Employment Tribunal Advice needed please

cquinn60

I wonder if there is anyone reading this who has some kind of background in Employment Law who can help me make sense of what happened at my Employment Tribunal last week (30/10/12-02/11/12).

I had lodged a claim for unfair dismissal because I had been dismissed from my job as a Primary School Teacher for whistleblowing against my former Head Teacher’s ethical and financial malpractice at the school.

Obviously, if proven, unfair dismissal for whistleblowing is classed as ‘automatically unfair dismissal’ and compensation is uncapped.

Respondent’s counsel fought hard to have the allegations I had made classed as just that, allegations, rather than protected disclosures. Unfortunately for her, the Judge confirmed that the allegations I made were by legal definition ‘protected disclosures’.

However, unfortunately for me, I lost my case and I do not understand why. It is not simply the case that I was unhappy with the outcome it was more to do with the fact that I had submitted substantial and irrefutable evidence of wrongdoing and that I had been set up by the Head.

I had made several requests for documents from the Respondent’s Solicitor in preparation for the tribunal which they ignored. I made a formal complaint to tribunal, detailing the many obstructive measures the Respondent’s Solitiors had taken to prevent me preparing adequately for tribunal.

I raised this matter again to the Judge during my tribunal. He asked the Respondent’s Counsel to provide me with the documents, she never did. I continued to raise the matter during the tribunal and the Judge took no further action - why? The documents I requested would support the Respondent so why could/would they not provide them? The reason they could not/would not provide them was for the very reason I had requested them, they didn’t exist.

I gave in several examples of evidence to prove my case including falsified documents (I had the originals), payslips showing I had received payments for an initiative that I took part in, which the Head claimed I didn’t. They even provided two certificates to prove I had been on courses that I hadn’t. The Head received a lot of money on training that never took place. I had told the tribunal that I never took part and explained why they had been produced. It is very common for Head Teachers, in collusion with LEAs, to produce policies and documents they require in preparation for Ofsted inspections, the documents mean nothing other than a tick in an adminstrative box. Staff should receive regular training especially in relation to new or changing policies. To prove my point I presented the two certificates and asked the Head, while she was on the witness stand, to read out the date on the 2nd certificate. I had apparently, six weeks after having been suspended returned to school and taken part in a training day for Child Protection? This proved they could provide false documents. The evidence I provided was all similar to this and clearly showed the Head were lying.

The Respondent produced not one single piece of evidence save their own reports but with no corrobarative evidence i.e. signed witness statements.

I had been set up by the Head because I had made formal complaints and protected disclosures. The allegations she used against me to instigate a suspension were false. If they had of been true they would have been classed as Child Protection issues. She knew they were false, as did I.

On the day I was suspended, against disciplinary procedures she did not have her own witness present. She also did not offer me the opportunity to have a representative or colleague present. Furthermore, she would not tell me what the allegations were so I could not refute them. It is obvious why she would not tell me the allegations because if she had told me them, on the morning I had been suspended, I would know that she had set me up and she could not take the process further.

She did not need the allegations to be true she just needed a ‘procedurally valid’ reason to suspend. She could pile other allegations on later. The fact that she did not follow the correct procedures for suspension has been ignored, even by the Judge? She claims that she did not have to tell me what the allegations were nor did she have to offer me the opportunity to respond to them. Her justification for this is that the allegations were so serious as to amount to child protection issues and she had no choice but to suspend me immediately.

I have worked for over 34 years, 20 as a teacher and I have a completely unblemished work record. I have never been disciplined in any way. I have never been ‘spoken to’ or received any kind of warning throughout my career. Are her actions those of a ‘reasonable’ employer? No, they are the actions of a vengeful employer.

Her justification for suspending me in the manner she did, without following the correct disciplinary procedures, was accepted by everyone, including the Judge at my tribunal. Why is that allowed?

Here is a point of law which kept coming up in my tribunal that I fail to understand, even though I have read similar cases. The very first words out of the Respondent’s Counsel’s mouth in her opening statement was to remind the Judge that his judgement could not be based on ‘truth’, that is to say that he cannot make a judgement based on whether he believed someone was telling the truth or not? I find this staggering.

The Respondent’s Counsel, kept reminding the Judge of this point, particularly when I pointed to evidence to prove the Head had lied, or falsified documents etc. When I was questioning the Head, her Counsel, kept reminding the Judge of this point until he became extremely frustrated with her and told her in no uncertain terms that she had made her point quite clearly and she should desist from reminding him.

The Judge could only make a Judgement based on whether the respondent’s dismissal of me was for a fair or procedurally valid reason. Why can he not say that it is clear someone is lying and that they evidence clearly showed they were?

As I pointed out earlier, the allegations were false and were only used by the Head to start the disciplinary process. As I knew they would be, they were dropped at the beginning of the disciplinary stage. They had to. There was absolutely no evidence to prove the allegations.

I was eventually dismissed for breaching the terms of my suspension by continuing to chaperone two disadvantaged boys from my class to football, two sessions of coaching and weekend matches, in my own time and nothing to do with the school. It is something I had arranged for the boys. I had no choice and knew that I was going to be dismissed anyway. I was not prepared to lets these boys become victims of the Heads need for revenge. I had received at least 7 letters telling me not to. At face value it is easy for someone to say, it was my own fault and I contributed to my own dismissal. I would argue that, if but for the fact, the suspension itself was not legitimate, I would not have been on suspension and could not therefore be dismissed for breaching the terms of my suspension.


Those tasked with judging me during my internal disciplinary and appeal hearings were the very people I had exposed/criticised when I made my formal complaints and disclosures against the Head. How come this is allowed to happen? They were hardly neutral or impartial were they?

The Governing Body made up the panels for both my disciplinary and appeal hearings. The knew I had made formal complaints and protected disclosures against the Head and they knew I had been severely critical of their failure to supply ‘Good Governance’ to the school. They were ‘hands off’ Governors and allowed the Head to micromanage the school with no checks and balances in place, and no scrutiny of her management of the school. So, were they feeling love towards me, I think not.

However, the Judge was impressed with their representation at my tribunal. There were four witnesses for the Respondent; the Head Teacher, her Chair of Governors (who is an NHS Manager with a lots of experience at disciplinary hearings), a Community Governor, who chaired my disciplinary hearing (her background is as a County Council Programme and Strategy Manager) and their 4th witness, a Local Authority Governor (who is an Adviser to the Law Society of England and Wales, advising on parliamentary and policy matters, specialising in Employment Law). Who could fail to be impressed? There was supposed to be a 5th witness the LA Head of Audit and Risk Management, the one tasked with auditing the school, under the whistleblowing investigation. They never carried out an investigation, they sent in external auditors to cover up the Head’s financial irregularities. If there had been a proper investigation the first thing they should have done was suspend the Head – that never happened. The LA Head of Audit and Risk Management never appeared and this was very deliberate on their part. In her statement she supported the Head’s financial explanations but that would have been impossible, I proved the Head’s figures were incorrect, so how could she say that they found nothing wrong? She didn’t appear so I never got the opportunity to question her. She would have had to lie under oath. That didn’t bother the Head or the Chair of Governors though so perhaps it would have bothered the LAs Head of Audit and Risk Management either.

When summing up the only reason I could fathom from the Judge’s reasons was that he found the Respondents witnesses eloquent and credible and believed they acted in good faith. In his summing up he did not criticise my case or even said I had done anything wrong. He simply said the witnesses for the Respondent were very credible. He didn’t even say they had proved their case other than he agreed that the reason for dismissal was a valid reason, based on their evidence.

He had completely ignored the fact that it was their job to prove that they had not dismissed me for whistleblowing. They had in no way proved their case where I had clearly proved mine, with evidence to support my claims?

On the face of it the reason for my dismissal was perfectly legitimate reason, if it had been the real reason. I provided the timeline to show how everything fitted into place and how no reasonable employer would have made the same decision.

I was flummoxed. All I could say in the end was “unbelievable”. He even allowed the Respondent’s Counsel to make a request for costs, she plucked a figure out of the air and said £5,000. It seemed to be all part of a game because the Judge then refused their request for costs because I had no income other than JSA.

I can only describe the Judge’s summing up as an out of body experience. It was if I had walked in on the summing up of someone else’s tribunal.

Respondent’s counsel had made mistake after mistake throughout the tribunal and had annoyed the Judge many times. While I did not hold my breath for a brilliant outcome I felt that I had presented a very clear case while they had not. What went wrong?

I have not yet received the reasons for judgement but wonder if anyone could make sense of this for me.

Can anyone explain why they did not have to provide any evidence to support their testimonies?

Can anyone explain this issue of the Judge not being able to make a judgement on whether he believe someone was telling the truth or not?

Can anyone suggest where I go from here? I have no money to pay for legal advice and given that the reason for my dismissal is classed as a valid one, no-one (legal aid) will support me. I no longer belong to a union. They took the stance that because I continued taking the boys to football after I had been told not to I contributed to my own dismissal. For this reason they would not waste money defending me. Why will no-one look at the reason and way I was suspended? Why does this not count?

Uncertain

I would suggest you go to redundancyforum.co.uk and post this there for the attention of SarEl. She is a vastly experienced barrister specialising in employment law. By all means say I suggested this.

She tells it exactly as it is and doesn't sugar coat her replies but her knowledge and the time she is willing to devote is unrivalled.

Hope this helps - I will be interested to see her response.

Pricivius

Okay, I will try to help... I think there are a couple of points that you should bear in mind:

1. You claimed unfair dismissal. The Tribunal will look at the isolated incident of your dismissal and decide whether the decision taken to dismiss you was within the band of reasonableness. The school have set out why they dismissed you and the Tribunal has decided that that decision was within the realms of reasonableness. That's it.

With that in mind, the reason you were suspended is irrelevant. Any conspiracy theories as to why you think you were dismissed are largely irrelevant. The question the Tribunal has to ask themselves is a simple one and it does not take into consideration the other points you were trying to make - they just serve to complicate the background and explain your discontent.

It would appear that what has happened is that the relationship between you and the school had broken down and the school suspended you. During that suspension, you broke the rules and were dismissed. I would suggest that making that move possibly played right into their hands and gave them a genuine reason to dismiss. Whether that was motivated by previous events is a separate issue and does not impact on the actual issue - they didn't invent a reason or pretend a reason, you gave them the reason and it was a bonafide one.

As for procedure, the process you question was the original suspension. This is irrelevant for the purposes of the unfair dismissal which came later. Providing they followed procedures correctly in relation to the unfair dismissal, there should be no difficulty. In any event, procedural deficiencies can be "cured" on appeal.

All they have to do is show that they have a valid reason and they did that. Game over. Whether there was a whole load of other issues bubbling away in the background on both sides is not the Tribunal's concern. You say they dismissed for X reason; they say they dismissed for Y reason. Y reason is accepted by the Tribunal as reasonable enough - in fact, you even admit yourself that you knew you would be dismissed for it so you knew it was wrong.

2. The Tribunal is very limited in its judgment. It cannot decide who is honest and who is not! It can give indications that it found a witness to be credible as it appears it did in this instance, but this will not be a judgment. The Tribunal hears from the witnesses and decides whose evidence is most credible and makes its decision on that basis, but it would not declare people liars as that is not its role. It is there to decide whether you were unfairly dismissed, not whether someone is lying.

3. As to why they did not provide evidence in support of testimonies, it is not clear what evidence you are expecting. The decision process they made to dismiss may not have been documented as there is no requirement to do so. If someone has made a decision, usually their witness evidence is all they have to support it, unless they made a note of their thought process which is unlikely.


I think you may have missed the point of the Tribunal and the decision it was there to make. Your options from here are to appeal the decision or put it behind you and get on. Any appeal would have to be on a point of law or perversity and from what you have said, I cannot see an obvious ground for either. Wait for the judgment, have a good read through and see if things make more sense when you have time to digest them.

cquinn60

Thank you for responding so quickly 'Uncertain'. I have tried to register on the site you suggested but cannot get past 'Invalid referral name'. I have sent them a message so cannot post my story on their site. When I do I will certainly let you know what they said.

Thank you. It may come to nothing but all I can do at the moment is put my situation out there and hope that someone can make sense of it for me.

cquinn60

Thank you Pricivius for your response. I take on board everything you said but what choice do I have now.

The reason given for my dismissal is not the real reason I was dismissed. My career has been destroyed to shut me up and I have been rendered unemployable because I have been dismissed and do not now have a reference.

The only income I have is JSA and my modest one-bedroom flat will soon be repossessed. If the same thing had happened to you would you accept it?

I need to clear my name and get on with my life but I cannot.

I am nearly 53 years old, what do you suggest I do, sit back and let the Head get away with what she has done?

I really appreciate the time you have taken and your indepth reply. I repeat, it is not a question of my simply not liking the outcome. I need to right a wrong. I need some kind of redress but do not know where I go from here.

I should not have to be set up because I whistleblew and they should not have the power to perpetrate a miscarriage of justice, even if they can come up with 'procedurally valid' reasons. With the power and resources of a large LEA HR department and legal resources at her disposal it seems a rather one-sided and unfair fight, don't you think?

As to reading the 'Reasons' and moving on, how do I do that?

Pricivius

The difficulty you have with regard to the Employment Tribunal is that you will now be out of time to bring another claim - most claims have a three month time limit, with some extended to six months. You are no doubt well beyond those limits and unlikely to be allowed to bring any other claim out of time.

You're only option would be to appeal the decision. This is a relatively straightforward process but be aware that there is a sift - your appeal will go to a Judge who will decide whether your should be allowed to appeal or not. You will need to focus on whether you are arguing on a point of law or that the decision made was perverse in the hope that the Judge allows it through to appeal.

Maybe it would help to clarify what you want. How would your name be cleared? Is this as simple as a reference which does not refer to your dismissal? Or do you actually need a declaration from the school or Tribunal? And would this be enough or do you want compensation as well?

Did the school make any offers of settlement during the tribunal process? It would surprise me if they didn't but you never know...

cquinn60

Pricivius, thanks for your reply.

I want a declaration from a Tribunal. I want my name cleared by a tribunal so that this matter is made public and not buried away like so many other scandals.

I believe the judgement was perverse. I claimed that I was unfairly dismissed for whistleblowing and this is quite possibly a reason for my dismissal, if one looks closely at the sequence of events leading up to my suspension (I actually know it is but I know this doesn't count for anything).

I think the judgement was perverse because no consideration was given as to whether I could have been set up to find a procedurally correct reason to dismiss me, the whole point of my claim, and yes I played right into their hands, I had no choice, I was constructively forced into the situation with my back to the wall. There are case precendents where it has been proven that the reason given was not the real reason for dismissal but I need legal help to present my case under this basis, for Appeal. I am afraid if I appeal without legal advice I will not represent myself well enough.

Compensation is not the focus here, clearing my name and stopping employers being able to dismiss whistleblowers is the focus. What is the point of a Whistleblowing Policy if not to protect the Whistleblower from detriments, the ultimate being dismissal.

Of course, once my name is cleared I will seek compensation because of what has happened to me but, if I cleared my name and got this matter out in the open, without compensation, I would be fine with that.

Uncertain

cquinn60 wrote: »

I want a declaration from a Tribunal. I want my name cleared by a tribunal so that this matter is made public and not buried away like so many other scandals.

I think you are misunderstanding the purpose of an employment tribunal (or civil court come to that). Plenty of people "win" ET cases because it is judged that they have been unfairly dismissed (in law) yet are awarded little or no compensation because the tribunal feels they would have been dismissed anyway had proper procedure been followed.

Such a "win" counts for little or nothing. Obviously they can make known that they have "won" but whether that gets them anywhere is debatable to say the least.

Also, a tribunal does not set a precedent. The fact that it has been won (or lost) doesn't mean some other civil action surrounding the same events will be.

As has been said if the decision is "perverse" then you can try to appeal as you can on a point of law. What you can't do is appeal just on the grounds that the judge got it wrong.

That may not seem fair but that is how it is.

Pricivius

I think the difficulty you have is that if you take the reason for your dismissal in isolation - if it was the only thing that happened and neither you nor the school had crossed swords at any point previously - it would be enough to dismiss you, and possibly more importantly, it would have been enough to dismiss any of your colleagues also.

There is indeed case law in this area, not least of which Aslef v Brady. The school had to show that the reason they state you were dismissed was the principal reason for your dismissal and it would appear they managed to convince the Tribunal that that was the case. It is not instantly unlawful for an employer to seize an opportunity to validly dismiss an employee who they are pleased to see the back of.

If this is the case then it is difficult to see how this could be perverse as it's a decision they are entitled to come to having considered the evidence put before them.

Have you spoken with CAB or local Law Centres? They may agree to assist you with your appeal.

Can I ask again whether the school made any offer to you during the tribunal process? Have you asked for a copy of your reference from the school to see how damaging it is? Maybe they provide factual references only and it won't state you were dismissed? Have you tried applying for other roles?

Pricivius

Also, I agree with Uncertain. Let's say you did win at Tribunal and were declared unfairly dismissed. A Tribunal cannot force your ex-employer to amend its reference so your reference could now read "was dismissed for gross misconduct but the dismissal was found to be unfair by a Tribunal". Absolutely accurate so you would have trouble arguing against it and now any future employer sees that there was a major issue and that you sued your former employer. It would ring alarm bells for any employer.

A factual-only reference would arguably be more use to you...

cquinn60

Thank you everyone for you posts and, really, I do hear all your saying.

Pricivius mentioned the case of Aslef v Brady which is the point I am trying to make. Brady won on appeal in that the reason given for his dismissal was not the 'real' reason for his dismissal. I am in exactly the same position.

Everyone is just looking at the school having had a procedurally correct reason for dismissal, as they did with Brady. No-one is looking at the Head's motivation behind this.

The Judge never even looked at the possibility that the Head may have had an ulterior motive. He only had to make a judgement based on the decision for dismissal.

I was at the tribunal and other than the Respondent saying their reason was a valid one, trooping out their impressive witnesses to say they carried out the disciplinary proceedings correctly. How is that clear? How does that mean they proved their case?

I made an unfair dismissal claim for whistleblowing. Nothing in their case demonstrated or proved they did not dismiss me for this reason.

You may say that everything else is irrelevant then how on earth do I get some legal redress? What was the point in accepting my case for tribunal if they were not going to examine or consider ulterior motives?

There seems to be no protection in law unless you have money.

Winning at tribunal would in some ways be a reference in itself. I am sure many employers wouldn't like to think they were employing someone who is litigious but at least it would give me some hope of finding work - I am only 53 - I don't want to be on the scrap heap. I have worked for over 34 years, I know nothing else.

What I need is someone who will look at cases such as Aslef v Brady and help me understand the basis in which it was accepted for the EAT.

By the way. Does anyone know how to contact the newly setup Whistleblowers UK support group? When I look online all I can find is a press agency and the such like.