Trade union rights, disability discrimination and a headmaster "intent on exacting revenge"
Wood-Hope v Salford City Council & Anor was, for the employer, a costly lesson in what not to do.
Over the coming months we will see an increased focus on trade union activity in the workplace, as the changes to trade union laws set out in the Employment Rights Bill come into force. While the case of Wood-Hope v Salford City Council & Anor centres on a school, employers in any sector can learn from it.
Background
The claimant was both a teacher and the National Education Union ("NEU") representative at the respondent's school. When the claimant raised staff concerns with the head teacher, Mr E, about unannounced classroom observations breaching a protocol previously negotiated between the school and the NEU, she was issued with an informal warning. After NEU members threatened strike action, an agreement giving 5 days' notice of the observation periods was agreed. The claimant was then told that she was to be investigated and subsequently suffered a panic attack. After a period of absence, she was informed by staff on her return that Mr E was conducting observations outside the agreed protocol.
When the claimant raised this with Mr E, he was angry but agreed to re-do the observations. Later the same day he informed the claimant that she was to be investigated again. He criticised teaching work not done by the claimant but by a colleague, and when she pointed this out, he accused her of misconduct. The claimant was then told she was to be put on a performance support plan. Mr E also questioned whether anyone else would be running against the claimant in an imminent NEU re-election. These events unfolded over a fairly prolonged period of time.
The claimant was signed off with work-related stress. She raised a grievance around Mr E's actions against her which she believed were an attempt to control her trade union activities. The grievance was dismissed. The claimant did not return to work and was subsequently dismissed for poor attendance. Prior to the dismissal Mr E had supplied the decision maker with what the tribunal found to be a biased report that was aimed at ensuring dismissal. The report was focused on professional performance, while the subsequent decision to dismiss was based on poor attendance. An appeal against dismissal was heard by the school's head of governors. She had previously heard the claimant's grievance appeal, and her daughter had been involved in the decision to impose the support plan. Perhaps not surprisingly, the appeal against dismissal was unsuccessful. Mr E then proceeded to provide bad references for the claimant, apparently in an effort to ensure she would not work in teaching again.
The claimant brought claims for automatic unfair dismissal for trade union reasons, detriment on the grounds of trade union membership and activities, discrimination arising from disability and for a failure to make reasonable adjustments.
Tribunal judgment
The actions of the head teacher, Mr E, in this case were unusually blatant and the tribunal had no difficulty in concluding that the claimant had been automatically unfairly dismissed for carrying out trade union activities. The tribunal also concluded that the claimant had been subjected to detriment on the grounds of her trade union activities. The detriments consisted of the absence management process that led to her dismissal, the imposition of the support plan and the rejection of her grievance. Her disability discrimination and failure to make reasonable adjustment claims were also successful.
The claimant was awarded over £370,500. In addition to an award of £25,000 for injury to feelings, the claimant was awarded £10,000 for psychological injury. She was also awarded £10,000 for aggravated damages, primarily due to the actions of Mr E both before and after her dismissal – including his failure to attend the employment tribunal hearing to give evidence.
Learning points
The vast majority of employers would not expect a member of senior management to act in the way Mr E did here. However, there are a number of learning points that are of relevance:
- Separation of roles and responsibilities – Both Mr E and the dismissal appeal manager were involved in this matter in multiple capacities. Employers must do their best to ensure impartiality when undertaking disciplinary, capability and grievance hearings. The larger an organisation is, the easier that should be to achieve. There is also the possibility of bringing in a third party to carry out parts of the procedure, for example to undertake the investigation.
- Although it is unusual to have a manager act in the way the headmaster did here, had the reference requests been dealt with either via HR or by way of a standard reference, the employer could have controlled what was said, reducing the risk of an unfair or misleading reference being issued.
- Ensuring adequate training is provided to managers involved in people management is essential. Managers need to be aware of issues including employment protections for employees who take part in trade union activities, who may be disabled and who are involved in capability, misconduct or grievance procedures. By embedding fair treatment of employees into the workplace culture, employers can significantly reduce the risk of employment tribunal claims.
