Francis Mortin secures success in Employment Tribunal for Teacher found to have been unfairly dismissed & victimised

Francis Mortin, instructed by Shazia Shah at Irwin Mitchell LLP, represented primary school teacher Miss Andrea Mairs at a final hearing in the Liverpool Employment Tribunal that spanned 7 days in September and October 2023.

By way of a Reserved Judgment sent to the parties on 3 January 2024 (and published on the GOV.UK website on 12 January 2024), the Employment Tribunal upheld all of Miss Mairs’ complaints. This included claims for unfair dismissal, five allegations of victimisation connected to raising issues of racial discrimination and a claim for breach of contract relating to notice pay.

CASE OVERVIEW

Miss Mairs, who identifies as a British woman of black skin colour, was employed as a Teacher at King’s Road Primary School from 1 September 2001 until she was dismissed with notice on 30 April 2022. Throughout her near 20 years’ service, she had never been issued with a formal disciplinary sanction. In addition to this, she had only once previously invoked the formal grievance procedure in connection with an altercation with a colleague in the 2017/2018 academic year.

Over the course of several years, particularly from 2016 through to July 2019, Miss Mairs raised concerns with staff at the school over issues that she perceived may have amounted to micro-aggressions and treatment which she considered could have been construed as being discriminatory in nature. Specific examples were included in a grievance Miss Mairs raised on 7 October 2019.

In June 2019, Miss Mairs was observed whilst teaching as part of a normal peer review process and was found to be performing well. Her performance was never raised as an issue in the matters that later arose.

On 1 July 2019, the Senior Leadership Team (“SLT”), raised a collective grievance against Miss Mairs setting out six heads of allegations. Miss Mairs was informed of the grievance at a later meeting. She initially refused mediation with a view to the grievance being formally investigated. Miss Mairs was understandably shocked at what she read in the grievance and was then too unwell to attend the school save for a few days at the end of the Summer Term. Over the Summer, she considered mediation but had concerns over this process given the power imbalance as there were six senior Teachers in the SLT against her.

In early September 2019, Miss Mairs attended an inset day. On that day, none of the SLT greeted or spoke to Miss Mairs. She became distressed, had a panic attack and went off sick. She did not return to the workplace thereafter.

On 7 October 2019, Miss Mairs submitted a formal grievance with the assistance of her Trade Union representative. This identified instances that she felt may have amounted to racial discrimination. This was then supplemented by a further letter sent on 18 November 2019 in which Miss Mairs referred to “Blackophobia”.

Over the remainder of 2019 and into 2020, both grievances were investigated and outcomes were delivered by August 2020. The investigation outcomes upheld the SLT grievance and dismissed Miss Mairs’ grievance finding that the latter had been submitted in bad faith as an act of retaliation. Miss Mairs then appealed but this too was unsuccessful.

Following the conclusion of this process, Miss Mairs attended an occupational health assessment confirming that she would now be able to return to work. On receiving this information, in November 2020, the School informed the members of the SLT of Miss Mairs’ impending return. By way of several emails, the SLT effectively refused to work with Miss Mairs and threatened to walk out on the School if she returned.

On receipt of these emails, the School suspended Miss Mairs and commenced an investigation into whether there had been an irreparable breakdown in the working relationship. This process recommended that Miss Mairs be invited to a “dismissal hearing”. This eventually took place in front of a disciplinary panel in early 2022 and resulted in Miss Mairs being dismissed on notice. She appealed but was unsuccessful.

As to her dismissal, Miss Mairs was issued with her notice of dismissal by way of an email sent late on 28 February 2022. The School paid Miss Mairs notice pay of 12 weeks in accordance with the statutory minimum which expired at the end of the Spring Term. In doing so, 8 of those 12 weeks took place during the Spring term and an additional 4 weeks’ notice was paid in lieu. 

Miss Mairs instructed Irwin Mitchell LLP and issued a claim in the Employment Tribunal against Trafford Borough Council and the Governing Body of King’s Road Primary School. As the School is a maintained school, Miss Mairs’ employer was the former. The latter was responsible for day-to-day staffing matters.

LEGAL CLAIMS

In addition to claiming that her dismissal was unfair, Miss Mairs claimed that her contract stipulated that the notice she was entitled to had to expire at the end of a term. Miss Mairs claimed she had only had the chance to read the email sent late on 28 February 2022 on 1 March 2022 and that this was the date she was given notice. This meant that due to the minimum notice she was entitled to, this being 12 weeks, then the School had failed to give her sufficient notice and she was entitled to be paid up until the end of the following Summer Term; namely she was entitled to notice pay up until 31 August 2022.

As to her victimisation claim, she alleged that she had been subjected to detrimental treatment for raising a grievance complaining of race discrimination on five occasions. In particular:

1. on 11 and 12 November 2020, when the SLT expressed that they could no longer work with Miss Mairs if she returned to work from her sickness absence;
2. on 13 November 2020, the School informing Miss Mairs it would be carrying out an investigation to consider whether her employment should be terminated due to a breakdown of trust and confidence;
3. when investigating whether Miss Mairs’ employment should be terminated, the School took the content of her grievance into account;
4. on 24 January 2022, the School invited Miss Mairs to a “dismissal hearing”; and
5. her dismissal.

Old Trafford Borough Council and the Governing Body of King’s Road Primary School denied liability in connection with all of the claims. They argued that Miss Mairs’ dismissal was due to a irretrievable breakdown in working relationships, her grievance complaining of race discrimination was brought in bad faith and therefore could not amount to a protected act, in any event the acts complained of were not motivated by any such protected act, that her interpretation of the contract of employment and notice provisions was wrong and ultimately that the School had acted reasonably in dismissing her.

When the matter came before the Employment Tribunal, it had to grapple with various issues including its interpretation of Miss Mairs’ contract of employment against the Burgundy Book, what the reason for dismissal was, whether it was within the range of reasonable responses open to the employer, whether the grievance had been brought in bad faith and, if not, whether this was an effective cause for the detrimental treatment complained of.  

OUTCOME

The Employment Tribunal upheld all of the claims and listed a further remedy hearing to determine the issue of compensation. In the 54-page Judgment, the Employment Tribunal largely accepted the submissions Mr Mortin advanced and utilised the same in coming to its conclusions. The matter will be listed for a remedy hearing to determine how much compensation Miss Mairs is entitled to.

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