAZ facilitated since last year and I
still think it is relevant particularly if school can fall in and out of
national projects on the basis of one year's result.
I
hope this helps to provide a clear way forward.
40. On 18 September 2008 the Claimant emailed
Nilesh Jethra proposing a meeting at the beginning of October 2008. In his
email the Claimant stated the following.
I report on the school's budget 07/08 that the
wrong carry over was sued for 06/07. The in year deficit figures for 07/08 was
£120,000 but the carry over was £63,000 rather than £8000. Although I am still
doing some work on this the worst case would have a deficit of £57,000 which
seems to have come from overspends on building work £20,000 and additional
costs associated with a high level of maternity leave amongst teachers and
support staff.
Having now looked at the current year I think
we should have a surplus of £35,000 + by the year end. Of more concern to
myself is the viability of the CC. (Children's Centre)
41. At the proposed meeting it was agreed that
deficit reported of £251,000 was correct. The Claimant stated that an
additional £140,000 would be provided, although Nilesh Jethwa was only aware of
£131,000.
42. On
17 October 2008 a meeting took place involving the Claimant, Mrs Marite
Stragier, the Chair of Governors, Cathy Twist, and Ms Dunipace, the
Respondent's director for Children's and Young People. Issues of schools
performance and foundation stage KS I and 2 were discussed. It was agreed that
a full local authority review of teaching and learning would take place, page
369.
43.
The local authority review took place on 5 & 6 November 2008 and its report
pages 381-387 was sent to the Claimant on 14 November 2008. The conclusion of
the report was that the school was failing to provide its pupils with an
acceptable standard of education.
44. The Claimant was very unhappy about the
report, because he considered that the local authority review would be a helpful
process and the report's conclusions were largely negative about the school.
45. It
was proposed that the report should be presented in draft form to the senior
management team on 12 November 2008 but the majority of teaching staff were
present at the feed-back meeting. The Tribunal accepted, the evidence of Ros
Scherler', the school's SIP that the Claimant was very angry about the report
and that he raised his voice and complained that the local authority had
treated him badly during his sickness absence. The Claimant blamed the local
authority for mis-managing the school whilst he was absent. The Claimant later
calmed down and accepted that the key issues raised in the review were ones
which the school needed to address.
46. It was the Claimant's case that the school
had been provided with insufficient support by the local authority during his
absence and the staff had been concerned about the way in which the school had
been managed during his absence. The Claimant also felt that the Respondent had
failed to show any adequate concern about his well-being. It was clear that a
number of members of staff felt demoralised by the review. The Claimant's
observations about the review are at pages 378-379.
47. On 18 November 2008 the Claimant was
informed by the school's office that Penny Bermingham was sick and going home.
The Claimant went to see her with Phyllis Dunipace. Penny Bermingham was
sorting out materials and files to take home with her and when asked how she
was, Penny Bermingham said that she was ill and needed to go home. Penny
Bermingham was in the process of downloading files from her desktop computer
onto a memory stick and the Claimant offered to help her. The Claimant informed
Phyllis Dunipace that she was going on a course on the following day.
48.
The Tribunal noted that on the same day Penny Bermingham had telephoned John
Parr and told him that the Claimant had taken away all the influence that she
had, and that she was finding it hard to cope and she had cried four times on
that day. Penny Bermingham showed no signs of distress when she was seen later
that morning by both the Claimant and Phyllis Dunipace.
49. After 'Penny Bermingham went home she
failed to follow the usual procedure which involved calling the school office
to report sickness absence and to contact the Head Teacher to sort out any
duties, meetings or work that needed to be covered. Penny Bermingham did
telephone the office but informed the office staff that she was attending a
course on 19 November. She telephoned in sick on 20 November and said she was
attending another course on 21 November 2008. The Claimant was concerned about
Penny Bermingham's absence and lack of communication with him, and on 23
November 2008 sent the following email to her:
Hope you've had a restful weekend and are
feeling better. If you are not well enough to come in tomorrow please give me a
call sometime during the day so we can have a chat...
50. The Claimant sent a copy of his email to
Penny Bermingham to Marite Straiger, the Chair of Governors. Penny Bermingham
failed to reply to the Claimant's email.
51. On 25 November 2008 the Claimant
telephoned Human Resources to ask for advice and support in relation to Penny
Bermingham's conduct and her lack of communication with him or with the chair
of Governors. The Claimant spoke to Mark Baron, senior schools HR officer and
according to an email which Mark Baron later sent, the Claimant had stated that
Penny Bermingham's relationship with one of the other assistant Head Teachers
seemed to be breaking down and suggested bringing in a consultant the school
had previously used to facilitate a leadership session to help resolve the
problem, page 416.
52. On the same day 25 November 2008 Penny
Bermingham wrote to Cathy Twist, page 402, in which she alleged that since the
Claimant's return a positive working relationship with the Claimant which she
had previously enjoyed had deteriorated and that she had been subjected to
on-going unacceptable, unreasonable and aggressive behaviour from the Claimant.
She alleged that she was fearful and intimidated by him, her health and
well-being had been affected with symptoms such as hair loss, lack of sleep,
shaking, crying and headaches. The Claimant enclosed notes which contained
allegations about what she described as the Claimant's unacceptable behaviour.
53. The notes, pages 403-411 provided accounts of
alleged incidents and communications involving her and the Claimant on 8 June
2008, 11 June 2008, 1 July 2008, 21 July 2008, 1 September 2008, 2 September
2008, 5 September 2008, 18 September 2008, 26 September 2008, 10 October 2008,
13 October 2008, 14 October 2008, 15 October 2008, 24 October 2008, 17 November
2008 and 18 November 2008. A number of the incidents recorded were contained in
correspondence and included cut and pasted entries from email which had passed
between her and the Claimant.
54.
On a number of occasions Penny Bermingham alleged that she had....cried
uncontrollably, and in relation to an incident on 13 October 2008, Penny
Bermingham described the Claimant's behaviour as the following:
“...He
was absolutely furious He was ashen with his temper and shaking. He sat with
his fist clenched. He shouted at me throughout the whole exchange. His level of
aggression was so great that I was frightened and thought he actually might hit
me...”
55.
The Tribunal did not find Penny Bermingham a credible witness and we were
unable to accept her accounts of the Claimant's conduct towards her. There was
a body of evidence before the Tribunal which showed that she had failed to
engage in any constructive sense with the Claimant to the point of being
unprofessional and discourteous, such as failing to respond to emails and two
invitations from the Claimant, and her conduct at the away day meeting We found
that she was resentful about the Claimant's return to the school as Head
Teacher, and the impact of such return on her. previous acting position We
found that the Claimant had been genuine in his endeavours to reach a
constructive working relationship with Penny Bermingham after his return and
had expressed his concerns about her conduct as evidenced by his telephone call
to Human Resources on 25 November 2008 We found the Claimant a credible witness
and we accepted his evidence that he had not been aggressive to Penny
Berrningham in the respects alleged by her or at all.
56
Credibility was a very significant issue at the Tribunal hearing and a number
of witnesses described Penny Bermingham as herself behaving in a similar,
manner to that of the Claimant as alleged by her Thus by way of example Jo
Redgate a teacher at the school in her witness statement stated the following:
However whilst acting Head Teacher Penny
subjected myself and many others to that treatment. I witnessed Penny to be
cruel during James' absence, humiliating staff and attempting to make them feel
insignificant and worthless In particular, I witnessed Penny bullied Jenny
Fraser, Virginia Harrop, Stephen Darrard and Yesmin Amin.
I consider myself to be a confident and bubbly
person but for a while Penny emotionally destroyed me.
57. Jo Redgate, whose evidence we accepted,
also described Penny Bermingham pulling faces when she talked about the
Claimant. We also heard from Jennifer Page, who was a support teacher at the
school until July 2009. Jennifer Page in her evidence to the Tribunal described
Penny Bermingham as not being supporting on the Claimant's return to the school
and that she repeatedly tried to undermine him. Penny Bermingham was also
observed rolling her eyes when the Claimant was talking. Apart from John Parr's
account of a telephone conversation with Penny Bermingham on 25 May 2008 in an
email to Kathy Twist, there was no independent evidence before the Tribunal
which supported Penny Bermingham's account that she was as distressed as she
maintained or that she had been crying, as she alleged, as a result of the
Claimant's behaviour towards her. When asked by the Tribunal at the hearing
whether anybody had seen her distressed or crying, Penny Bermingham was unable
to elaborate.
58. Cathy Twist referred Penny Bermingham's
letter about the Claimant's conduct to Clair Cobbold, head of schools Human
Resources. The letter was also referred to the Executive Director, CYPS who
invited the chair of Governors to see the letter. According to Cathy Twist's
evidence she was conscious that Penny Bermingham complaints about the
Claimant's behaviour had been corroborated in other communications which had
been received in relation to the Claimant's behaviour from Liz Tenant and from
John Parr. A decision was taken to suspend the Claimant pending an
investigation.
59. Marite Stragier the chair of Governors
received a telephone call from Clair Cobbold who told her to come into the
Respondent's offices the following day on 28 November 2008 because a complaint
had been made against the Claimant. Marite Stragier was provided with Penny
Berrningham's statement and both Kathy Twist and Clair Cobbold told Marite that
the two invitations which the Claimant had made were inappropriate. Marite
Stragier was informed it was necessary to suspend the Claimant.
60. We found that veiled threats were made to
Marite Stragier, namely that she was told to consider her own position, when
she proposed other measures such as mediation rather than suspension of the
Claimant. The Tribunal was also concerned by the fact that a letter suspending
the Claimant had already been typed before the meeting to consider the position
and Marite Stragier was told to sign the letter. We accepted Marite Stragier's
evidence that she felt that she had been put under a great pressure to sign the
suspension letter.
61. The Claimant was attending an informal
staff get together when Marite Stragier and Clare Cobbold arrived at the
school. The Claimant was asked to speak to them and he was told he was being
suspended because someone had accused him of bullying.
62.
The Claimant was provided with no detail of the allegations. The suspension
letter dated 28 November 2008, at pages 414-415 bulleted the following matters.
• Harassment, bullying and victimisation of
employees
•
Unacceptable, aggressive behaviour
•
Unprofessional conduct
•
Causing distress to members of staff through inappropriate management style
• Inconsistency
in the treatment of staff.
63.
The letter did not identify Penny Bermingham but referred to employees and
staff in the plural. The letter also informed the Claimant of the following:
You
must not make contact with any work colleagues or staff/members of the council,
Governors, pupils or parents at Henry Fawcett Primary School and Children
Centre only matters or matters in connection with your suspension or the
investigation. If you need to make contact, for whatever reason, with your work
colleagues, or any other employee, you must in the first instance telephone
Clair Cobbold Head of Schools Human Resources to obtain permission. However,
you may contact the employee if she or he is your recognised trade unionist
representative or work colleague who will be accompanying you at any subsequent
hearing or managerial meeting. You must make your own arrangements for, and
advise management immediately of, your decision on whom you wish to support you
at any future hearings or meeting.
You must not enter Henry Fawcett School and
Children Centre or enter any Lambeth Council office or education/college
buildings unless instructed by management to do so. If you are a resident or
service user of the Borough of Lambeth and are in receipt of council services,
such as housing, social care, education, or wish to use council facilities such
libraries, parks, leisure facilities, please notify Claire Cobbold immediately
so that she is aware that you need to have access to these premise"
64. The Tribunal found the letter prepared by
Clair Cobbold and signed by Marite Stragier, wholly draconian in its
restrictions of the Claimant's activities. We were driven to the conclusion
that the Claimant's suspension was far from representing a neutral act and was
used by the Respondent as a device to remove the Claimant from the school
against the background of the local authority's concerns about the school The
Tribunal noted that Phyllis Dunipace, the executive director at a subsequent
investigation hearing on 1 May 2009 when it was put to her that it was a rare
thing to suspend a Head Teacher, replied, page 4962.
Obviously
the main concern was related to the Head Teacher's behaviour which was taken
into account but I also had to take into account the schools improvement. We
had a termly voluntary meeting in which we would look at long term reports of
advisers in terms of what was going on in records. We would also examine Ofsted
report, financial information, audit reports, whether the school was in deficit.
65. The
Tribunal sitting as an industrial jury, was troubled by the hostility and lack
of any measured approach by the Respondent in its treatment of the Claimant.
The Claimant had been suspended following Penny Bermingham's allegations, and
we did not consider that there was any justifiable reason why an investigation
could not have followed as soon as reasonably possible, if it had been the case
that the Penny Bermingham allegations had been the sole reason for his
suspension. Although Penny Bermingham had reported ill, she had been attending
courses and we heard no evidence that she could not be contacted, particularly
in circumstances when she was actively seeking a position in an alternative
school. The Claimant was at home and any potential witness was available at the
school.
66. On behalf of the Respondent, Mrs
Fraser-Butlin submitted that the delay merely represented the sort of delay
which was inherent in the way in which local authorities acted, an explanation
which the Tribunal rejected. Further it was the Respondent's case that there
was delay because of the need to find the appropriate investigator of
sufficient seniority and experience. The Tribunal found the Respondent's
explanation unacceptable in circumstances of a suspension of a Head Teacher who
had been informed that he could not use the Respondent's libraries, parks,
leisure facilities without notifying Claire Cobbold immediately.
67.
The Respondent's Chief Executive, Christopher Ashton was responsible for
appointing the investigating officer, Mr Barry Gilhooly, to investigate the
allegations against the Claimant, to act as deputy Executive Director. The
appointment of Mr Gilhooly and the investigation process was not covered in Mr
Ashton's witness statement and there was no documentation in the Tribunal as to
how the appointment was made. In his oral evidence Mr Ashton stated that he
needed to find an investigator of sufficient seniority and experience. However
Mr Gilhooly was not available to investigate until mid-January 2009 because he
was on extended leave over the Christmas period and did not return to work
until 19 January 2009.
68. In his evidence to the Tribunal Christopher
Ashton stated that he was aware that Mr Gilhooly would be on leave until
mid-January 2009, but appeared to have no concerns about the delay and the
effect on the Claimant apart from saying to the Tribunal that Mr Gilhooly's
seniority meant that a "short delay" outweighed the extra time the
appointment of Mr Gilhooly would cause to the investigatory process.
69. The Tribunal found that the Respondent was
unconcerned about the delay and the effect of such delay on the Claimant and
that the Respondent had prioritised maintaining the Claimant's absence from the
school over any requirement to investigate the Penny Bermingham's allegations
as quickly as possible. We did not consider that the allegations were
complicated, and we found that there was no justification for any delay on the part
of the Respondent in carrying out an investigation into such allegations. We
were unable to accept that Mr Gilhooly was the only individual able to conduct
such an investigation.
70. The
Claimant himself was not provided with any details of the allegations until
nearly a month later when he received a letter dated 19 December 2008, on
Christmas Eve, pages 436-437. The letter included the following:
I apologise for the delay in providing you
with an update on implementation and progress of the investigation. The delay
was due to the necessity to meet with the chair of Governors or deputy chair of
Governors on a number of occasions to agree the most appropriate way to
expedite matters. You will be aware that there are a number of Governors on the
Governing body of Henry Fawcett School and Children Centre eligible to be
involved in this process is limited. The Governing body have therefore
requested local authority undertake the investigation of these matters and it
is then anticipated dependant on the outcome of the investigation that there
will be sufficient governors who are impartial who will be in a position to
hear any potential case and any subsequent appeal.
In accordance with the disciplinary procedure
(copy of which was provided to you with your suspension letter), the
investigating officers will be Barry Gilhooly, assistant director, Inclusion
and Mary White, Human Resources Consultant. They will be contacting you early
in the New Year to arrange dates for the investigation meeting.
71. The
Tribunal considered that Clair Cobbold's letter was wholly disingenuous. The
Tribunal was unable to understand the explanation for the delay, namely that it
was due to the necessity to meet with the chair of Governors or deputy chair of
Governors on a number of occasions to agree the most appropriate way to
expedite matters. The only way to expedite matters was, the Tribunal considered
to progress the investigation as quickly as possible. The reference to
contacting the Claimant early in the New Year, in circumstances where Mr
Gilhooly was on extended leave until 19 January 2009, was again, we considered,
disingenuous.
72. The Claimant clearly enjoyed a great deal
of support from members of staff at the school. On 23 December 2008, Claire
Cobbold emailed the Respondent's legal team to inform them that she had
received a petition from staff and letters of support for the Claimant. On 23
December 2008 the Chief internal auditor, Mohamed Khan wrote the following
email to Phyllis Dunipace, page 444 stating the following.
We received a whistle blowing call from two
teachers at Henry Fawcett Primary School regarding the suspension of the Head
Teacher following allegations of bullying and gross misconduct against one of
the assistant Head Teachers, Penny Bermingham. I met with the two teachers
today and they have said that they and some of the other teachers feel the full
investigation is not taking place and are willing to provide some information,
in support of the Head Teacher, but I have not been contacted by anyone. They
are claiming that:
•
they knew PB (Penny Bermingham) quite well and hold the view that she is
fabricating her claims.
• PB objected when she was overlooked for the
acting HT job at the time of the HT's sickness absence.
• PB made representation to CYPS and was given
the acting Head Teacher's job.
• CYPS met with one of the Governors where it
was decided to take action against the HT.
• Whilst the HT was away sick, the school was
reviewed by CYPS. The review commended
PB although the school was under performing.
•
The HT leading the review is now the acting HT.
I have not looked into the veracity of their
claims but can sense they need some assurance that the claims against the Head
Teacher can be supported and the process being applied is a fair one. I'd be
grateful for your views.
73. The Tribunal considered that by the date
of Mohamed Khan's email, namely 23 December 2008 there was information
available to the Respondent to suggest that Penny Bermingham’s allegations
might not have been well-founded. The Tribunal considered that notwithstanding
the absence of any active progress in the investigation before such date
Mohamed Khan's email ought to have alerted the Respondent about the necessity
to progress the allegations as quickly as possible However even making
allowances for the Christmas period the Tribunal found that the Respondent made
no endeavours to take the matter further and it was not until 8 January 2009
that the Claimant was provided with any particulars of the allegations against
him.
74.
In a letter dated 8 January 2009 Mary White, Human Resources Consultant wrote
to the Claimant, pages 462-463 informing the Claimant that both she and Barry
Gilhooly would be the investigating officers and the Claimant was requested to
attend a disciplinary investigation meeting on 29 January 20% more than two
months after the Claimant's suspension. The letter continued:
"The
disciplinary investigation is being held following:
(i)
allegations made
by Penny Bermingham, assistant Head Teacher, Henry Fawcett Primary School dated
25 November 2008. A copy of these allegations are enclosed for your
information.
(ii)
allegations made
in the body of a document dated 21 November 2008 received by John Parr, Head
Teacher Ashmole Primary School, he states:
The
chair of Governors rang me to talk about the issues with the budget. She was
surprised about level spending the staffing cost of the school. She said that
the behaviour that James Walker had exhibited towards Liz was not unusual, that
if he was in a meeting and felt threatened or questioned he would become
hostile and bullying, this character trait was borne out by descriptions from
members of staff as well as from experience.
James
rang me on two separate occasions outside of school hours during this period.
He was incredibly angry on both occasions. Both instances concerned the budget:
he was incredibly cross that we had suggested that services to school should be
cut, (perhaps this is because the school did not have the money to pay for
them). These services were delivered by non-contracted providers. James Walker
was cross because these providers have mortgage to pay, that they were friends
of his and that they were loyal to the school. He was reminded that he needed
to deliver a balanced budget and his staffing costs were incredibly high (92%):
he felt that he would prefer to let teaching assistants go (who were
contracted,) rather than a dance therapist (you seem to deliver the lion share
of support for children with behaviour issues).
75.
The contents of Mary White's letter which included allegations about the school
budget, allegations entirely separate from the Penny Bermingham's allegations,
again reinforced the Tribunal's conclusions that the Claimant's suspension had
been for reasons other than the Penny Bermingham's allegation. John Parr
himself was very upset that his observations about the Claimant had been used
as allegations against the Claimant by the Respondent. In a letter to Mary
White and Barry Gilhooly dated 20 January 2009, pages 471-474 John Parr
concluded his letter with the following:
Finally,
I feel that things have been managed badly over the past few weeks by HR -
surely an allegation should be made by an individual and not on someone else's
behalf? I have not agreed at any point to making an allegation about James. I
was not sent a copy of the "allegation" letter that was dated 15
January until 19 January after it had been sent out to James and was informed
that this could not be recalled. This I feel has compromised by position yet
again and may call into question my integrity as a head and a chair of heads
council. I am incredibly unhappy about the way the situation has been handled
and would like this noted.
This current situation seems to have taken
precedent over what needs to be investigated: whether the leadership at Henry
Fawcett is adequate and appropriate and whether it can help the school provide
its pupils with the education and life skills they deserve.
76. In
a letter to the Claimant dated 7 January 2009 Claire Cobbold stated that she
had reviewed the terms of the Claimant's suspension in relation to his movement
around the Borough. The letter informed the Claimant that he was able to move
around the Borough and go about his day-to-day business apart from attending
the work place, but that he must not approach work colleagues or other
potential witnesses in relation to subject matter of the investigation. The
Tribunal noted that there was no apology or any acceptance on the part of Clair
Cobbold in her letter that the restrictions on the Claimant about using public
libraries and parks etc without informing Claire Cobbold immediately, had been
on any view wholly inappropriate and probably unlawful The Tribunal found that
throughout the whole process the Respondent appeared to have adopted an
approach towards the Claimant which bordered callousness.
77.
It was not until 29 January 2009 that Penny Bermingham was interviewed, pages
2950-2957. The record of the interview did not reflect an approach on the part
of Barry Gilhooly which in any way tested Penny Bermingham's account and he
directed very few questions to Penny Bermingham.
78. For reasons which were wholly unexplained
at the Tribunal hearing none of the teachers at the school were investigated
who might have thrown some Light upon the allegations, such as the assistant
Head Teachers who had been closely involved with Penny Bermingham during the
relevant period, namely Emma Bilsden and Yasmin Ahmed.
79. On 4 February 2009 Matt Britt, the
school's SIP (from November 2008) and interim Head Teacher, and Marite Stragier
were interviewed .We were surprised that Matt Britt was interviewed so early in
circumstances where Penny Bermingham herself had never made any allegation that
he had witnessed any of the matters which founded Penny Bermingham's
allegations against the Claimant.
80. Mary White who interviewed Matt Britt
appeared to accept the validity of the allegations asked Britt if he himself
had felt personally threatened. Matt Britt, who throughout the entire process
exhibited a degree of bias hostility towards the Claimant, we considered
immoderate, replied his behaviour was abhorrent I did not feel threatened by James
but his manner and way of presenting was erratic.
81. Mary White failed to ask any direct
questions about the Penny Bermingham's allegations but allowed Matthew Britt
scope to vent damaging and potentially prejudicial allegations against the
Claimant.
82. The Tribunal noted that there was no
reference to or any understanding by the Respondent of the Claimant's very
serious illness operation and subsequent chemotherapy during the course of the
previous year. It appeared to the Tribunal that the investigation process
amounted to a fishing exercise which was focussed on obtaining the most
damaging information about the Claimant, whether such, information was
justified or not. The Respondent knew or ought to have known that the Claimant
himself had voiced concerns about his relationship with Penny Bermingham, a
whistle blowing email had been raised about Penny Bermingham's possible motives
before Christmas 2008, and yet the investigation proceeded on the basis, as we
found, that the allegations against the Claimant were wholly valid.
83.
During the course of her interview with Barry Gilhooly, Marite Stragier,
was only asked about the Claimant's relationship and behaviour with her. We
note that Marite Stragier concluded her interview with the following.
Suspension was a huge step to take because it
was someone words against another. At the meeting (Cathy Twist and Clair
Cobbold), I was told that suspension was the only way to deal with that matter
to ensure both parties would be protected. It should be seen as a neutral act.
James looked at me as if I had betrayed him and I felt that way.
This investigation is taking too long! I feel
that I was bullied by local authority to quit as chair (she had a telephone
conversation with Cathy Twist). Local authority has no right to ask any
Governors to step down. A meeting was held with the Governing body where I was
asked if I should step down but nobody wanted me to do so.
84. In February 2009 a report was produced on
the school by Mr Tom Walker, pages 1720-1748. According to the evidence of
Christopher Ashton, Phyllis Dunipace had commissioned the report but although
Phyllis Dunipace on the evidence had close involvement with the matters
involving the Claimant she was not called to give evidence before the Tribunal.
Tom Walker's report recommended the following actions:
1) Aim for a compromise agreement with the
Head Teacher. If a compromise agreement is not possible,
2)
send report to the Governing body requesting consideration of taking
action against Head Teacher on grounds of capability or misconduct.
If the Governing body are unwilling to act
against the Head Teacher, the local should reserve the right to replace the
Governing body with an Interim Executive Body (I.E.B), or to withdraw delegated
budget from Governing body. It is, however, not possible for local authority to
currently appoint an I.E.B and withdraw delegation of the budget.
85. The Tribunal noted that the maker of the
report, Mr Tom Walker, had not approached the Claimant about any of the issues
raised in the report, notwithstanding the fact that the Claimant had been the
Head Teacher at the school for the previous nine years.
86.
Tom Walker's report was adopted by the senior leadership team as the rationale
for issuing a section 60 notice under section 60 of the Education and
Inspection's Act 2006 which was a notice issued to the Governing body.
87. Christopher Ashton spoke to the Claimant's Union
Representative, Etain Kilbaine and offered the Claimant a year's pay, early
retirement and a reference which the Claimant described as bland. We found that
the proposal to the Claimant was that if it was not accepted by him, the
Respondent local authority would then institute a section 60 notice against the
Schools Governing body. The Claimant was given 48 hours to make a decision.
88. In an email from Christopher to Etain
Kilbaine dated 25 February 2009 Christopher Ashton stated the following.
Monday
23 February the LA will take the action that is necessary to ensure that rapid
improvement is made at the school tomorrow. Therefore the opportunity for James
to explore mutually agreed termination with LA effectively runs out tomorrow as
the concerns that the LA has about the school will be formally drawn to the
attention of the Governors by way of a warning notice issued under section
60(2) of the Education and Inspections Act. As you know this notice has to be
copied to Ofsted and the SIP. Therefore once this notice is issued it can no
longer be treated as a confidential matter and is likely to impact on any
possible future settlement between James and the LA.
Additionally
a report will be written to the Chair of Governors under the provisions of
sections 35 and 36 of the Education Act 2002 and Regulation 5 of the School
Staff (England) Regulations 2003 setting out the LA's concerns about the
performance of James as Head Teacher, asking the chair to explain to the LA as
to what action she will take to address the performance and shortcomings that
had been identified by the LA. This is likely to lead to a further disciplinary
investigation.
I look forward to a reply today.
89. On 26 February 2009 in a letter to Marite
Stragier the Chair of the Governing body, Phyllis Dunipace, issued a section 60
notice. On the same date a Regulation 5 notice under the School Staff (England)
Regulations 2003 was issued by Phyllis Dunipace to Marite Stragier, pages
526-529. The Regulation 5 notice was highly critical of the Claimant and
included the following observation by Phyllis Dunipace.
The
Head Teacher is currently suspended from the school following an allegation
which if are founded could constitute gross misconduct and could lead to his
dismissal. We have considerable evidence that the Head Teacher is
systematically breaking the conditions of his suspension. We also have evidence
that during the period of his absence on sick leave, the actions taken by the
acting Head Teacher were undermined by the presence of the Head Teacher and the
communication between the Head Teacher and the Governing body, although it is
not my intention to address this matter here.
90. In the absence of Phyllis Dunipace at the
hearing the Tribunal was not provided with an explanation of what Phyllis
Dunipace meant by her reference to the Claimant's systematically breaking the
conditions of his suspension, apart from Christopher Ashton in answer to a
question from the Tribunal saying in very general terms that the Claimant had
contacted teachers at the school. The Tribunal was again struck by the level of
the Respondent's hostility towards the Claimant, its employee, at a time when
he was on suspension against the background of his very serious illness and the
fact that at that stage had not been interviewed, nor had been approached or
asked about any of the concerns raised in both the section 60 notice and the
Regulation 5 letter.
91.
On 27 February 2009 the Claimant wrote to Marite Stragier, page 532 stating
that he wished to institute a grievance under the Schools Grievance Procedure
and under the Disability Discrimination Act. The Claimant stated he had been
subject to harassment, victimisation and bullying, acts of discrimination under
the DDA, acts which were seriously in breach of the local authority staff code,
policies and procedures and breaches of the local authority's duty of care to
him as an employee. The Claimant prepared a statement of grievance, pages
582-599. The Claimant raised issues relating to his illness, his treatment in relation
to his suspension and a failure to use positive and timely management action to
resolve the conflict within the leadership team.
92. In March 2009 there were communications
between the Claimant, Phyllis Dunipace and Marite Streiger to try to work out a
procedure to investigate the claims and grievances. The Claimant was not happy
about the chair of Governors and Phyllis Dunipace being involved in any
investigation process regarding his grievances and circumstances where they had
been identified by the Claimant in his grievances, and accordingly he submitted
his grievance to the Chief Executive of the Respondent, Derrick Anderson.
93. On
1 April 2009 Derrick Anderson wrote the following to the Claimant, on page 619:
I acknowledge that you've registered a
grievance against Phyllis Dunipace the Chief Executive Director for Children
and Young Persons Service and that other CYPS officers. I therefore appointed
Mike Suarez, Executive Director of Finance and Resources to investigate your
grievance. Please be aware that Mr Suarez will be on leave until after the
Easter break. He will make contact with you upon his return to discuss the
contents of your letter and enclosures.
With regard to the grievance that you have
raised against the chair of Governors of Henry Fawcett School, this is a matter
for the Governing body to investigate. Grievances against chair of Governors
need to be lodged with the clerk of the Governing body not with the local
authority. As I understand the clerk is on leave for a number of weeks, you may
wish to send your letter to him care of myself and I will ensure that in the
clerks' absence Governors services will take the appropriate action to ensure
that this matter is dealt with by the Governing body as soon as possible.
You refer in your letter to the investigation
that is underway into grievances raised by Penny Bermingham. This is an
investigation initiated by the Governing body of the school and you should
raise this question with the Governing body in your letter to the clerk of
Governors.
94. On
1 April 2009 the Claimant had raised an additional set of grievances against
Phyllis Dunipace, namely that on 24 March 2009 she had given formal notice that
she was going to implement section 60 Notice against the school. The further grievances
involved the following, continuation of direct harassment and bullying by
Phyllis Dunipace, taking action to implement section 60 Notice, a failure by
Phyllis Dunipace to allow him as the school Head Teacher to contribute in any
way to section 60 process and a continuing failure by Phyllis Dunipace to
ensure that statements made about the school in section 60 Notice were accurate
and had taken account of all factors. The Claimant alleged there had been a
specific failure to refer to his illness and the fact that the DDA applied to
him.
95. On 9 April 2009 the Claimant wrote to Mr
Derrick Anderson the Respondent's Chief Executive regarding confusion about the
primacy of the investigations, namely whether the allegations in respect of
which the Claimant was suspended or the Claimant's own allegations should be
considered first. In his letter, pages 644-645 the Claimant stated the
following:
As stated previously I am willing and ready to
respond to the allegations made by Penny Bermingham and I have now been waiting
for over four months to have the opportunity to do that. My highlighting of
issues surrounding the primacy of the grievances should not in any way be
viewed as reticence on my part. A meeting to enable me to respond to the Penny
Bermingham allegations has now been arranged for 23 April 2009 and I have
confirmed I will attend with my union representative on that date, unless I
hear otherwise.
I
am unsure as to how I can clarify my willingness to attend the meeting which
has been schedule any more than I have done already. I do expect to attend the
meeting but have simply asked that others consider the primacy of the
grievances and take steps to avoid repeating some of the issues already
highlighted in my grievances. Finally, it cannot be appropriate for me to be
charged with the responsibility for making a decision on this issue on behalf
of the Governors.
96. On the same day the Claimant was informed
by email, page 646, that the disciplinary investigation team would be
suspending their investigations until the Claimant's grievances had been
investigated as a matter of urgency.
97. On 21 April 2009 Derrick Anderson wrote to
the Claimant stating that he did not believe that the schools Grievance
Procedure permitted the Claimant to complain about officers within the Council
who were not in his line manager. Derrick Anderson stated that he had decided
to treat the Claimant's concerns about Ms Phyllis Dunipace as a complaint and
that it would be investigated as such.
98.
The consequence of the delay in progressing the Penny Bermingham investigation
meant that the Claimant remained suspended. The Tribunal was again driven to
the conclusion that notwithstanding the existence of the employment
relationship between the Claimant and the Respondent, the Respondent was
determined on continuing with a suspension which was designed to be short term,
and which during the course of the hearing the Respondent's witnesses
repeatedly and unconvincingly described as a 'neutral act'.
99.
The Claimant had not been permitted to have access to his office since his
suspension. The Claimant kept a significant number of documents in filing
cabinets which covered a whole range of management matters. The Claimant
requested access to his office and Carol Palmer, HR Advisor, agreed to allow
the Claimant to visit, the school on 20 April 2009. On 16 April 2009 the
Claimant sent Carol Palmer a letter providing her with a list of files he would
like access to when he visited the School, page.654.
100.
On his arrival at the school the Claimant was not allowed to enter his office.
About a month before the Claimant's visit, Matt Britt had reorganised the
office without any reference to the Claimant. The Tribunal was concerned that
the Claimant who was still Head Teacher, although suspended, had not been
involved in any process regarding the reorganisation of his office and we could
only conclude that the reorganisation had taken place because the Respondent
had not anticipated that the Claimant would be returning to the school. Matt
Britt was very critical of the state of the office describing a haphazard
tiling system in his oral evidence to the Tribunal as 'a disorganised filing
system which looked like a dysfunctional filing system which reflected on
everything we saw in the school.'
101. Matt Britt accepted that nine filing
cabinets were cleared and that material was put into black bin bags and removed
by John Marr, the school premises officer. It was Matt Britt's evidence the
number of papers removed had not involved anything which would have been
required to have been stored for a set period of time.
102. We found Matt Britt an unreliable witness
and we were unable to accept his evidence. We accepted the Claimant's evidence
that there were a number of documents which he required and which had been kept
in his office. The Tribunal noted that notwithstanding the fact that the office
had been cleared none of the Claimant's own personal items such as family
photographs, books and a candlestick had been returned to the Claimant.
According to Matt Britt he had been advised by Carol Palmer that it was not
appropriate to send materials directly to the Claimant at the time. It appeared
to the Tribunal that the Claimant had effectively being placed in a state of
total isolation from his workplace and that the Respondent, before the
completion of even the investigation state of the disciplinary process, was
failing to treat the Claimant as an individual, with whom it had an employment
relationship.
103.
We are confirmed in our conclusion by the evidence of Mr John Marr, the
school's Premises Officer, who challenged Matt Britt's intention to clear the
Claimant's office, when he asked Matt Britt,
are you sure you want this doing?"
Matt
Britt replied by saying,
he
won't be back.
104.
The Tribunal was further concerned by John Marr's account of Matt Britt asking
him whether he had got on all right with the Claimant and that when Matt Britt
had stated that the Claimant had not allowed him to take annual leave at the
start of the school term one year, Matt Britt stated that the Claimant's
response sounded like bullying and that he thought he should make a formal
complaint about such an incident. John Marr stated that he would not describe
the matter as bullying.
105.
In a later investigatory interview in September 2009 it was put to John Marr by
the interviewers, Jason Preece and Mary White that he had been bullied by the
Claimant.
106. Further evidence of Matt Britt's
hostility towards the Claimant occurred during the course of an investigatory
interview with Matt Butt on 24 July 2009, page 4093, Matt Britt stated,
No
one had been able to stand up to James Walker, he was a horrible, psychological
bully. John Marr had to go off sick and the chair of governors was virtually
bullied.
107.
A little further on Matt Britt continued with the following:
There
was an impact on the children's education. They were educated in a filthy dump,
unsafe environment and their lives were put at risk. James Walker was negligent
in the highest possible way. He ignored health and safety, CRB requirements and
regulations. It will take three to five years to put the school right.
108.
In his evidence which Matt Britt gave to the Tribunal in December 2010 he
described the present success of the school and the school as having a safe and
clean environment. The Tribunal considered that in the light of Matt Britt's
oral evidence that in December 2010 the school was providing a safe and clean
environment, his observation that in July 2009, namely that it would take three
to five years to put the school right, was clearly an exaggeration, which was
intended to discredit the Claimant. We considered that Matt Britt was a witness
whose hostility to the Claimant undermined his credibility as a witness of
truth.
109.
Following his visit to the school the Claimant wrote to Carol Palmer on 21
April 2009 setting out a list of missing documents he required. The
Respondent's witnesses provided no explanation as to why the Claimant as Head
Teacher had not been allowed to visit his office although Matt Britt towards
the end of his oral evidence did concede that with hindsight he should have
involved the Claimant in the clearing process he had adopted.
110. Once the governors had received the
'Regulation 5' letter they asked for support from the Respondent to devise an
action plan. However the governors' replies and proposals to the matters raised
in the section 60 notice were rejected by the Local Authority as being
inadequate and the Respondent Local Authority requested that the Secretary of
State allow an interim Executive Board to be set up. An Interim Executive Board
of Governors was established (IEB) in May 2009. Pat Petch became chair of the
IEB.
111. In about May or June 2009 Jason Preece
was appointed to lead an investigation into a number of allegations against the
Claimant under the Claimant's disciplinary procedure. The IEB of the school had
asked the Respondent Local Authority to undertake an investigation into a
number of concerns relating to the conduct and performance of the Claimant in
his role as Head Teacher.
112. It was not until 2 July 2009 that Pat
Petch the chair of the IEB wrote to the Claimant informing him of the
following: The interim Executive Board has a number of concerns arising out of
the Executive Director's letter of 26 February 2009. The Interim Executive
Board has concerns about your management of Henry Fawcett Primary School and
Children's Centre including issues relating to:
•
breaches of health and safety requirements;
• serious mismanagement and misrepresentation
of the school's financial position to the Governing Body and Local Authority;
• the implementation of a system that
inadequately recorded and verified and resulted in unacceptable staff absences
during the school day and unacceptable costs to the school.
• IEB also has concerns about serious breaches
in relation to Criminal Records checks for staff.
These
matters all fall within the schools disciplinary Rules and Procedure adopted by
the Interim Executive Board and the former Governing Body of Henry Fawcett
Primary School and Children's Centre.
As you are aware the ongoing investigations
has been conducted into the allegations of bullying and harassment being
undertaken by Mary White and Barry Gilhooly has been put on hold pending the
conclusion of the investigation into your grievance against officers within the
Local Authority.
Since these allegations, if proven, could
constitute gross misconduct under the schools Disciplinary Procedure and Rules
you will remain suspended from duty on your normal rate of pay whilst a
thorough investigation takes place. I must emphasise that this is a
precautionary suspension pending investigation into the matter. The suspension
itself does not constitute disciplinary action and does not mean that your case
has already been judged. Every effort will be made to complete the
investigation as quickly as possible. If at any stage during or at the end of
the investigation, where applicable, at any stage during the disciplinary
process it is considered that the suspension should be lifted you shall be
informed immediately. Following the completion of this investigation you shall
be advised whether or not a disciplinary hearing will take place.
113.
The allegations against the Claimant were very different in nature from an
allegation of bullying and harassment against a member of staff at the school.
The Tribunal did not consider that such allegations justified suspension having
regard to the Respondent's disciplinary rules.
114.
Paragraph 5.1 of the Respondent's Management Guidance – Disciplinary Procedure,
page 2183, under the heading "suspension" provides:
Suspension
of staff is based on the principle of the employee’s presence put own personal
or others or the Council at risk, or to undermine the investigation. Charges of
gross misconduct are based on the principal that the action is such as to
warrant summary dismissal. In many cases
of alleged gross misconduct it therefore may be prudent to suspend, but it is
not essential.
The criteria in the first sentence is the
important test.
115. The Tribunal did not consider that the
presence of the Claimant could have undermined an investigation into CRB
checks, health and safety matters and the allegations relating to the budget.
The allegations were essentially allegations of the financial mismanagement and
failures on the part of the Claimant to apply adequately or at all staff Codes
of Conduct and serious negligence in the performance of duties.
116. On 8 May 2009 the Claimant was
interviewed by Mike Suarez in relation to his grievance against Phyllis
Dunipace. The Tribunal noted that in his investigatory meeting with Mike Suarez
regarding his grievance against Phyllis Dunipace, the Claimant under the
heading attendees was described as an ex-employee, page 729.
117. On 21 May 2009 the Claimant submitted
further complaints to Mike Suarez pages 705 to 707, relating to delays in the
process, a lack of even handedness and denial of access to his office. On 26
May 2009 the Claimant presented his first claim form to the Tribunal in which
he made complaints of unlawful disability discrimination founded upon
allegations of his treatment by the Respondent since he had been diagnosed with
cancer.
118. When the Matt Britt took over the role of
interim Head Teacher at Henry Fawcett School after the Claimant's suspension,
Matt Britt identified issues relating to health and safety requirements, CRB
requirements and a system of TOIL which had been operated in the school. Also
testing, electrical wiring testing and portable appliance testing had not been
carried out. The sum of £25,000 was spent in putting testing into place and
undertaking the necessary work.
119. There was a Premises Officer employed at
the School, John Marr, and a Facilities Manager, Mike James. The Claimant had
arranged for work to be done involving the resurfacing of the roof and
replacing the school's windows.
120.
In view of our reservations about Mall Britt's credibility as a witness we
found it difficult to assess the significance or seriousness of the
shortcomings or concerns identified by Matt Britt or whether any shortcomings
uncovered were unique to Henry Fawcett School or whether other schools in
Lambeth, had they been subjected to the same scrutiny, might have revealed
matters of a similar nature.
121.
In relation to the TOIL, the TOIL system operated in the school had involved
members of staff working extra hours and having time off in lieu. A report was
undertaken into the TOIL issue dated 16 March 2009, pages 337 - 338. The report
under the heading "Principals of Toil" stated the following:
Time
off in lieu - TOIL hours essentially overtime hours which employees may receive
time off work instead of payment.
It
is recognised there will be occasions when employees will work beyond normal
hours. Although it is not generally Lambeth's policy to operate TOIL it is up
to the individual school/business units to organise this. TOIL needs to be
operated within the contingency of the service and should not in any way impact
on service delivery. It can be accumulated and should be taken subject to
strict record keeping and must be agreed by Head Teachers/Line Managers.
122.
The report identified that 419 hours had been accrued by support staff over a
period of time from 2007 which equated to £6,300 costed at a flat rate, not
overtime rates. There had been a trial system operated with the Claimant's
approval, and we accepted the Claimant's evidence that Carol Palmer had
sanctioned the trial system. In response to questions the Claimant gave in
relation to the disciplinary investigation, the Claimant stated the following
page 358:
Before establishing the trial system I
contacted the school's HR manager, Carol Palmer for advice on the merits of the
proposal and for details of other schools offering TOIL. She was not aware of
other schools offering the system, but she reassured me that she could see no
reason why it should not be set up and she asked me to let her have the details
once it was established. I have since discovered that a number of other Lambeth
schools have a similar scheme in place. The scheme we set up by the support
staff only proved to have a number of benefits...”
123.
In relation to the CRB requirements the Claimant accepted that he was
responsible for CRB checks ultimately. It was the Claimant's case that there
was a system in place for checking, which involved asking staff to put in CRB
applications when they became due and the Claimant alleged that the system had
been vetted by Ofsted.
124. It was the Claimant's case that he had
not been informed of any concerns relating to CRB checks when he returned to
work and that concerns only became an issue when he had refused a compromise
offer and had put in his grievance, the Claimant also maintained that it had
been his intention to review procedures before going on sick leave C1/6.
125. An issue surfaced in relation to the
Claimant's appointment of a Ms Chukukere to the position of teacher at the
school. In 1990 Ms Chukukere had been convicted of serious criminal offences
including false imprisonment and possession of a firearm. Ms Chukukere was
sentenced to two sentences of imprisonment which were suspended. Ms Chukukere
had been invited to apply for a position at the school by the then Deputy Head
Teacher, Mr Tom Hindley who was aware of her convictions.
126. There was a letter in the Tribunal
bundle, page 4436A addressed to Ms Chukukere from a Mrs M Dewar of the Teachers
Misconduct Team which stated that on the basis of her convictions the Secretary
of State would not consider barring her from employment as a teacher. The
Claimant had approved the appointment of Ms Chukukere and was fully aware of
her background. The Claimant maintained that he had not obtained a CRB check
before appointing Ms Chukukere but the regulations allowed this and there was a
CRB in place. Ms Chukukere had worked in another Lambeth school as leader of
that school's play scheme. The governing body of that school had checked with
Ofsted and Ofsted said this was appropriate.
127. The Tribunal considered that the Claimant
had made a judgment call which was within his discretion to make as Head
Teacher and that before approving the appointment of Ms Chukukere he had been
fully aware of her background.
128. In relation to another teacher who had a
previous conviction the Claimant maintained that he was not in charge of
supervising children and that he had felt that there was a philosophy in
Lambeth to give people a second chance.
129. In relation to health and safety matters
the Claimant had appointed a Facilities Manager on a fixed term contract in
2007, Cl/6. In relation to fixed wiring test the Claimant maintained that he
did not think that there were any fixed wiring tests and in reply to a question
put to him in cross examination the Tribunal considered that there was some
force to his reply namely that a large amount of money and a huge effort had
been put in to identify things he could be accused of.
130. On 18 June 2009 the Claimant was informed
by letter from Mike Suarez, pages 742-743 that his complaints against Phyllis
Dunipace had not been upheld. On 24 June 2009 the Claimant wrote to Derrick
Anson, the Respondent's chief executive complaining about Mike Suarez's
investigation of his grievances and the quality of his investigation which had
taken place. The Claimant also complained that his grievances had been treated
as a complaint and referred to the fact that his union representative had
stated to Mike Suarez on 8 May 2009 that his grievances needed to be viewed and
investigated as grievances.
131. On 2 July 2009 the IEB wrote to the
Claimant, page 3287 to 3289 informing him that it had serious concerns about
his management of the school and the Children's Centre including issues
relating to:
.
serious breaches of health and safety requirements;
• serious financial mismanagement and
misrepresentations of the school's financial position of the governing body and
the Local Authority
• the implementation of a system of TOIL that
was inadequately recorded and verified and resulted in unacceptable staff
absences during a school day and unacceptable costs to the school;
• about serious breaches in relation to CRB
checks for staff.
132. The Claimant was informed that the
matters should be investigated under the school's Disciplinary Procedure and
that Jason Preece, Assistant Director Change Management and Mary White, HR
consultant had been appointed to undertake the investigation. The letter also
informed the Claimant that the ongoing disciplinary investigation into the
allegations of bullying and harassment (Penny Bermingham allegation) had been
put on hold pending the conclusion of the investigation into the Claimant's
grievances against officers within the Local Authority.
133. On 10 July 2009 there was a grievance
investigation meeting between the Claimant and Sandra Morrison, Investigating
Manager, pages 822-835. On 20 August 2009 the Claimant was informed by letter
to him from Sandra Morrison, pages 861-868 that his complaints had not been
upheld.
134. We noted that in his letter to Derek
Anderson of 7 July 2009, pages 793-796 the Claimant pointed out the following:
Given that Phyllis Dunipace had already acted
upon an assumption that the criticisms/allegations about my performance are
true, by writing to the Education Secretary Ofsted it seems odd that there is
to be an investigation at this point. At the time I contested the validity of
the documents written by Phyllis Dunipace and argued that they contained
numerous inaccuracies. However I was denied an opportunity to challenge the
misinformation or to answer the accusations prior to the issuing of these
documents and to advise the governing body. Thus effectively, I have already
been found "guilty", or otherwise submission of the performance
letter and section 60 process would not have happened. Furthermore it seems
concerning that you would expect the Secretary of State to grant the section 60
notice without Lambeth having already conducted a thorough investigation and
allow those involved to have a voice to choose instead to conduct the investigation
quite sometime after the event seems strange and somewhat irregular. In the
events leading up to Pat Petch's letter of 2 July, I can clearly have no
expectation of a fair and independent investigation based on fact.
135.
In September 2009 the Claimant wrote to Pat Petch, pages 873-876, in which he
raised allegations of victimisation under the DDA 1995. In his letter the
Claimant bulleted the following matters as allegations of victimisation:
• the excessive period of suspension breaching
the Local Authority's School Policies and ACAS guidelines;
•
failure to treat his grievances of 24 March 2009 as grievances;
•
repeated failures in relation to duty of care;
•
complete isolation from work, vague and unspecified allegations in order to put
pressure on him to resign;
•
pre-emptive actions namely section 60 report and disciplinary procedures prior
to letting him have any opportunity to respond;
•
no access had been provided to his files, records and e-mails;
•
the hostile and aggressive tone of letters and correspondence sent to him.
136.
On 2 September 2009 the Claimant in a letter to Derek Anderson, the
Respondent's Chief Executive, pages 82-87 appealed against Sandra Morrison's
findings into his grievances. The Claimant alleged procedural failures, incorrect
information in Sandra Morrison's report and, matters which had been avoided not
addressed in her report and allegations where Sandra Morrison had down played
admitted failings.
137.
On 7 October 2009 nearly eleven months after the Penny Bermingham's allegations
first surfaced, Pat Petch, Chair of the IEB, wrote to the Claimant, pages
2811-2813 to inform him that the IEB proposed to instruct that the
investigation into the Penny Bermingham's allegations would be resumed as soon
as possible.
138. The Respondent had undertaken a number of
investigatory interviews with witnesses into the second disciplinary matter
against the Claimant in September of 2009 and continued undertaking further
interviews in October and November 2009.
139.
The Claimant had been signed off sick on 30 September 2009 but it was not until
12 November 2009 the Claimant was signed as fit for work. On 12 November 2009
the Claimant wrote to Derek Anderson complaining about the delay relating to
the appeal of grievances he had submitted in March 2009 and he requested
information of the outcome of his appeal and investigation of additional
grievances which were raised in May 2009, page 1104.
140.
In September 2009 there was an Ofsted inspection of the school which found that
the school required "special measures" because it was failing to give
its pupils an acceptable standard of education and that the persons for
leading, managing or governing the school were not demonstrating the capacity
to secure the necessary improvement.
141. The Tribunal noted that the Claimant had
only been actively involved with the school for under three months between
September 2008 and his suspension in November 2008, since February 2008.
Although the Respondent's witnesses, as the Tribunal found, were quick to
apportion all the blame for the shortcomings of the school to the Claimant, we
noted that when an earlier Ofsted inspection report had been complimentary
about the Claimant's leadership, the report was dismissed by Mr Matt Britt in
his oral evident to the Tribunal as 'merely a snapshot on the day of the
visit'. In his evidence during cross examination Mall Britt accepted that it
had been an error on his part to say that no staff had been trained in child
protection on page 4801.
142. The Tribunal was puzzled about the length
of the second investigation. The Respondent had received reports into the
health and safety issues, the TOIL issue and the CRB issue. Any remaining
significant matter involved the schools finances but concerns in relation to
these had surfaced before the Claimant's suspension. The Tribunal considered
that the Respondent failed to prioritise and seek an early conclusion to the
disciplinary matters against the background of the Claimant's continued
suspension.
143. On 24 November 2009 the Claimant provided
a written statement which he had prepared for the investigatory meeting
originally scheduled on 29 January 2009, page 2960 - 3004. The Claimant also
provided a number of testimonials from teachers.
144. On 16 November 2009 the Claimant was
written to and informed that he was required to attend a disciplinary
investigation meeting in relation to the Penny Bermingham's allegations, page
2814. There followed correspondence between the Claimant and the Respondent
about undertaking the investigation in writing between the Claimant and the
Respondent and on 11 December 2009 the Respondent agreed to the investigation
in writing as far as practicable and written questions to the Claimant were
enclosed, page 1250.
145. The Claimant had attended investigatory
interviews into the second disciplinary matters on 15 September 2009 which
continued on 29 September 2009, pages 3761 - 3805.
146. The investigation into the Penny
Bermingham allegations resumed on 30 October 2009 when Claire Cobbold was
interviewed. By this stage there was a body of available information which
potentially could have cast doubt on the veracity of the allegations. However
we found that Barry Gilhooly adopted an approach to his investigation on the
basis that the allegations were well founded.
147. Claire Cobbold was asked about telephone
conversations she had had with Penny Bermingham and the following questions and
answers give a flavour of Mr Glihooly's approach after Claire Cobbold had given
her account.
CC: There had been telephone conversations and
on one occasion she came to see me and Cathy Twist and Liz Tennant came with
her. We spoke about what had happened. Penny Bermingham was a very professional
teacher, she wanted to do her best by the children. We tried to keep a
catalogue of things that had happened and how she had resolved them, to be used
as evidence in any formal grievance.
BG: One meeting, a couple of telephone calls?
CC: One meeting and two to three telephone
calls.
BG:
What issues did she raise with you?
CC:
It was about being undermined, sometimes in front of other staff, criticised
for actions taken whilst she was in charge of the school, being shouted at and
intimidated either in personal telephone calls - her partner had heard shouting
through her mobile phone...
MW:
By telephoning in person?
CC: Yes.
BG: She saw this as harassment and bullying?
CC: Well it is unprofessional conduct. You
would not expect to be spoken to like that. She felt undermined.
BG: Did she describe that as unprofessional
behaviour?
CC: It is hard to remember, if she used those
words. As an HR person I am bound to use those words. She knew that was not
behaviour expected of a Head Teacher.
BG: Did she go into any more detail of how she
felt?
CC:
She felt as if she was being limited as to what she could do. Certain tasks
were taken away from her. Everything she had done was not good enough. She had
been criticised for the time she was in charge.
BG: Did she have a view of why that was
happening?
CC: I do not think so. She was a professional
person; she was doing the right thing by the children and just doing her job.
148. Barry Gilhooly's investigation report was
not produced until April 2010, pages 2753 - 2788. The Tribunal found the report
was very selective and failed to reflect any evidence which had surfaced during
the investigatory meetings which were favourable to the Claimant and were
critical of Penny Bermingham's conduct.
149. In her investigatory meetings, Leanne
Foulkes stated that the Claimant generally related well to staff and when asked
about his body language replied 'nothing / would say that was frightening'.
When asked whether she witnessed a situation where she felt the manner which
the Claimant dealt with a member of his staff was inappropriate said
"never but that sometimes in meetings the Claimant seemed stressed over
the top but certainly not in a one to one with anybody that she saw.
150. Leanne Foulkes was asked the following
questions:
BG:
Can you give us an example?
LF: I asked a question, he got stressed about
it, and then he suggested we should take a break and then come back to it. It
was to do with TLR's, quite a tense subject.
BG: Any other example?
LF: Again, stressful time after Lambeth
review. James got angry with Ros Scherler. He got angry with her ... raised his
voice. But everyone was stressed. There were people crying because of review
... He was hurt by this.
151. Later in the interview Leanne Foulkes
gave very negative answers in relation to Penny Bermingham's conduct and when
asked about bullying Penny, Leanne Foulkes replied:
"Rubbish,
I don't believe it at all. Penny can fend for herself."
152. At the end of her interview Leanne
Foulkes said the following:
"I heard Penny say things like I hope he
hits me and then he'll be gone. I just heard that this was said. Particularly,
James, in her eyes James was the only person above her ... She did not like
being disagreed with. If someone disagreed with her she seemed to take it as a
personal attack. Work was very personal to her."
153. In Barry Gilhooly's investigatory report
the Tribunal noted that the report stated the following:
Leanne
Foulkes also stated that James Walker got angry in a feedback meeting and
shouted at Ros Scherler.
154.
The Tribunal found that this was a very selective reference to Leanne Foulkes'
evidence and failed to mention that she had also said that everybody was
stressed at the meeting and some people were crying.
155.
Again there was no reference to Emma Bilsdon's evidence who was more closely
involved as Assistant Head Teacher with Penny Bermingham than most of the other
witnesses. Emma Bilsdon gave no evidence which supported a contention that the
Claimant's manner was intimidatory and said the following:
In terms of bullying and harassment, that is
the last thing I would put on my description of James Walker. I would say he is
pleasant. I understood the context (I could see him shouting), that was out of
order, but I don't think that was his fault.
156. In her interview with Barry Gilhooly,
Kelly Norridge stated the following:
"BG: What issues should be raised in
relation to the situation at Henry Fawcett?
KN: Basically, some things that Penny had told
me. I knew she was going to make the complaint. She said that she had been
advised by Lambeth to sit on the complaint for a period of time in case it
could be blamed on James Walker having cancer recently. It seemed odd."
157. Kelly Norridge said that Penny was quite
defensive and aggressive towards the Claimant and when asked by Barry Gilhooly
about the Claimant's management style stated
Overall he was laid back. More direct after
Lambeth review. After that, he had certain things he wanted people to
definitely do.
158. In his findings at paragraph 5.4.6, page
277, Barry Gilhooly provided a very one sided conclusion rather than confining
himself to stating that there was a case to answer.
Although James Walker was absent on sick leave
when the working relationship between Penny Bermingham and himself began to
deteriorate it is important to remember that James Walker should not have been
either coming into school, telephoning or e-mailing colleagues in relation to
work issues. The investigation took full account of James Walker's illness and
the pressure he was under. However the governors and the Local Authority and
Governing Body have a duty of care to other employees as well as James Walker.
Therefore regardless of his illness his behaviour was totally unacceptable and
his treatment of Penny Bermingham continued on his return from sick leave. From
the evidence provided during the investigation, I have no reason to disbelieve
Penny Bermingham's account of the events and the distress caused to her by
James Walker's aggressive and intimidating behaviour in shouting at her,
humiliating and undermining her in front of other staff.
The
consequences of James Walker's treatment of Penny Bermingham resulted in her losing
weight and experience anxiety and hair loss, it also undermined her confidence
in her own ability which was evidenced by Dawn MacDonald, interim Deputy Head
Teacher, Jubilee Primary School. In reaching this conclusion I have taken
account of the fact that James Walker was off sick and was then recovering from
a serious illness. I note, however, that when asked for an explanation of his
behaviour, James Walker's response has in the main been to deny that he was in
fact abusive towards Penny Bermingham. This suggests a lack of understanding of
what is and what is not acceptable behaviour rather than someone who is unable
to control their behaviour due to illness.
159. We were surprised that Barry Gilhooly, as
an investigating officer considering whether there was a case to answer,
criticised the Claimant for denying the allegations made by Penny Bermingham
particularly in circumstances when as we found there was substantial
corroborative evidence in support of the Claimant's position.
160. The Claimant's own grievance against
Penny Bermingham was never adequately investigated. We noted that in his
findings to the Claimant's grievance against Penny Bermingham, page 2781, Barry
Gilhooly stated the following:
From
the investigation there is no evidence that Penny Bermingham took any
deliberate actions to undermine James Walker's position which would have been
akin to bullying. To the contrary the evidence showed that James Walker's
behaviour towards Penny Bermingham appeared to be akin to bullying. Although the
investigation has taken full account of James Walker's illness and the pressure
he was under the governors and Local Authority also has a duty of care to other
staff.
161. The Tribunal noted that Barry Gilhooly
dismissed Kelly Norridge's evidence that Penny Bermingham was defensive and
aggressive towards James Walker by stating that it was probably that on that
occasion it was Penny Bermingham's reaction to James Walker's behaviour to her.
Penny Bermingham was never asked questions by Barry Gilhooly into matters
relating to the Claimant's grievance and in her evidence to the Tribunal stated
that she was unaware that the Claimant had raised a grievance against her.
162.
On every level the Tribunal found that any evidence in support of the Claimant
was dismissed and explained by the Respondent and that no reasonable analysis
was undertaken. We considered that the investigation was motivated by a result
which was intended to portray the Claimant in the worst possible light.
163.
In her evidence to the Tribunal Penny Bermingham stated that she was not told
about the Claimant's grievance and had not been question about what Ms Lynch
and Kelly Norwich had said about her. The failure by Mr Gilhooly to undertake
any adequate investigation into the Claimant's grievance and to accept at face
value, as we found, everything that we had been told by Penny Bermingham, in
the absence of any matters being put to her which might have cast doubt on a
number of her allegations, we consider reinforces our conclusions about the one
sided approach towards the investigation into the Claimant's conduct.
164.
Excuses were provided for Penny Bermingham's conduct in order to counter Kelly
Norridge's allegations, namely that it was a reaction to the Claimant's
behaviour without Penny Bermingham herself being asked about such matters.
Although the worst possible inferences were drawn from the Claimant's reaction
which on all accounts was a stressful meeting following the review, when
everybody who was present at the meeting was upset including the Claimant.
165.
We concluded that the Respondent failed to have any reasonable regard to the
fact that the Claimant himself on occasions was himself in a stressful
situation, not only on account of his serious illness but also against the
background of the Local Authority review which had upset a very significant
number of the teaching staff at the school in addition to the Claimant.
166.
In the light of the hostility which has struck the Tribunal throughout the
entire hearing displayed by most of the Respondent's witnesses towards the
Claimant, we are unable to accept that the Respondent took into account any
evidence or background circumstances which might have diverted the Respondent
from reaching the conclusions it intended to reach.
167.
By way of example in his investigatory meeting on 4 February 2009 Mr Britt
stated that he had been subject to low level bullying amounting to intellectual
snobbery on the part of the Claimant and he described the Claimant's behaviour
as appalling. The Tribunal found that Matt Britt had also endeavoured to
persuade John Marr to make a complaint that he had been bullied by the
Claimant. We also noted that Barry Gilhooly during the course of his interview
with Matt Britt only asked Matt Britt about the Claimant's behaviour towards
him rather than the Penny Bermingham allegations. Matt Britt was asked many
questions about his own relationship with the Claimant, the Claimant's
management style and the only question Matt Britt was asked by Barry Gilhooly
which related to Penny Bermingham occurred in the following exchange:
MW:
Do you think his behaviour was professional?
MB: Unprofessional as a leader. If my team had
received a review report in the way Henry Fawcett did, I would have been
leading them to find ways to overcome the challenges faced and not storming out
of feedback or refusing to accept the report.
BG: How did this relate to Penny Bermingham's
concerns?
MB: I saw the verbal arrogance and cynicisms
she mentioned in the review when James Walker and I met with her about the
action plan. I also saw the physically threatening behaviour presenting during
the feedback sessions with the review team.
BG: How would you describe your relationship
with James Walker?
MB:
James was dramatic in his behaviour and I felt that he had let himself down at
the review. He did not pull his team together and there was no accountability.
James left the feedback meeting midway and the rest of the feedback had to be
given without him present. It was my job to work with him. However I felt a
loss of respect.
168.
At a further interview on 24 July 2009 in relation to the second investigatory
matter Matt Britt made the following observation:
No one had been able to stand up to James
Walker, he was a horrible psychological bully. John Marr had to go off sick and
the chair of governors was virtually bullied.
169. Mall Britt's account was untrue. John
Marr never went off sick as a result of any conduct on the part of the
Claimant. John Marr went on sick leave with stress for eight weeks from
February 2009 as a result of being overloaded with work at a time when Matt
Britt was interim Head Teacher at the school. We noted that at the
investigatory meeting with John Marr it was put to him that he had been bullied
by the Claimant. Again the nature of the question confirms our conclusions that
the Respondent was motivated into reaching a particular result.
170. On 30 April 2010 Pat Petch chair of the
IEB wrote to the Claimant instructing him to attend a disciplinary hearing on
18 May 2010 continuing on 19 May, 21 May, 24 May and 25 May. The charges
involved the following under the first investigation gross misconduct involving
bullying and harassment of Penny Bermingham during the period June 2008 to
November 2008. The charges following the second investigation involved gross
misconduct involving the following:
• serious breaches of safety rules and staff
code of conduct involving a failure to comply with statutory legislation in
relation to health and safety and to ensure robust procedures and systems were
in place for effective management of health and safety;
•
failing to manage the budget at the school and Children's centre effectively
resulting in deficits at the end of March 2008 and the end of March 2009.
Further misrepresenting the budget position to the governing body.
•
two charges in relation to unauthorised indebtedness to the school and breach
of financial regulations in relation to paying off a private debt of a school
employee, Marie Gazley. Further the implementation of the TOIL system which was
inadequately recorded and verified, recruiting Ms Chukukere as a teacher with
unspent convictions and a failure to ensure that effective procedures and
processes were in place to ensure that staff had up-to-date CRB checks.
171.
The deficit for the year ending March 2008 was £315,585 and for the year ending
March 2009 the deficit as £142,460.
172.
Ten days before the date scheduled for the disciplinary hearing the Claimant
was sent a box of files containing over 2,000 pages. It was the Claimant's case
that he could not face looking at the material at that stage in the time that
was made available for him before the hearing.
173. We accepted the Claimant's evidence. We
considered it was wholly unreasonable of the Respondent to have expected the
Claimant to have prepared for a disciplinary hearing at such short notice
having regard to the fact that it took eighteen months for the Respondent to
undertake its investigations in circumstances where the Claimant as we have
found was isolated and suspended.
174. The Claimant's position was clearly set
out in a letter to Pat Petch from his solicitors, Collyer Bristow dated 14 May
2010, pages 1519-1523. The Claimant's solicitor's letter pointed out that the
charges were not specific and that the relevant legislation which the Claimant
was alleged to have been in breach of was not particularised. The Respondent
was reminded of its own procedures namely that clause 12.2.1 of its
disciplinary rules that charges needed to be framed with care. The letter also
pointed out that there were in effect allegations of dishonesty levelled at the
Claimant namely lying to the governing body and giving different information.
We consider the criticisms of the Respondent's approach and the general manner
in which the charges are claimed which provided the Claimant with no
particulars of what was being alleged against him were well founded.
175.
Another reason why the Claimant was unable to attend the meeting scheduled for
18 May 2010 was that he had a two monthly oncology appointment with his
consultant.
176.
The letter also challenged the composition of the panel which included a member
of the IEB. The letter pointed out the following, page 1522:
"The IEB was set up to replace the
governing body. The reason the governing body was disbanded by a section 60
notice was that it was not prepared to consider pursuing the vindictive action
against our client and one of the reasons why the IEB came into being was for
this process to be considered. The section 60 letter contains some serious
inaccuracies regarding our client and his role and he was never given a chance
to correct the same. The IEB has therefore been appointed on the back of
assertions which are factually incorrect: the letter of 29 February 2009 (the
warning notice) contains assertions put forward as fact relating to many of the
issues which appear to have found their way (some 18 months later) Into
disciplinary allegations against our client. Members of the IEB have considered
the terms under which they were appointed have seen the letter which sets out
these matters as facts which have happened and led to the need for a IEB in the
first place. These include allegations of material failures on the part of the
Headmaster, how they are advanced as facts and not as issues to be
investigated. Where the allegations are of such a serious nature and the IEB is
appointed expressly on the basis that some of the same allegations are
factually true, it is clearly impossible to see how our client will receive a
fair trial involving members of the IEB.
You
are aware that we have been extremely concerned of the way in which you as
chair have conducted these proceedings in terms of our client's continued
suspension, the failure to decide what to do as to dropping this fascicle
process or continuing with it and the conduct of meetings. The Vice Chair
cannot have been isolated from those issues. She is junior to yourself about
whom our client had sought to raise various grievances/complaints.
177. By letter to the Claimant's solicitors
dated 26 May 2010 the Respondent replied to the points raised by the Claimant's
solicitor and agreed to the request to postpone the disciplinary hearing. The
letter also pointed out that the proposed panel included governors from another
school and that they had no contact either professionally or otherwise with the
Claimant and that Ms Dunne, the other panel member, had played no part in the
allegations against the Claimant. The letter also pointed out that one of the
conditions of the Claimant's suspension was that he was to make himself
available for work during normal working hours and that he should advise the
authority of he was unable to attend for work for any reason and any request to
attend hospital or other medical appointments. We consider that the inclusion
of such an observation was wholly unnecessary and unrealistic in circumstances
where the Claimant had been suspended since the end of November 2008.
178.
In late June early July there was correspondence between the Claimant's
solicitors and the Respondent's legal department relating to further and better
particulars of allegations against the Claimant Finally in a letter to the
Claimant's solicitors dated 9 June 2010, page 1156, the Respondent stated that
the further and better particulars provided were sufficiently clear and that
they would not be providing any further information, the letter also pointed
out that the disciplinary hearing had been provisionally scheduled to be heard
on 8/9/10/13/14 September 2010..
179. Against the background of the Claimant's
state of health it took him some time to consider the documentation which had
been provided to him from the Respondent. The Claimant considered that his
allegations against Penny Bermingham had not been investigated with the same
degree of seriousness as the allegations against him and he concluded that the
investigation had placed greater value on evidence which was negative towards
him. The Tribunal found that the Claimant's perception of the investigation
process was wholly reasonable. The Claimant was also concerned that the
investigation failed to address and clarify where the legal duty lay in respect
of statutory and other duties nor was there any clear explanation of the
relationships between the local authority, governing body and the Head Teacher.
180.
We accepted the Claimant's evidence that following the receipt of the allegations
against him and the Respondent's supporting documentation he was at a very low
ebb. The Claimant in his witness statement stated that he had contemplated
suicide and required medication and long term counselling support. The Claimant
concluded that there was no way that he would receive a fair hearing from the
Respondent.
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
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