Employment Tribunal Advice needed please

Uncertain

If I understand Pricivius correctly (and if so I agree with him/her) the fact that the school had a valid reason to dismiss you is enough.

The fact that may not have been the real reason they wanted you gone becomes irrelevant. All that matters in law is that they followed a fair procedure, had a reasonable belief that you were guilty of misconduct and that dismissal was within the range of reasonable responses.

Even if the dismissal was somehow unfair, because it was not the "real" reason, I would expect zero compensation on the grounds that you could have been dismissed anyway. There was a very long thread on here a year two back where that was exactly the outcome.

I'm sorry but I totally disagree with your belief that a technical win such as that would have been of any real benefit to you. The smart move would have been to have negotiated a binding reference as part of a settlement ahead of the tribunal. An ET has no power to order this under any circumstances and without a binding agreement the employer can say anything they like as long as it is true, as Pricivius has illustrated.

Sorry!

By all means run this past SarEl but I'm far from hopeful.

Edit - 6.00pm

I've just read SarEl's response in another place. I'm sorry from your point of view but she seems to agree 100% with Pricivius and me.

Over there you comment.....

I hear what you are saying but my point is, this gives carte blanche to any employer to set up a suspension on any grounds. Where is the fairness in that?

Taken literally, this doesn't matter to the employee. He is still getting paid and it is, in law, a neutral act. If the employer wants to pay somebody to stay at home on full pay whilst they dither about what to do how is the employee losing out?

Obviously I understand the stress and inferences but it is a bit like the famous phrase "helping the police with their enquiries". What law abiding person could object to doing that!

Pricivius

Okay, let's look at Aslef v Brady.

First point to note is that Brady won at the ET and then ASLEF appealed. The EAT upheld the ET's decision.

Secondly, what Uncertain says is almost right. The school have to show that the reason you were dismissed ("the football incident") was the real reason for dismissal. They do not have to show that there were no other incidents going on, they do not have to show that there was not a whistle-blowing and they do not have to show that they did not dismiss you for any other reason. Whilst the onus is on the school to demonstrate that the football reason was the real reason, you can help to disprove this.

As set out in Aslef, the reason Aslef dismissed in that instance was not a reason that Aslef would have dismissed anyone else for. This is strong evidence that it was not the real reason - that they set Brady up with a bogus dismissal because management did not like him.

In your case, the football incident would have been enough to dismiss anyone and the school would have dismissed any other teacher if they had been involved in the football incident. So you don't have this strong evidence, unlike in Aslef v Brady.

However, the EAT in Aslef did confirm that this was not necessarily enough and even if the reason claimed by Aslef had been a genuine reason that anyone would have been dismissed for, a Tribunal *could* still find it unfair. This has happened in a handful of reported cases - Timex v Thomson and Brick v Thompson being two such cases. However, in both these cases, I vaguely recall there were some procedural defects which cast doubt as to whether the employers were carrying out a genuine procedure. The employee has to produce evidence that casts doubt on the employer's reason and in these instances, the failures in procedure were enough for the Tribunal to question whether the dismissals were for genuine reasons.

From what you've said, there are no failures in procedure regarding the football incident and I'm unclear whether you had any other evidence supporting your position.

Whilst it is possible to win such a case as shown by the case law, I would suggest it is incredibly difficult and you would need a smoking gun or equivalent or an unfair reason to be able to convince a Tribunal.

So...

- The Judge does not have to look at ulterior motives. He looks at whether the school can persuade him that they dismissed you for a genuine reason. If they cannot, then he will find it to be unfair.

- The school do not have to disprove your theory, they have to prove their case.

- The Tribunal accepts every case if it has jurisdiction to hear it. There is no sift or validity check. If you had any chance of proving your claim, they have to hear it.

Are you 100% sure that the school's reference will refer to your dismissal? Many don't - my company policy is factual-only references and many employers are moving this way to avoid litigation for misleading references.

cquinn60

Some background which led to my being unfairly dismissed.

On the 6th September, 2010, my former Head Teacher announced that there was a place on the Governing Body for a Teacher Governor. This was highly unusual because in the past we were never allowed to apply. She had always placed one of her SLT (Senior Leadership Team) on the Governing Body.

She had no reason to think I would apply because I had made it clear to her, in the past, on several occasions that I had no interest in joining the Governing Body.

She had made this announcement because none of her current crop of SLT members wanted to be on the Governing Body.

She had hoped that the lack of interest would mean that she could talk someone biddable into taking on the role of Teacher Governor.

My colleagues implored me to stand because I was known for my integrity and for being incorruptible. They knew I would represent their interests on the Governing Body which had not been represented before.

Initially, I did not want to stand. I had always had a high regard for the Head but had become last enamoured in the previous year. I had many concerns with her management of the school, concerns that others had voiced but I had not listened to, that is until I saw and heard them for myself.

When I handed in my nomination slip she was clearly shocked. Three days later she called a rush election and said there was more than one applicant for the position. An hour later I was suspended for the 1st time?

I was, as expected, completely exonerated as the allegations were deemed to be unfounded. She had no intention of dismissing me at the time, she just needed a procedurally correct reason to get me off the premises and to prevent me taking part in the election. The witnesses corroborated my story that the allegations the Head had ‘cooked’ up were incidents of banter from 3 years prior to my 1st suspension.

I had no intention of being a whistleblower. I believed I could expose the concerns my colleagues and I had through the Governing Body.

The fact that the Head removed me on the day of the hastily arranged elections and when I saw the allegations convinced me that I had been set up. Unfortunately, I reported my complaint/disclosures to a Senior person at the LEA, whom I had been advised to speak to. The judge in my tribunal agreed they were protected disclosures and I should have been protected from suffering detriments because I had made those disclosures. I later found out this person was a friend and mentor to the Head. She betrayed my confidence to the Head.

I was reinstated because the Head could not now bring any other allegations against me, it was too far along in the process, without drawing suspicion on her involvement in setting me up but, I knew my days were numbered. When I returned to work I actively started looking for another job.

I spent over 4 months being victimised by the Head in the hope I would walk out. I could not walk out until I had another job to go to.

The Head was impatient and that is how I found myself facing another set of false allegations and was suspended for a 2nd time.

As with my 1st suspension the allegations were not true but she didn’t need them to be true to start the process.

Do you still think that the Head had no ulterior motive?

I, according to the Head, breached the terms of my 1st suspension but it was not used to dismiss me because she did not know at the time that I had made my protected disclosures.

Also, other staff have had actual complaints brought by parents and the police and never even been suspended. She always gave them the opportunity to respond to the allegations and she made the decision not to suspend.

If I had not whistleblown she would have done the same for me.

Uncertain

cquinn60 wrote: »

Do you still think that the Head had no ulterior motive?

Sadly that is not the point!

SarEl

I don't venture here very often these days for reasons that are irrelevent to this thread. But I have just been made aware that there are posts heer on a matter I have also been advising on. I agree with the other posters here, one of which I know the provenace of and is reliable; the other I don't but their advice is sound.

Pricivius wrote: »

Are you 100% sure that the school's reference will refer to your dismissal? Many don't - my company policy is factual-only references and many employers are moving this way to avoid litigation for misleading references.

And yes, the OP is sure, as am I. I do not know what your company background is, or whether you are legally trained. But this is a school. Their reference must, by law, include relevant details and information. Regardless of what allegations may or may not have been true, the OP was suspended and forbidden contact with pupils (amongst others I assume). This was not negotiable, yet the OP continued such contact despite several instructions to desist. This in itself is a child protection issue, and the school is required by law to disclose it to any relevant employer - any other employer dealing with vulnerable groups, such as children, the elderly, or the mentally or physically disabled.

Sorry to have to correct you on this - the advice you have given is generally spot on, But this was brought to my attention, and not by Uncertain (at least I am fairly sure not!) and I had to say something.

cquinn60

I have to correct you on something SarEl. At my appeal hearing I asked if taking the boys to football was a Child Protection issue and they emphatically said it was not - I have the minutes where they say it was not a Child Protection issue.

zzzLazyDaisy

Unfortunately there is a difference a mile wide between someone behaving unfairly in the common use of the word and a dismissal being 'Unfair' within the legal meaning of the term. From what you say, you were treated unfairly along the way, but on YOUR version of events, the tribunal were entitled to find that the dismissal was fair, within the legal parameters.

The OP and subsequent posts are very long, and I have only skimmed them. If I have inadvertently missed something, please accept my apologies.

But to cut to the chase.....


THIS IS THE ONLY RELEVANT BIT OF THE SAGA

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.

You were suspended pending an investigation into your conduct. You would have been given the standard instruction along the lines of 'during your suspension you must not enter school premises or contact colleagues, parents, or children' (okay that may not be the exact wording, but it would be something along those lines).

That is a reasonable management instruction. A tribunal does not have the power to rule otherwise.

Almost certainly, in the disciplinary procedures, there will be an non-exhaustive list of conduct which may be viewed as gross misconduct. Deliberate or repeated failure or refusal to comply with a reasonable management instruction will almost certainly be in there somewhere, in some form - it is a standard example of GM

If you had complied with the terms of your suspension, the employer would have had to conduct a thorough investigation into the allegations made against your conduct, and come to an honest and reasonable decision, based on the results of that investigation. You would have had the opportunity to answer the allegedly fabricated charges, and if you were dismissed on the basis of false evidence which should have been discovered by a reasonable investigation, you would have had a good case to take to tribunal.

But your conduct in deliberately and persistently flouting the employers instructions - despite SEVEN letters instructing you not to do this - gave them a get out of jail free card. You don't deny you breached these instructions - in fact you steadfastly refuse to accept the instructions were valid or reasonable. In my view, you cooked your own goose. Sorry.

The initial allegations, the results of that investigation, became irrelevant. And at that point, so did any evidence regarding the head-teacher's earlier conduct.

You were dismissed fairly and squarely as a result of your own actions in persistently refusing to comply with a management instruction. Which would be particularly serious given the school's legal obligations to the children, and to safe-guarding.

Your argument that the suspension was not legitimate so you could not be dismissed for breaching the terms of your suspension is non-starter. It simply holds no merit in law, for the reasons outlined above.

Sorry that this is not what you want to hear.

Dx

PS - I notes SarEl's name mentioned. I haven't visited the other forum or read what she has said. It is perfectly possible that she has given a different reasoning (she and I have often differed in our legal reasoning - in employment law there is often more than one road to a destination) .... but I'd bet my house that she came to the same conclusion as me - that the tribunal was entitled to conclude that the dismissal was fair.

Pricivius

SarEl wrote: »

And yes, the OP is sure, as am I. I do not know what your company background is, or whether you are legally trained. But this is a school. Their reference must, by law, include relevant details and information. Regardless of what allegations may or may not have been true, the OP was suspended and forbidden contact with pupils (amongst others I assume). This was not negotiable, yet the OP continued such contact despite several instructions to desist. This in itself is a child protection issue, and the school is required by law to disclose it to any relevant employer - any other employer dealing with vulnerable groups, such as children, the elderly, or the mentally or physically disabled.

Sorry to have to correct you on this - the advice you have given is generally spot on, But this was brought to my attention, and not by Uncertain (at least I am fairly sure not!) and I had to say something.

Thanks for answering that point - I am not aware of the referencing procedures for schools as it is not an area I have ever been involved in. I figured it was worth asking just in case the OP is worrying over nothing but as it is clearcut, it's a closed avenue.

Pricivius

Uncertain wrote: »

Sadly that is not the point!

Agreed - I'm afraid if that's all you have in terms of evidence that this was the reason for dismissal then it's no surprise that the Tribunal found in your employer's favour. What you have is speculation, presumption, conjecture and a conspiracy theory - Tribunals are unlikely to base decisions on them, I'm afraid.

Uncertain

SarEl wrote: »

Sorry to have to correct you on this - the advice you have given is generally spot on, But this was brought to my attention, and not by Uncertain (at least I am fairly sure not!) and I had to say something.

Wasn't me - honest Guv!!

Seriously though, I'm not a member of the other forum despite several invitations to join. However I do occasionally suggest poster's here seek SarEl advice for complex issues.