Industrial Tribunals Northern Ireland Decisions

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Cite as: [2014] NIIT 1668_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1668/13

CLAIMANT: Elizabeth Lewis

RESPONDENTS: 1. Board of Governors of Bleary Primary School

2. Southern Education and Library Board

DECISION

The unanimous decision of the tribunal is:-

(1) The claimant was not unfairly dismissed and her claim is therefore dismissed.

(2) The claimant is entitled to payment in lieu for statutory annual leave accrued but not taken for the 2012/2013 and 2013/2014 leave years. The respondents are ordered to pay the claimant the sum of £2,491.40.

Constitution of Tribunal:

Employment Judge: Employment Judge McCaffrey

Members: Mr A Barron

Mr A White

Appearances:

The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by Worthingtons Solicitors.

The respondents were represented by Mr M Wolfe, Barrister-at-Law, instructed by Education and Library Boards Solicitors.

1. ISSUES

The issues in this case relate to two claims brought by the claimant: one of unfair dismissal in relation to her dismissal by the first-named respondent from her post as teaching Vice-Principal at Bleary Primary School on 31 October 2013; the second claim relates to a claim for payment in lieu for accrued but untaken holidays over a period of some six years when the claimant was variously on sick leave or on precautionary suspension. These claims are disputed by both respondents.

At the outset of the hearing, the Employment Judge realised that she recognised one of the respondent’s witnesses, Mr Johnston, as the brother-in-law of a friend of hers, and whom she had met briefly a number of years previously. She did not consider there was a conflict of interest but this was declared to the parties. After allowing a period of consultation, both representatives indicated that they were content to proceed and did not wish to raise any objection.

2. THE FACTS

2.1 The tribunal heard oral evidence on behalf of the claimant from:-

(1) the claimant;

(2) Ms Niblock, Forensic Accountant; and

(3) Dr Loughrey, Consultant Psychiatrist.

2.2 We also heard evidence on behalf of the two respondents as follows:-

(1) Mrs Edith Harrison, Chair of the sub-committee which first met with the claimant in relation to the risk assessment report which had been done on her and subsequently Chair of the disciplinary sub-committee;

(2) Mrs Upritchard, who was a member of the disciplinary sub-committee;

(3) Mr Dennis Johnston, who was Chairman of the Appeals Committee;

(4) Mr Patrick Hanna, Independent Educational Consultant;

(5) Mrs Marion Ferguson, Health and Welfare Services Manager at the time and currently a senior HR Manager with the respondent;

(6) Ms Jenny Lambe, senior HR Manager; and

(7) Ms Helen Duffy, Head of Human Resources for the second respondent and for the Western Education and Library Board.

2.3 We were also provided with two lever arch files of documents amounting to over 700 pages, only a fraction of which were opened to us in the course of the hearing. On the basis of the documents opened to us and the evidence heard, we make the following findings of relevant fact.

2.4 The claimant in this case was appointed as teaching Vice-Principal at Bleary Primary School (“Bleary PS”) in January 1996. She had qualified as a teacher in 1981 and worked principally within the primary education sector. Bleary PS is a controlled school and therefore while her employers were the Board of Governors of the school (the first respondent), the employing authority was the Southern Education and Library Board (“SELB”) (the second respondent).

2.5 In June 2005 the claimant collapsed at school and was found to have a subdural haematoma (perhaps more commonly referred to as a clot on the brain) which required neurosurgery. She was absent from work until January 2006.

2.6 From January 2006 until August 2006, the claimant returned to work but was unhappy that in the absence of the Principal (who was also on sick leave), she was not allowed to act-up as Principal. Instead, Joy Wilson (who had been acting-up previously) continued acting up as Principal. The claimant indicated that she felt she was being encouraged to not come back to school prior to her return in January 2006. She said she had had a call with the acting Principal indicating that parents were concerned regarding her return and that the school was running well in her absence. She also indicated that she had a phone call with the Chairman of the Board of Governors where she indicated that he tried to advise her that it would be best not to return as there was concern about how her return would impact on students and staff. We did not hear any evidence from either Mrs Wilson or Dr McCammick, the Chairman of the Board of Governors as to the exact nature of these alleged conversations, nor was there any other evidence of them amongst the documents opened to us. The claimant went off on sick-leave again on 26 August 2006 due to work-related stress and remained certified as sick until 4 April 2011.

2.7 In 2010, Bleary PS received a regular inspection from the Department of Education. The outcome of that inspection was that the Inspectorate expressed concerns over the level of absence amongst senior staff, given that the Principal had been absent for five years and Vice-Principal had been absent for four years, both on sick-leave. A report in a local newspaper in July 2010 quoted the Chairman of the Board of Governors as saying that because of the drop in numbers at the school, there may be no need for a Vice-Principal.

2.8 In November 2010, a draft budget for the school (to be submitted to SELB) anticipated the level of staff dropping to 3.4 over the next three years. At this time, Bleary PS was a four teacher school. The Board of Governors refused to approve that draft budget on the basis that the anticipated numbers would be rising and the complement of teaching staff appears to have remained at four, including the Principal, over the relevant period.

2.9 In or around 2008, the claimant brought a personal injury claim in the High Court against the school management which was ultimately settled on a confidential basis in November 2010. We were not made aware of the exact nature of these proceedings, or given any detail of the terms of settlement, apart from the fact that there was reference in other documents to the claimant having made allegations of harassment and that the claimant agreed as part of the terms of settlement to apply for ill-health retirement, which she did in January 2011. As a result of that application, the Pensions Branch of the Department of Education wrote to her on 17 February 2011, notifying the claimant that she was eligible for partial incapacity benefits, and she subsequently received notification of the amount that she would receive on retirement which was well below her annual salary and also rather less than the full pension she would have received had she continued to work to age 60 or 65. We were advised by one of the SELB HR witnesses however that on ill-health retirement, teaching staff are credited with additional years of service amounting to half of the number of years between their actual retirement date and their 65^th birthday.

2.10 It was put to the claimant in cross-examination that she had agreed as part of the settlement to apply for ill-health retirement and that this was consistent with the views she had expressed to Dr Curran and Dr Loughrey (amongst others) about her reluctance to return to teaching and to Bleary PS in 2009, some three years after she had gone off on sick leave. The claimant denied this, indicating that she had applied for ill-health retirement because she believed she had to do this as part of the settlement. She did not accept the implication that once granted partial ill-health retirement (on the basis that she was not fit to return to teaching but was fit for other work) she would accept that ill-health retirement and not seek to return to teach at Bleary PS, although she did also say that following the settlement of her claim she now felt she could discuss a return to work. Having heard the evidence, we do not accept that the claimant was entirely frank in her evidence in this matter. We accept the evidence she gave to the doctors in 2009 that she was keen to get out of Bleary PS, which is consistent with her agreeing to apply for ill-health retirement as part of the settlement in November 2010. As an intelligent and experienced teacher who was familiar with systems within the Education Sector, we believe the claimant was well aware that agreeing to apply for ill-health retirement implied that if granted an ill-health pension, she would then retire. It was her assertion that the issue of a “fit note” by her GP in March 2011 was the doctor’s decision. She suggested that her GP, who had also completed the medical part of the ill-health retirement forms on her behalf, was concerned she was not eligible for ill-health retirement in the first instance. We believe that she changed her mind about this once she saw the computation of the pension she would actually receive.

2.11 In March 2011, the claimant attended her General Practitioner on what she described as a routine visit. In the course of that visit, she discussed with her doctor the outcome of the application for ill-health retirement. As a result of that discussion, she said her GP indicated that he believed that she was in fact fit for work and could return. Accordingly, he issued her with a fit note effective from 4 April 2011. The claimant submitted this to the Southern Education and Library Board and phoned them in relation to her return to work at Bleary PS. In the meantime, she also submitted the doctor’s fitness certificate to the Pensions Branch.

2.12 On 8 April 2011, the Chairman of the Board of Governors of Bleary PS wrote to the claimant regarding her ill-health retirement and the termination of her employment. It appears this letter may have been sent without the Board of Governors having been made aware of the claimant’s fitness note.

2.13 On 5 May 2011, the Department of Education Pensions Branch reversed their decision regarding the claimant’s ill-health retirement on the strength of the GP’s report. The initial decision to grant ill-health retirement had been made on the basis of a number of specialist reports including Occupational Health Reports and psychiatric assessments of the claimant carried out by consultant psychiatrists in 2009/2010. No updated consultant’s report on the claimant was sought before the decision was reversed, which is perhaps surprising.

2.14 There was concern amongst the HR staff at SELB that the decision of the Department of Education to grant the claimant ill-health retirement had been reversed on the strength of a GP’s report. On advice from the SELB, the Board of Governors decided to place the claimant on precautionary suspension on 17 May 2011 and she was therefore suspended on full pay. She was advised that this was pending an assessment by Dr Philip McCrea, an Occupational Health Specialist regarding her fitness for work. Mrs Ferguson’s letter of referral to Dr McCrea asked him to consider the claimant’s fitness to return to the role of teaching Vice Principal and also noted, “Mrs Lewis has stipulated that on her return to work she must be provided with a stress-free working environment”.

2.15 The claimant had two attendances with Dr McCrea in June and August 2011, lasting a total of 160 minutes. In a report dated September 2011, he assessed her as being fit for work but indicated that, “In respect of the issue surrounding a
stress-free working environment, it is my medical opinion that a stress-free working environment is not reasonably achievable at this stage”. The report was brief and Dr McCrea noted in it that he was unable to include a number of matters because the claimant had indicated to him that she did not wish him to provide some information that she considered to be confidential. The claimant had attached an addendum to this report, challenging a number of matters in it. Mrs Ferguson, one of the SELB officers who gave evidence, indicated that she had intended to send Dr McCrea a number of medical reports on the claimant’s medical history to assist in preparation of his reports but the claimant objected and indeed, lodged a grievance in relation this matter against Ms Ferguson in October 2011.

2.16 In the autumn of 2011, the SELB commissioned a Well-Being report in relation to Bleary PS from Mr Hanna who is an Educational Psychologist. This report was a follow-up to a report on the school which Mr Hanna had carried out in 2007. The reason for this report was to consider whether there were any particular factors in the working environment which were causing problems or difficulties for staff.

2.17 Once the Occupational Health assessment of the claimant was complete, the Principal of Bleary Primary School (Miss Neill) wrote to the claimant on 27 October 2011, asking her to meet to consider the way forward. The evidence given by HR staff from the SELB was that to facilitate a teacher’s return to work, it was usual to consider any updating and support training which would be required and to discuss with the staff member concerned how this would be implemented. It was envisaged that the claimant would not return to teaching full-time initially as she would need to undertake some updating training, after an absence of five years.

2.18 The claimant objected to being asked to meet at the school which she considered was not a neutral environment and asked for a meeting outside the school premises as a “reasonable adjustment”, although she had not any time argued that she was a disabled person. In her evidence to the tribunal, the claimant argued that her return to work should be managed under the SELB Absence Management Policy, which referred to a neutral venue for meetings. She also noted that it “would not be conducive to staff” as one of the staff would be aware the claimant would be returning to the post she was filling in the claimant’s absence. When it was put to the claimant in cross-examination that it was perfectly reasonable for the Principal to ask her to attend a meeting at the school to which she would be returning, the claimant gave a confused response, indicating that as she was still under suspension at this time, she was under the management of the Board of Governors and did not accept she would be under Miss Neill’s management until she returned to work. She asked for a full agenda in relation to the meeting. Miss Neill wrote to the claimant again, rearranging the meeting for 9 November 2011 but the claimant did not attend. On 16 November 2011, the Chairman of the Board of Governors wrote to the claimant outlining what had been intended to be covered at the meeting, enclosing a copy of a draft programme of support and inviting her to return on 21 November.

2.19 On 18 November (the Friday before Monday, 21 November) the claimant e-mailed Miss Neill, asking for an undertaking that she would returning to a stress-free environment and asking whether any risk assessment had been carried out. She also lodged a request to take annual leave which had accrued while she was on sick leave before her return to work, although she had not raised this at any other time between April and November 2011. In April she had been advised that a scheme regarding statutory annual leave was under consideration. The claimant was written to by the SELB setting out the reasons why they refused the request to take accrued leave, on the basis that the entitlement to leave was set off against periods of school closure. Under a collective agreement agreed between the teachers’ unions and the employing authorities in 2011 - TNC 2011/3 - it was accepted that Statutory Annual Leave (SAL) of 28 days would be off-set by any period of school closure in the leave year in question. The leave year was defined as 1 September - 31 August each year, and closures both before and after the period of sick leave period counted towards SAL. The agreement also stipulates that if the return from sick leave is so close to the end of the leave year that there was not enough time to take all the SAL entitlement, or where sick leave extended beyond 52 weeks, a teacher must be allowed to carry over any balance of the Statutory Annual Leave to the following leave year. Leave was to be taken during remaining periods of school closure after 28 days SAL for the current leave year had been accommodated.

2.20 On 21 November, the claimant returned to work. She was asked by the Principal to undertake some computer-based training on her own and so had no contact with the children, but she did speak to other staff at break time. Her evidence was that she felt staff were welcoming to her. Later that morning, the Principal came to her to say that she (the Principal) was feeling unwell and would have to leave school. She therefore suggested that the claimant would go home for the rest of the day and come in again the next morning. The claimant asked Ms Neill at that stage if she would act-up in the Principal’s absence but did not get a clear answer from the Principal at this point.

2.21 The evidence from Mrs Ferguson was that the claimant’s query in relation to a risk assessment led her to consult Ms Duffy and Mrs Murphy and then for them to seek advice from senior counsel. The outcome of that consultation was that the claimant was placed back on precautionary suspension on 22 November on full pay. The claimant said that she had come to school on 22 November, and was then taken aside by the Principal. The Principal, the Chair of the Board of Governors and a Board Officer then met the claimant and she was again placed on precautionary suspension pending the outcome of a risk assessment. Mr Hanna was then asked to include a risk assessment on the claimant as part of his well-being assessment on Bleary PS. As these reports were pivotal to subsequent events, we set out the process and outcome in some detail.

2.22 Mr Hanna undertook the Well-Being assessment at Bleary Primary School in January 2012. The Well-Being Review Measure (WBRM) used by Mr Hanna was based on the seven criteria for a healthy workplace as defined by the Health and Safety Executive in their guidelines. He explained to us in his evidence that each member of staff could complete the well-being questionnaire individually (either on-line or manually) and they were then offered individual meetings so that they could clarify and expand on their replies. There was also a focus group discussion with the staff at Bleary Primary School and further meetings later on with the staff on an individual basis. Eleven out of twelve of the current staff completed the Well-Being Assessment. The claimant met with Mr Hanna on 3 March 2012 to complete and discuss the risk assessment also using the same WBRM. She was accompanied by her union representative Mr Longman and Mr Hanna explained to her in some detail the way that the risk assessment worked and how it would be analysed. Mr Hanna made us aware that participants were asked to score particular statements and questions from 1-5, according to whether they strongly agreed with the statement (scoring 5) or whether they strongly disagreed with the statement (a score of 1). He said that any score above 3.5 was considered to be a strength within the school while scores below 3.5 required development. The average score within the school (including the claimant’s score) was 3.87 and the lowest scores were those relating to change (3.59) and work/life balance (3.6). The staff overall scored the school highest in relation to relationships and support for each other. The claimant’s scores however were low, averaging 1.8. Mr Hanna commented that these were the lowest scores he had ever seen from a teacher. He noted that the scores of the school overall on the Well-Being Report were slightly lower than the comparable report carried out in 2007.

2.23 In the Well-Being Report which he completed in March 2012, Mr Hanna included in Appendix 2 a number of anonymised comments which the claimant and other staff had made in relation to matters which caused him concern within the school. There was clear concern regarding prospects for change, including issues in relation to job security. It was noted that one member of staff had been there on a temporary basis for quite a long period of time (presumably covering the claimant’s post). However, there was also concern expressed by a number of staff regarding what would happen if and when the claimant returned to work. The claimant indicated that she had been bullied and harassed; indeed, she said she “was being” bullied and harassed by staff, the Principal, the Board of Governors and pupils and had been told that she was not wanted. Other staff commented that they felt that there was “unresolved tension”. A number of them commented that there was a positive family atmosphere in the school and expressed their concern that if the situation with the Vice-Principal (the claimant) was not resolved, this would affect the current positive attitude. There were comments made about the fact that another staff member had been implicated by the claimant in her High Court action which he/she had found upsetting. The perception of other staff regarding the claimant’s return on 21 and 22 November was that she had not reciprocated the friendly approach of other staff to her. Concern was also expressed about the impact of the claimant’s return on staffing levels within this school and how her return would impact on the time that the Principal would have to devote to dealing with that issue.

2.24 This Appendix was not provided to the claimant at this stage but in March 2012 she was provided with a copy of the Risk Assessment report. The Well-being report was provided only at this stage to the school, the Board of Governors and to the Southern Education and Library Board. In the Risk Assessment, the claimant was reported as saying that she had no confidence in the risk assessment process. She indicated that she felt she had been given no other option than to participate in the process and that she had “returned to work under the threat of dismissal”. Her comments referred a great deal to the historic situation in the school and the difficulties she said she had experienced. Mr Hanna noted in his comments on the report that the claimant had recorded an exceptionally low score on a number of issues. She had indicated that a number of the questions raised did not apply to her so she did not record any score for these. She subsequently challenged the scores, saying that Mr Hanna had recorded a score of “1” for questions she felt did not apply, but it is clear that no score was recorded for these questions and that the claimant’s average score was calculated only from the questions she did answer. Mr Hanna noted in the report:-

“At the end of the WBRM Mrs Lewis was invited to discuss in more detail possible ways forward in addressing her stressors. Mrs Lewis reported that relationships between her and her staff colleagues, Governors and SELB Officers had become very difficult and that their recent communications had become increasingly more vociferous. As a result of this, she felt she could not make any more suggestions or recommendations for a way forward.”

He commented:-

“It was obvious to the author that in both Mrs Lewis’ demeanour during this assessment and in her answers to the WBRM that she feels under pressure and is clearly stressed with regard to her current status. Her scores are consistently at the lowest end of the WBRM, reflecting her view that the working environment in Bleary Primary School is a very unhealthy one ... Mrs Lewis does not accept she has contributed anything to her current situation and felt she could not make any suggestions/recommendations for the way forward in addressing her stressors/risks.”

Mr Hanna went on to consider the possibility of mediation but indicated that in this particular case, he felt that such an approach would not be beneficial because of seemingly irreconcilable differences between the main parties. He set out six options which he thought should be considered, although he noted that there may be other options which he had not considered. The options were as follows:-

(1) All parties agree in a way to manage their differences and Mrs Lewis returns as Vice-Principal to Bleary Primary School.

(2) Mrs Lewis resigns from her post as Vice-Principal for Bleary Primary School.

(3) SELB and Governors terminate Mrs Lewis’ employment contract as
Vice-Principal for Bleary Primary School.

(4) Mrs Lewis reapplies for ill-health retirement from her post as Vice-Principal at Bleary Primary School.

(5) SELB and Governors make Mrs Lewis redundant from her post as
Vice-Principal of Bleary Primary School.

(6) SELB and Governors and Mrs Lewis consider possible secondment arrangements.

2.25 Following this a copy of the risk assessment report was sent to Mr Longman by Mr Hanna on 13 March 2012, by e-mail, and he responded by telephone on 14 March to acknowledge receipt and say it had been sent to the claimant. Mr Hanna had requested comments by 16 March, but no comments were received from the claimant before Mr Hanna sent the report to SELB on 16 March. On 18 April Helen Duffy from SELB wrote to Mr Longman, asking him to comment on options 4 and 5. It was explained in the covering letter that secondment was not an option, due to financial constraints within the Southern Education and Library Board. Mr Longman replied on 21 May 2012 that the claimant was not interested in redundancy and as she was not ill, she did not wish to apply for ill-heath retirement.

2.26 On 23 May 2012, the Board of Governors considered the responses given by the claimant to these proposals and resolved to meet the claimant to discuss Options One, Two and Three and any other options. A sub-committee comprising of Mrs Edith Harrison, Mrs Elizabeth Harrison and Mr Reggie Donaldson was appointed. On 6 June, the sub-committee met with the claimant and her trade union representative. The meeting lasted from 6.00 pm until 8.15 pm. The claimant disputed the risk assessment, challenged Mr Hanna’s findings and requested a further risk assessment. She focused most of her comments on historic issues, going back to the inspection in 2010 during her sick leave and said her name had been removed from documents to do with the school and from the teacher’s register as being employed at Bleary PS. She also complained about the manner of her suspension on 22 November 2011. She said she had felt isolated from the school community for 2 days and that there had been a “strained atmosphere” with the Principal. The claimant challenged why this meeting had been convened under the SELB policy to do with Termination of Teachers’ - employment on grounds of ill-health (TNC Circular 2000/4) rather than the Absence Management Policy, and was told by Mrs Murphy, the HR representative present, that this was due to the fact that the precautionary supervision was under TNC 2000/4. In her evidence to the tribunal, the claimant said she felt that her return to the school in November 2011 had gone well, staff and the Principal had been friendly to her and she felt that in time relationships would develop. She believed she could have a good partnership with the Principal. In cross-examination it was put to her that this was very different to what she had said to the two sub-committees in 2012 and 2013 (see below). It was also put to her that because of her response to the WBRM, Mr Hanna formed the view that relationships with staff could not be improved: her response was that so much of a teacher’s time is spent in the classroom that she would only spend a small percentage of the day with other staff and the need for teamwork was not great, it would really only occur at meetings.

2.27 On 6 June 2012, the claimant did not respond to any questions which were put to her about Options One, Two and Three, stating that Options 4, 5 and 6 were not win-win in her opinion. She took the view that the differences had been portrayed as irreconcilable and that the way forward was a further risk assessment, possibly by the LRA. She did not accept that Mr Hanna was independent and commented that she hoped he had “very high indemnity insurance”. At the end of that meeting, the claimant asserted that she had asked the committee if they were considering sacking her and she was told that this was not being considered. When this was put to Mrs Edith Harrison, who gave evidence to the tribunal, her response was that the claimant had in fact shouted at her at the end of the meeting, saying that if she wanted to sack her (the claimant), she (Mrs Harrison) should go ahead and sack her. Mrs Harrison’s response was to tell the claimant that this was not what the meeting was about, it was to explore options. On balance, we accept Mrs Harrison’s account of this meeting. Following this meeting, the sub-committee presented their report to the Board of Governors at their next meeting on 3 July 2012. The report recommended that, on the basis of the claimant’s response at the meeting of 6 June and her apparent unwillingness to move forward, they should move to consider termination on grounds of “some other substantial reason”.

2.28 On 3 July 2012, the Board of Governors met, considered the report and decided to accept the sub-committee’s recommendation. This motion was proposed by Mr Denis Johnston and seconded by Mr McKitterick. A sub-committee was then appointed to meet the claimant in relation to the proposal to consider termination of her employment. That committee composed of Mrs Edith Harrison, Mrs Upritchard, and Mr McKitterick. An Appeals Committee comprising of Mr Johnston, Dr McCammick and Mr Russell was also appointed at that meeting. Although the membership of the sub-committees was not recorded in the minutes of that meeting (which we find astonishing), we were given oral evidence about the appointment of these sub-committees from Mrs Upritchard and Mrs Harrison and we accept the evidence given. There were nine members of the Board of Governors in total, and the quorum for meetings was five. SELB witnesses gave evidence that Boards of Governors often conducted business through sub-committees of three members and that the way this matter was approached by Bleary PS was the usual and established method of dealing with potential disciplinary matters.

2.29 On 18 July, a letter was written to the claimant by the Chairman of the Board of Governors asking her to come to a meeting with the sub-committee. The letter refers to the meeting of 6 June and the conclusion by that sub-committee that:

“there was no real willingness on your part to engage in real exploration of such issues (Options 1, 2 and 3), bar an oblique reference made by you that Mr Hanna had gone beyond his brief in recommending dismissal under Option 3”.

The letter went on to set out the possible options, the claimant’s response to options 4 and 5 and her lack of any other suggestions on the way forward. The final paragraph refers to the standard statutory dismissal and disciplinary procedures, copies of which were enclosed, and requests the claimant to meet a sub-committee established by the Board of Governors,

“to discuss the contemplated termination of your employment on the grounds of some other substantial reason, namely that in light of Mr Hanna’s conclusion and findings (and your own contribution to this process) your reintegration into Bleary Primary School may well not be practically possible having a highly detrimental effect on both your own welfare and that of other staff with a consequential impact on staff relationships and the efficient operation of the school”.

No meeting could be arranged until September 2012 due to the claimant’s representative being absent on leave. At the meeting arranged for 10 September, the claimant asked for a copy of the Well-being report as she had not seen it and the meeting was adjourned to allow her to consider that report. The Well-Being report was referred to in the Risk Assessment report and there was no indication that the claimant had requested it previously. The claimant raised concerns going back to 2006 but indicated that she thought she could go back to work with the new Principal as there was a “new order”. There was also some discussion regarding voluntary redundancy and the claimant said she would look at the information and make a decision. The meeting lasted from 4.30 pm until 5.45 pm and the notes comprise 14 pages. A letter was sent to the claimant on 14 December from Mrs Harrison, saying that as she was not interested in voluntary redundancy they would proceed with the Step 2 meeting. A further meeting was planned for 8 January 2013 and that meeting was delayed until 16 January 2013. At that meeting, the claimant was very emotional and upset so the meeting did not go ahead. The sub-committee had an informal discussion with Mr Longman regarding voluntary redundancy and options for the claimant to return to work and the sub-committee was awaiting a further response from the claimant. Another meeting was arranged for 18 February, but the claimant did not attend as she had not been notified of the meeting by her union representative. On 4 March 2013, the claimant submitted further sick certificates. Further dates for meetings were suggested but the claimant was unable to attend due to illness. Finally, another meeting was arranged for 27 May 2013. The claimant wrote to SELB to confirm her attendance “under duress” as she claimed her complaints about procedural matters had not been addressed. The claimant attended, as did her union representative. The claimant however refused to have her union representative in the room with her. She read out a statement to the sub-committee, which included allegations on her part that the sub-committee were biased against her and that members of the committee had already been involved in decisions regarding her employment. The claimant suggested an independent panel should be appointed. She did not dispute that Mr Hanna had accurately reflected her views in the risk assessment report. She did not engage in any discussion with members of the sub-committee and at the end of reading her statement she left the meeting without any further discussion. She did not leave a copy of her statement with the sub-committee and while Mrs Upritchard took some notes, she commented that the notes were incomplete as the claimant spoke more quickly than she could write.

2.30 On 4 June, Mrs Harrison sent a letter to the claimant advising her that the
sub-committee proposed to make the determination that the claimant should be dismissed and inviting her to make oral or written representations to them under Schedule 5 of the Education (Northern Ireland) Order 1998. The letter indicated that the sub-committee proposed to meet to hear the claimant’s oral representations on 12 June 2013.

2.31 On 7 June, the claimant sent a letter to the sub-committee, enclosing a number of documents (not identified in the letter) which she believed were relevant. This included notes from meetings with Mrs Joy Wilson (Acting Principal at Bleary PS in 2005/2006). The claimant challenged the procedures followed by the Board of Governors, Mr Hanna’s findings and refused to meet the sub-committee any further. She did not clearly set out how the documents she enclosed were relevant to the issues under consideration, and Mrs Upritchard’s evidence was that the sub-committee could not see how they were relevant. She asserted that she had not waived her right of accompaniment and that she had attended the 27 May meeting under duress.

2.32 On 12 June, the sub-committee met again. Following that meeting, they sent a letter to the claimant dated 17 June 2013, responding to the points made by the claimant and disputing some of her assertions, advising of their determination to recommend her dismissal but giving her the right to appeal to a further
sub-committee of the Governors. The reasoning given by the sub-committee for the recommendation to dismiss was that the claimant’s reintegration into Bleary Primary School in its view was not practically possible. They continued, “The sub-committee found that your return to teaching duties would have a highly detrimental effect both on your own welfare and that of other staff with a consequential and significantly adverse impact on staff relationships and the efficient operation of the school”. They noted that the sub-committee had made this determination having considered all the evidence available to it and in particular the findings and recommendations made by Mr Paddy Hanna, the issues raised by the claimant on 10 September, and the subsequent adjourned meetings on 16 January, 4 March and the final meeting on 27 May. They also noted that the claimant had failed to address the issue of her proposed dismissal and that the documentation she had sent with her letter of 7 June was not considered relevant to the matters under consideration. The letter also set out the reasons why they did not agree with the assertions made by the claimant in her letter of 7 June.

2.33 On 21 June 2013, Helen Duffy, the Head of Human Resources at SELB wrote to the claimant following a telephone call and e-mail correspondence she had had from the claimant’s husband when he queried the procedures followed in dealing with the claimant’s proposed dismissal. Ms Duffy indicated that she thought it appropriate to address these issues direct with the claimant. She clarified that the relevant procedures were the Statutory Disciplinary and Dismissal Procedures and Schedule 2 to the Education (Northern Ireland) Order 1998 rather than TNC 2000/4 (referred to above) or TNC 2007/5 (Disciplinary Procedure for Teachers including Principals and Vice-Principals, in Grant Aided Schools with fully delegated budgets).

2.34 On 24 June, the claimant sent a letter to the Board of Governors, indicating that she wished to appeal and requesting some information and various documents. On 26 June, the Chairman of the Board of Governors wrote to the claimant setting out details for the appeal procedure, setting out the membership of the sub-committee and providing documentation as she had requested.

2.35 On 3 July 2013, the Appeals sub-committee met. Mr Johnston said they had been disappointed that the claimant did not attend. They received written representations from the claimant but the claimant did not attend nor did her Union representative. The claimant in her written representation raised issues regarding the formation and membership of the committee, in particular Dr McCammick’s membership and she referred to an article in the local press where he was quoted as saying that because of declining numbers the school no longer required a Vice-principal. This referred to the Lurgan Mail article in July 2010, following an unsatisfactory general inspection of the school. The claimant also challenged Mr Hanna’s independence and the reliance placed on his report, but she did not give any new or different reasons as to why she should not be dismissed from her post.

2.36 Following this, it was Mr Johnston’s evidence that the Appeals Sub-committee deliberated for approximately 2½ to 3 hours on the representations which the claimant had given. He denied that the outcome had been predetermined, indicating that he had been keen to hear from the claimant and consider whether she might still return to the school. The Appeal sub-committee had the benefit of advice from Human Resources staff from the Southern Education and Library Board and they reached the conclusion that they would make a recommendation to uphold the decision to dismiss the claimant. There was to be a meeting of the Board of Governors that evening. Mr Johnston was not able to attend that meeting due to family commitments, but the meeting was attended by Mrs Harrison, who gave evidence to us. No minutes of that meeting appear to have been kept. The School Principal, who was normally Secretary to the Board of Governors was not in attendance at the meeting. Mrs Harrison was clear, however, that the matter was discussed by the full Board of Governors and they confirmed the decision to dismiss the claimant. We accept Mrs Harrison’s unchallenged evidence on this issue, but we wish to record our concern that such an important meeting of the Board of Governors was not minuted. When challenged on this issue, the HR representative from SELB said that this was a matter for the Board of Governors. However, given that throughout this process Board Officers had been in attendance, had advised on the process and assisted in preparation of correspondence, we find it extremely surprising (to say the least) that the Board Officer in attendance at these meetings did not remind the Governors of the importance of minuting the meeting.

2.37 On 4 July 2013, Mr Johnston sent a letter to the claimant upholding the decision to dismiss her and setting out the reasons why her grounds for appeal were refused. Amongst the matters raised by the claimant in her appeal letter of 24 June 2013, was that different procedures had been used. She complained that the procedure had gone on over a period of 27 months and that no right of accompaniment was contained within the letter of 4 June in relation to representation at the sub-committee meeting on 12 June. She also believed that she had not been provided with enough time to prepare a written submission to the sub-committee.

2.38 On appeal, the sub-committee dealt with the points raised by the claimant, namely all-male membership of the Appeals sub-committee, the right to be accompanied, the time to prepare a written submission and the changes in procedure. They pointed out that it was not possible to achieve a gender balance and also ensure that members had had no previous involvement with the procedure. While they acknowledged that the letter of 4 June did not specifically refer to the right to be accompanied, all previous letters did and the letter of 4 June was copied to the claimant’s representative. As she had chosen to make written submissions, she had not been disadvantaged in any way.

2.39 Contrary to the claimant’s assertions that she had been coerced into volunteering for redundancy, it was pointed out that the claimant had been treated the same as all other members of staff in that in being notified of a trawl for voluntary redundancy in anticipation of a reduction in budgets. They also noted that Mr Hanna’s reports in their view were objective, based on robust methodology and using a recognised facilitation process.

2.40 On 5 July 2013, a letter was sent from the Chairman of the Board of Governors to SELB, confirming their determination to dismiss the claimant. On 23 July 2013, the Chief Executive of SELB wrote to the claimant, setting out that she was being given three months’ notice of her termination of employment for “some other substantial reason” and therefore that her employment would terminate on 31 October 2013. Following the notice of dismissal, the claimant contacted the Southern Education and Library Board to ask if there was any further right of appeal but was advised there was no further right of appeal.

2.41 Following her dismissal, the claimant indicated that she had been seeking other work. She had not, however, made any actual applications for posts within the Southern Education and Library Board, nor had she made any applications for jobs in nursery schools or other facilities. Her explanation for this was that she believed she would not be able to complete the application form without referring to the fact that she had been dismissed from her previous employment and she felt that this would count against her. The respondent provided details of posts which had been advertised within the SELB area, none of which the claimant had applied for. She had not, either, registered as a substitute teacher on the NI register for substitute teachers. At the time of the hearing the claimant remained unemployed. As part of her unfair dismissal claim, she sought an award for damages including for three years’ future loss and pension loss, as well as an award for unlawful deductions of wages in respect of six years statutory Annual Leave accrued but not taken during her sick leave from August 2006 until April 2011 and again from March 2013 until the date of termination of her employment.

3. RELEVANT LAW, REASONS AND DECISION

3.1 There are two claims in this case and we set out below the relevant law in relation to each of them. We propose then to set out our decision and the reasons for that decision under the headings relevant to each claim.

Unfair dismissal

3.2 The relevant legislation is to be found in Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides as follows:-

“130. (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

Sub-paragraph 2 goes on to set out the reason will fall within paragraph (2) if it relates to the capability or qualifications of the employee for performing work of a kind he is employed to do, the conduct of the employee, the retirement of the employee, that the employee was redundant, or that the employee could not continue to work in the position he held without contravention of a duty or restriction imposed by or under a statutory provision ...

“(4) In any other case where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

Procedural unfairness

3.3 The claimant’s representative asserted that there had been procedural deficiencies in relation to the procedures followed by the respondents in this case, alleging both of the procedures were broadly unfair and also that there was a breach of the statutory disciplinary and dismissal procedures. Procedural fairness is governed by Article 130A of the 1996 Order which provides as follows:-

“Article 130A - (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if-

(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b) the procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.”

3.4 The statutory disciplinary and dismissal procedures are set out in Schedule 1 to the Employment (Northern Ireland) Order 2003 and comprise what has become known as the three step procedure. The first step is when the employer sets out in writing the employee’s alleged misconduct or characteristics which have led the employer to consider dismissal or disciplinary action against the employee. This must be sent to the employee with an invitation to attend a meeting to discuss the matter. It has become known as the “Step 1 letter”.

3.5 Step 2 of the procedure comprises a meeting which must take place before any disciplinary action is taken, except in the case of a suspension. The employee must take all reasonable steps to attend the meeting. He or she must have been informed in advance of the basis for the meeting and must have an opportunity to consider his response to any information being given against him at the meeting. The employee must be advised of the employer’s decision and notified of a right to appeal.

3.6 Step 3 consists of the appeal. Under the appeal, the employee must notify the employer of his wish to appeal and the employer must then invite him to a further meeting. The employee must take all reasonable steps to attend the meeting. It is stipulated in the procedure that the appeal meeting need not take place before the dismissal or disciplinary action takes effect. After the appeal meeting, the employer must inform the employee of his final decision.

3.7 It has been held by the Employment Appeal Tribunal in Wareing v Stonecladding International that Article 130A(2) (see above) only comes in to play where the statutory disciplinary procedures have been complied with. As has been noted, if the statutory disciplinary procedures have been breached, the dismissal will be automatically unfair and the normal provisions for Polkey deductions will apply. However, in Kelly Madden v Manor Surgery (UK EAT/0105/06/DM) Mr Justice Elias (as he then was) considered what constituted a procedure under Article 130A(2). He noted that the sub-section was in general terms and referred to “a procedure” without limitation. At paragraph 49 of the judgment he indicated as follows:-

“In our view the section is broader in its effect. Whenever a Tribunal is minded to find that the dismissal is unfair for procedural reasons alone, it is open to the employer to show that compliance would, on the balance of probabilities, have made no difference. As the authorities now establish very clearly, this means that the Tribunal must be satisfied that it can fairly and properly determine what would have happened had there been no procedural failing. Sometimes it is simply not possible for it to form a view of what might have been, in which case the employer will not have proved the case. In other cases the Tribunal will not be satisfied that the decision would in all probability have been the same. But where the employer can satisfy the burden placed on him, and the procedural defects do not infringe the statutory dismissal procedures, the dismissal will be fair.”

3.8 In this case the claimant’s case is that the procedures followed by the respondent were unfair in a number of respects. It was argued on behalf of the claimant that the procedures adopted by the respondent failed to comply with the statutory dismissal and disciplinary procedures in that there was no right of appeal after the decision to dismiss the employee. Ms Bradley argued that this decision was taken only finally when the Board of Governors ratified the decision of the appeal
sub-committee, and the SELB formally wrote to the claimant to put her on notice of the termination of her employment in July 2013. It was agreed that there was no right of appeal after that time. It was the respondents’ case however that the decision to dismiss the claimant was delegated to the sub-committee set up by the Board of Governors in July 2012, and that they communicated their decision to the claimant in June 2013, gave her a right to make representations to them and following those representations, gave her a right of appeal to the
appeals sub-committee before the dismissal took effect.

3.9 The claimant’s representative also argued that the procedures were defective under Article 130A(2) in that there was no clear provision under which the Board of Governors could delegate its functions to sub-committees of the Board of Governors. She asserted that because the staffing sub-committee which made the recommendation that dismissal was the only viable option for consideration was chaired by the same person (Mrs Edith Harrison) who chaired the sub-committee which made the determination to dismiss, this was procedurally unfair and not impartial. Ms Bradley also asserted that it was unfair that members of the staffing sub-committee which determined to dismiss the claimant also attended the Board of Governors meeting on 3 July 2012, which agreed to adopt the recommendation that dismissal for some other substantial reason was the only viable option. Likewise members of the appeal sub-committee were also eligible to attend that meeting. She also argued that there had been confusion and lack of clarity as to which rules and procedures prepared by SELB were being used at any given time and that this caused confusion and unfairness. She alleged that there had been a pre-determination to terminate the claimant’s employment as evidenced by the claimant’s account of a telephone conversation with the Chairman of the Board of Governors in 2005 when she alleged that he had told her he had concerns about her return and the school was running well in her absence; her name being removed from the school prospectus for October 2005 and a report in the Lurgan Mail following the unsatisfactory inspection where the Chairman of the Board of Governors was quoted as saying that, because of declining numbers in the school, they no longer required a Vice Principal. She also asserted that the inclusion of the Chairman of the Board of Governors on the appeals sub-committee was unfair, as he was biased against the claimant.

3.10 (a) The Different Procedures Used

It was correct that references were made to a number of different procedures in the course of the hearing. The procedure used in relation to termination of employment of teachers on grounds of ill health or capability (TNC 2000/4) sets out the procedure to be adopted in the cases of ill health retirement. That procedure allows for the precautionary suspension of a teacher where he or she proposes to return from sick leave and it appears, from the evidence available, that there is serious doubt concerning the teacher’s health or physical capacities such as to pose a risk either to the pupils in his or her charge or to having a serious adverse effect on teaching, the employing authority and/or the Board of Governors may then suspend a teacher (see paragraph 1.4). That procedure allows for a precautionary suspension to be made on full pay. This is the type of suspension which was imposed on the claimant when she wished to return to work in April 2011 having been issued with a fit note, and again in November 2011 after she had raised the query of whether an adequate risk assessment had been carried out to protect her health and wellbeing.

3.11 After consideration of the reports issued by Mr Hanna in early 2012, the staffing sub-committee chaired by Mrs Harrison, wrote to the claimant on 30 May 2012 inviting her to a meeting under paragraph 2.7 of circular TNC 2000/4 in order to give consideration to options 1, 2 and 3 as set out in Mr Hanna’s report. Subsequently after the meeting on 6 June 2012 when it became clear that the claimant was not proposing any possible way forward, the Board of Governors decided to proceed to consideration of the dismissal of the claimant. She was then written to on 6 July 2012 and at that stage she was advised that she was being invited to a step 2 meeting under the Statutory Dispute Resolution Dismissal and Disciplinary Procedures and she was given a copy of the appropriate extract from the Employment (Northern Ireland) Order 2003. The claimant subsequently attended a meeting in September 2012 and a further meeting on 27 May 2013 when her main issues in relation to the procedure were the composition of the committees, her objections to Mr Hanna and the report prepared by him.

3.12 Ms Bradley also invited us to consider that the procedures under Schedule 2 to the Education (Northern Ireland) Order 1998 had not been properly applied. In relation to issues of discipline and dismissal, the relevant paragraph in the Schedule is paragraph 5 which provides as follows:-

“Dismissal, etc

5. (1) Where the Board of Governors of any school to which this Schedule for the time being applies determines that any person employed to do work at the school under a particular contract of employment should cease to work there under that contract, it shall notify the employing authority in writing of its determination and the reasons for it.

(2) If in a case within sub-paragraph (1)-

(a) the person concerned is employed under the contract of employment in question to work solely at the school; and

(b) he does not resign, the employing authority shall, before the end of the period of one month beginning with the date on which the notification under sub-paragraph (1) is given in relation to him, either give him such notice terminating that contract with the employing authority as is required under that contract or terminate that contract without notice if the circumstances are such that it is entitled to so do by reason of his conduct.

(3) If in a case within sub-paragraph (1) the person concerned is not employed under the contract of employment in question to work solely at the school the employing authority shall require him to cease to work at the school.

(4) ...

(5) ...

(6) The Board of Governors of such a school shall make arrangements for affording to any person in respect of whom it proposes to make any determination under sub-paragraph (1) an opportunity of making representations with respect to the action it proposes to take, including (if he so wishes) oral representations to such person or persons as the Board of Governors may appoint for the purpose, and shall have regard to any representation made by him.

(7) The Board of Governors of such a school shall also make arrangements for affording to any person in respect of whom it has made such a determination an opportunity of appealing against it before it notifies the employing authority of the determination.

(8) The relevant officer of the employing authority shall be entitled to attend, for the purpose of giving advice, all proceedings of the Board of Governors relating to any determination under sub-paragraph (1) and the Board of Governors shall consider any advice given by a person entitled to attend such proceedings under this sub-paragraph before making any such determination ...”

Ms Bradley also opened to us an extract from the Scheme of Management in relation to Boards of Governors 2009-2013 in support of her assertion that the Board of Governors should have included people who were not members of the Board of Governors in its sub-committees to ensure impartiality.

She referred us to paragraph 24 of the Scheme of Management which provides as follows:-

“24(1) Subject to the following provisions of this Article the membership of a Committee established under Article 23 of this Scheme shall be determined by the Board of Governors and may include persons who are not members of the Board of Governors.”

(b) Delegation Powers of the Board of Governors

Paragraph 24 continues at paragraph 24 (2) to stipulate that any Committee established under Article 23 of the Scheme (apart from the Committee established to consider appeals against staff dismissal) should include not less than 3 voting members of the Board of Governors.

Paragraph 24(6) stipulates:-

“Where a Committee to which functions of the Board of Governors under paragraph 5 of Schedule 4 to the 1989 Order are delegated takes any decision as to the dismissal of a member of staff, referred to in this Article as a “first Committee”, no member of that Committee shall take part in the proceedings of any Committee established to consider any appeal against that decision referred to in this Article as an “appeal committee”.”

Sub-paragraph (7) then stipulates the membership of an appeal committee shall include no fewer voting members of the Board of Governors than that of the first committee, the decision of which is subject to appeal. From this it seems to us clear that there is power for the Board of Governors to delegate functions to
sub-committees established for that purpose. We were also made aware that the Board of Governors of Bleary Primary School has nine members. In order to establish a sub-committee to deal with the issue of disciplinary matters in the first instance, and then an appeal, at least six members of the Board of Governors were going to be involved. Given that the Board of Governors required a quorum of five members at its meetings, it would be impossible for it to take effective decisions unless sub-committees could be established to carry out at least some of its work, and the members of the sub-committees could also attend Board of Governors’ meetings. We can appreciate that the claimant felt unhappy that there was an overlap in the membership of the initial staffing sub-committee which met with her in June 2012 and the staffing sub-committee which subsequently made the determination to dismiss her in May 2013. However, we can see that it was difficult for the Board of Governors to provide sufficient personnel for both matters. The arrangements made did mean that no member of the appeal sub-committee had been involved in the earlier stages of the procedure.

3.13 There is also a difference between apparent unfairness and actual unfairness in terms of the procedure followed. We can fully appreciate that an employee in this situation would find it difficult to follow if procedures were “chopped and changed” and this could become confusing. We can also appreciate that this particular situation was an extremely unusual one and that it did stretch the Human Resources Department of SELB in deciding how it should best be addressed. Their role however was to provide advice and support to the Board of Governors of Schools, all of whom are volunteers and rely on (indeed are required to follow) the advice given to them by the Board officers in such cases. Given that we were presented with evidence from no less than three Board officers in relation to this case, all of whom were engaged in the human resource function, it should not have been beyond the bounds of their collective abilities to produce a clear précis of the procedure to be followed in this case which could have been presented both to the Board of Governors and to the claimant to advise them. As it was, the procedure followed was at best convoluted and provided scope for the claimant to complain of confusion. We do not accept that the claimant was as confused as she asserts. The claimant was after all an experienced teacher and an experienced Vice Principal. In that role she would have had contact with Board officers and been aware of the various procedures to be followed in dealing with personnel matters. She also had the benefit of advice from an experienced union representative who no doubt would have been quick to point out to her, the Board of Governors and Board officers had the procedure being followed been unfair or inappropriate.

3.14 On balance, we consider that the investigations carried out by the Board of Governors in this matter were fair and thorough and complied with the statutory disciplinary and dismissal procedures. We do not accept either that the Board of Governors failed in its duty to carry out a proper investigation by instructing Mr Hanna. Mr Hanna is an independent education consultant and the claimant produced no evidence to show that he was in any way ill equipped or biased in his approach. Indeed he carried out a detailed survey not only with the claimant but with all the other members of staff at Bleary PS which he analysed and presented in two separate reports. It was clear to us that, contrary to the claimant’s evidence to the tribunal, she had an extremely negative view of Bleary Primary School and was apprehensive about returning there. She produced the lowest score which Mr Hanna had ever seen in the Well-Being Review Measure and seemed to dwell on historical issues rather than trying to seek some way of resolving the past and moving forward. The feedback from other members of staff in the school also caused concern. A number of them made comments about the strained atmosphere when the Vice Principal (the claimant) had been back in school in November 2012 and it was clear that they too were apprehensive as to what would happen if and when the claimant returned. A number of them expressed concerns that the positive atmosphere in the school which had been fostered over a number of years would be endangered if the claimant returned.

3.15 The claimant asked in her meetings with the staffing sub-committee to have a further assessment carried out by the Labour Relations Agency or another independent expert. Our view of this is that this was not necessary or appropriate. Mr Hanna was not an employee of either the Board of Governors or SELB. He was an independent consultant and was using an industry recognised wellbeing measure to carry out his assessment and the Board of Governors was entitled to rely on his reports in the absence of any evidence that his conclusions were incorrect.

3.16 In Mrs Ferguson’s words, the situation was “unprecedented” and led to the claimant’s precautionary suspension. Following receipt of Dr McCrea’s report in which he indicated that the claimant was medically fit to return to work, but that he did not think it would be possible to provide her with a stress free working environment (a stipulation from her GP), the claimant was invited to meetings which she refused to attend and then asked to return to work on 31 November. At that stage the claimant raised a further issue by asking whether a risk assessment had been done regarding whether there was a safe environment for her to return to work. This in turn led to a further precautionary suspension and the instruction of Mr Hanna to carry out the risk assessment. We do not accept that the claimant was keen, willing and able to return to school at this stage. She refused to co-operate with the new Principal, Miss Neill, in attending meetings, she sought to avoid going to the school itself for a discussion about her return to work and she then raised the further obstacles of the risk assessment and her accrued annual leave.

3.17 This case cannot be properly divorced from its history. The claimant was off sick for a period of four and a half years and during her absence of sick leave she had brought a personal injury claim against the management of the school, which was settled in November 2010. Part of that settlement included an undertaking by her to apply for ill-health retirement. Following an extremely unsettled period for the school and an unsatisfactory report following a general inspection in July 2010, it would not be surprising if the Board of Governors heaved a collective sigh of relief once a settlement was reached with the claimant, that a long running and complex problem had been resolved satisfactorily. One can only imagine their astonishment and consternation when the claimant, having successfully been approved for ill-health retirement, then produced a GP report indicating that she was fit to return to work and suggested that she should indeed return to work at Bleary Primary School. Given that all of the previous medical advice had indicated that the claimant was not fit to return to work and had no wish to return to work because of her negative views of the school, this caused concern.

3.18 In terms of the requirements of the statutory procedure, we are satisfied that the Board of Governors had power to delegate its authority to dismiss staff to a
sub-committee under the provisions of Schedule 2(5) of the Education (Northern Ireland) Order 1998 and the Scheme of Management which applies to schools as set out above. In terms of the procedure which was actually followed, we note that the first staffing sub-committee met the claimant in June 2012 to discuss with her the remaining options set out in Mr Hanna’s report, but also to invite her to make her own proposals in relation to the way forward. The events of that meeting which we have set out above (see paras 2.26 and 2.27 above) make it clear that the claimant was not interested in putting forward any proposals of her own or of making any constructive suggestions. Indeed her comments in relation to the school and the atmosphere of the school were consistent with the view she had expressed to Mr Hanna. We note that her account of this meeting to the tribunal is at variance with her actions at the time. On a number of occasions throughout the hearing, we note that the claimant attempted to present herself and her actions in a more positive light than her actions in 2011-2013. It is clear to us there is inconsistency in the claimant’s account of matters, and we believe on balance that the claimant behaved in a mischievous and manipulative manner throughout in her dealings with the Board of Governors and the SELB.

3.19 Having had the June 2012 meeting, a further staffing sub-committee was set up to consider the option of dismissal and at that stage the question of dismissal was “contemplated”. We do not agree that the outcome of this matter was predetermined. Had it been predetermined, we suspect that the whole procedure would not have taken so long, especially since the claimant at this stage was suspended on full pay. There were a number of holdups along the way, none of which was caused by the Board of Governors, but all of which were to facilitate the claimant and her representative. First of all the claimant could not meet the Board of Governors over the summer of 2012 because her union representative was not available. A meeting was then rearranged in September. At that stage after a one and a quarter hour meeting, the meeting was adjourned because the claimant had not had an opportunity to see the Well-Being report. She was also to consider the options for voluntary redundancy but failed to make any response in relation to this. Subsequently in December attempts were made to rearrange the step 2 meeting, but the next meeting arranged had to be adjourned because the claimant was too emotional to continue. Subsequently there were a number of other efforts to rearrange meetings some of which were unsuccessful because of the claimant’s illness, and eventually the meeting took place in May 2013, some ten months after it was first sought. One cannot therefore level any accusation at the Board of Governors that they rushed the procedure or that the claimant was not given every opportunity to be present and be represented.

3.20 Following that meeting and the determination to dismiss the claimant, she was given the opportunity to make further representations in accordance with paragraph 5(6) of Schedule 2 to the Education Order 1998, which she did. She was then given the opportunity to appeal against the determination to dismiss and to attend a meeting with the appeal sub-committee. She did not do that, but her written representations were received by the appeal sub-committee and considered fully in their reply to her of 4 July 2013. There was some lack of clarity about the fact that the Board of Governors meeting in May 2012 did not record the setting up of the staffing sub-committee and the appeal sub-committee and this seems to us strange to say the least. It also seems to us bizarre that the Board of Governors meeting on 3 July 2013, at which the decision was taken to ratify the determination to dismiss the claimant was not minuted. We understand that at least part of the explanation for this may be that Miss Neill, the school principal who acted as secretary to the Board of Governors, was on holiday at this stage. However, we find it strange that experienced members of the Board of Governors who had attended such meetings over a long period of time did not think to make a minute of the meeting, or, even more so, that they were not reminded of the importance of this by the Board officers who were advising them. We are however satisfied that such a meeting took place and we heard evidence from Mrs Harrison and Mrs Upritchard that they had been in attendance at that meeting.

3.21 Given our findings in relation to the power of the Board of Governors to delegate to their sub-committees, we accept that the requirements of the statutory disciplinary and dismissal procedures have been complied with, and in particular, that the claimant was given an opportunity to appeal the decision to dismiss her by the Board of Governors before they notified the Southern Education and Library Board of that decision. It is a characteristic of the rather unusual employment situation of teachers that their employers (the Board of Governors) are not the “employing authority” which is either the Education & Library Board or CCMS as appropriate. We are satisfied however that the procedure followed by the Board of Governors in this case more than satisfies the elements of the statutory disciplinary and dismissal procedure. We are also satisfied that the overall procedure included a proper investigation, the claimant was given the opportunity to be accompanied throughout, to put her case fully and fairly and was afforded a right of appeal.

Ms Bradley invited us to draw an adverse inference from the failure of the respondent to call Miss Neill, the school Principal and Dr McCammick, the Chairman of the Board of Governors, as witnesses in relation to this case. She referred us to the decision of Mr Justice Hutton (as he then was) in Lynch -v- Ministry of Defence 1983 NI216 where he said as follows:-

“Where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that person would have said had he been called as a witness, nevertheless it is open to the jury to infer that person’s evidence would not have helped that party’s case; if the jury draw that inference then they may properly take it into account against the party in question for the purposes, namely

(a) in deciding whether to accept any particular evidence which has in fact been given either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and

(b) in deciding whether to draw inferences of fact which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.”

3.22 Ms Bradley asserted that the failure of Dr McCammick and the Principal to give evidence strongly pointed to the conclusion that there was a predetermination of the issues of which the claimant complained. Miss Neill was appointed in 2010. She had no direct role in relation to the dismissal of the claimant as she acted as secretary to the Board of Governors, but she would as a member of staff at the school have had input into the Wellbeing Assessment as the school Principal. She did make a comment to Mr Hanna in an e-mail, pointing out that both the claimant and her husband had been rude to her in correspondence and that they had questioned her role and authority in an “aggressive manner”. It was her view that the return of the Vice Principal was untenable because of this attitude and that the claimant would be unable to accept Miss Neill’s role as Principal of the school. We are also aware from the bundle of documents produced to us that there was a considerable amount of correspondence between the claimant and Miss Neill and between the claimant and the Southern Education and Library Board over this entire extended period. We have not looked at that correspondence as it was not opened to us, but we are aware from the index of documents that there was considerable correspondence. While we cannot make any comment or finding in relation to its content, we are aware that in the Well Being Report Miss Neill noted that a lot of her time had been spent dealing with correspondence from the Vice Principal and she was concerned that this would continue to prove to be time consuming. As the Principal was not involved in the decision to dismiss the claimant we do not think it appropriate to draw any adverse inference from her non-attendance at the tribunal.

3.23 In relation to Dr McCammick, the claimant asserted that he had predetermined that she should be dismissed. He had written to her in April 2011 about the termination of her post, just after her fitness note had been lodged with the Southern Education and Library Board in relation to her ill health retirement. It appears that this occurred because for some reason the school had not been notified of the claimant’s fit note having been issued and were proceeding on the basis that she was taking ill health retirement as had previously been agreed. The claimant also said that while she was on sick leave in 2005, Dr McCammick had phoned her and indicated that the school was functioning well in her absence and suggesting that she did not need to return. The claimant also objected to Dr McCammick because of the comment he had been quoted as making in the Lurgan Mail in 2010, indicating that if numbers continue to decline the school would not require a Vice Principal. We can see that it would have been helpful to us to have had Dr McCammick’s account of these events. We note that in relation to the Lurgan Mail quote, a subsequent Board of Governors meeting refers to Dr McCammick having been misquoted. In the absence of evidence from him we cannot say exactly what that relates to. We also note that the claimant could quite easily have witness summoned either Dr McCammick or Miss Neill or both but did not do so. Accordingly, we do not think that it would be appropriate for us to give a great deal of weight to the failure of the respondent to call either of them to give evidence.

(d) “Some other substantial reason”

3.24 There have been a number of recent cases in relation to the question of dismissal for “some other substantial reason” (“SOSR”) which have clarified the law in this regard. In Leach v The Office of Communications [2012] IRLR 839 Lord Justice Mummery cautioned against misuse of “some other substantial reason”. While he acknowledged in that particular case the reason for the claimant’s dismissal was a “substantial reason”, he went on to say:-

“It should, however, be said that it is not a convenient label to stick on any situation in which the employer feels let down by an employee or which the employer can use as a valid reason for dismissal whenever a conduct reason is not available or appropriate”.

The circumstances of dismissal differ from case to case. In order to decide the reason for dismissal and whether it is substantial and sufficient to justify dismissal the ET has to examine all the relevant circumstances. We were also referred to the case of Perkin v St George’s Healthcare NHS Trust [2005] IRLR 934 where is was noted that:-

“... personality, of itself, cannot be a ground for dismissal within ERA 1996 Section 98 (the GB equivalent of Article 130 of the 1996 Order). Further to be a potentially fair reason for dismissal, an employee’s personality must, it seems to me manifest itself in such a way as to bring the actions of the employee, one way or another, within the section. Whether on the facts of a particular case the manifestations of an individual’s personality result in conduct which can fairly give rise to the employee’s dismissal; or whether they give rise to SOSR of a kind such as to justify the dismissal of an employee holding the position which the employee held, the employer has to establish the facts which justify the reason or principal reason for the dismissal. Provided the employer can do so, Section 98(4) then kicks in. So much is, I think, obvious.”

The recent decision of Ezsias v North Glamorgan NHS Trust [2011] IRLR 550 indicates that in certain situations an employer may be justified in relying on the fact of the breakdown of relationships within the workplace as “some other substantial reason” for dismissal. While the Employment Appeal Tribunal in that case cautioned that this must not be allowed to be used as an easy escape route for employers, they also noted that procedures in relation to conduct and competence would not apply to cases where, even though the employee’s conduct caused the breakdown of the relationship, the employee’s role in the events which led up to that breakdown was not the reason why action was taken against him. The Employment Appeal Tribunal held that the only fair reading of the tribunal’s decision was that although it was a matter of history that it was the claimant’s conduct which had in the main been responsible for the breakdown of relationships; it was the fact of the breakdown which was the reason for his dismissal with his responsibility being incidental.

3.25 We have set out in some detail the sequence of events which occurred in relation to this case, so as to give a clear account of the events which occurred and the claimant’s participation in them. We are satisfied that although the dismissal procedure followed was convoluted, the claimant played a major part in putting up obstacles to the conduct of that procedure and made no positive contribution towards the resolution of the issues which prevented her returning to teach at Bleary Primary School. It is clear to us that the claimant was still harbouring feelings of injustice and misgiving regarding historical events involving members of staff, some of whom were no longer at the school. During the numerous meetings which took place in this procedure, she showed absolutely no willingness or intent to move forward. Her evidence to the tribunal contradicted the views she expressed to Mr Hanna and to the staffing sub-committees and the appeal sub-committee in 2011, 2012 and 2013. Having read the Risk Assessment Report produced by Mr Hanna, we believe that the Board of Governors would have been acting negligently had they ignored this report: to do so would certainly have caused huge ill feeling, if not damage to relationships within the school and therefore to the welfare of the other staff and children under their care. We have reflected on this at some length and we are conscious we must not substitute our view for that of the employer. However, on the basis of the evidence viewed objectively, it is clear that the claimant’s relationship with the Board of Governors and staff had completely broken down by 2012/2013, if not before. We therefore accept that the Board of Governors decision to dismiss the claimant was fair for “some other substantial reason”, namely that, as they stated, it would not be practicable or possible for her to reintegrate into the staff at Bleary Primary School. As an aside to this, we wish to put on record our surprise and concern that any member of staff should have been allowed to remain on sick leave for a period of 4½ years without some attempt being made to resolve that situation. Allowing the claimant’s situation to run on as it did allowed the opportunity for the events of 2011 to 2013 to unfold. No doubt there has been a considerable cost to the public purse in this entire matter, and we strongly recommend that the SELB should review its policies and procedures in the light of this case.

4. CLAIM FOR UNLAWFUL DEDUCTIONS - ACCRUED BUT UNTAKEN ANNUAL LEAVE

4.1 The claimant claimed that she had suffered unlawful deductions from wages in that she had accrued annual leave while off on sick leave which she had been unable to take and for which she had not received any payment. The schedule of loss set out a claim for six years’ statutory annual leave of 28 days per year, seeking an award in the region of £24,000. The right to paid holiday is set out in the Working Time Regulations (Northern Ireland) Order 1998 as amended. Regulation 13(9) specifies that the right to leave cannot be replaced by a payment in lieu of notice except where employment is terminated during the leave year. The issue of whether an employee was entitled still to accrue annual leave while on sick leave or maternity leave has now been resolved in the case of Stringer -v- HM Revenue [2009] IRLR214 and it is clear that this right extends to carrying over the entitlement to leave to another annual leave year (NHS Leeds -v- Larner [2012] EWCA1034). It has also been recognised by the Court of Justice of the European Union (CJEU) that where a worker has been unable to take their annual leave due to sickness absence, (or falls sick during annual leave) and it is not possible to reschedule the leave in the current leave year, they are entitled to carry it over in to the following leave year (Pereda -v- Madrid Movilidad [IRLR959] and ANGED -v- Fasga [2012] IRLR779). The issue remains as to the appropriate period for “carryover” of leave. In KHS NEW AG -v- Schulte [2012] ICR D19 the CJEU was asked to consider the legality of a collective agreement which provided for a carryover period of 15 months, on expiry of which entitlement to annual leave lapsed. The CJEU noted that the right to paid annual leave was to enable a worker to rest from work and to provide for a period of relaxation. They noted that if annual leave could be permitted to be carried over for a prolonged period of time, that would defeat the purpose of paid annual leave. They indicated (at paragraphs 38 and 39 of the judgment) that:-

“the carryover period must inter alia ensure that the worker can have, if need be, rest periods that may be staggered, planned in advance and available in the longer term. Any carryover period must be substantially longer than the reference period (leave year) in respect of which it is granted. The carryover period must also protect the employer from the risk that a worker will accumulate periods of absence of too great a length, and from the difficulties for the organisation of work which such periods might entail.”

In Schulte the Court of Justice approved a period of 15 months for carrying over paid leave, although it had previously ruled in the case of Neidel that a nine month carryover period was insufficient.

4.2 The first point Mr Wolfe made in this case is that the respondents recognised and accepted that the claimant is entitled to a payment in respect of her last leave year of service and for her penultimate year of service (i.e. 2013/14 and 2012/13). As the leave year commences on 1 September each year (see above para 2.20) the claimant’s period of sickness from March 2013 until the termination of her employment on 31 October 2013 actually straddled two leave years. Mr Wolfe noted that in accordance with TNC 2011/3, periods of statutory annual leave were to be set against periods of school closure which occurred either before or after the period of sickness absence. He therefore asserted that the first respondent was entitled to expect the claimant to offset the period of Christmas closure in 2012 (13 days) against her period of annual leave for that year. He therefore conceded that the claimant was entitled to 15 days’ pay in lieu of her entitlement to statutory annual leave for that leave year. He also agreed that from 1 September 2013 until 31 October 2013 the claimant would have accrued a further five days’ leave. Accordingly he conceded that the claimant was entitled to a payment in lieu of 20 days’ leave at £124.57 per day i.e. £2,491.40. He asserted that it was clear that these periods of leave would fall within the carryover period approved of by the European Court of Justice in Schulte and in any event fell within the carryover period permitted under TNC 2011/3 regarding teachers’ statutory annual leave.

4.3 The more difficult part of the claim related to the claimant’s claim for statutory annual leave from the start of her sickness absence in 2006 until she was certified as fit to return to work in April 2011. At that stage the claimant was placed on precautionary suspension and she remained on precautionary suspension, and in receipt of full pay, until March 2013 when she again was certified as sick. Mr Wolfe argued that in that situation she was obliged to set her entitlement to annual leave against any period of school closure in accordance with TNC 2011/3. It was the claimant’s assertion that she was entitled to a payment in lieu of statutory annual leave for the period when she had been on precautionary suspension, on the basis that she had to be available during the suspension. However, it is clear from TNC 2011/3 that a teacher is contractually required to be available to work during term time only. The only evidence to which the claimant could point in support of her position was a letter from Dr McCammick suspending her in November 2011. This letter told her that she was required to participate fully in the risk assessment process and to make herself available for any meetings. The respondent did not require the claimant to attend meetings during school closure periods and indeed the staffing sub-committee delayed a meeting with her in the summer of 2012 to facilitate both the claimant and her union representative who was not available for meetings during school holidays. We therefore do not accept the claimant’s argument in relation to this matter.

4.4 The issue still remains in relation to the question of the claimant’s period of sick leave from August 2006 until April 2011 and whether the claimant is entitled to “carryover” her entitlement to sick leave and indeed to claim in respect of unlawful deductions for untaken sick leave for a period of over six years, until her employment ended. Having considered the case law, and Ms Bradley’s assertion on behalf of the claimant that she should be allowed to carryover her entitlement to sick leave for six years, we cannot accept that there should be an open-ended right to carryover sick leave. On the basis of the case law and in particular the Schulte decision, we accept that the period of 12 months set out in TNC 2011/3 is not long enough to comply with the requirements of European Law. Schulte makes it clear that the carryover period must be longer than the leave year to which it relates, to enable the employee enough time to take the accrued leave. Given however that a period of 15 months was approved in Schulte, and that we can see no compelling reason to grant a longer carryover period, we accept Mr Wolfe’s argument that a carryover period of 15 months would be adequate. This being the case, the claimant should have taken her leave within 15 months of the end of the last leave year during which she had a sickness absence i.e. within 15 months of 31 August 2011. Accordingly, her leave should have been taken by 30 November 2012, or she should have brought a claim in respect of that leave by that date.

4.5 The claimant’s claim for unlawful deductions from wages is governed by Article 55 of the Employment Rights (Northern Ireland) 1996. The claimant alleged that she had suffered a series of deductions within the meaning of Article 55(3). According to Article 55(2), the three month time limit within which she may present a claim to the industrial tribunal begins to run at the date of the last alleged deduction. It was the claimant’s case that the last deduction happened at the date of the termination of the claimant’s employment i.e. 31 October 2013. That is correct as far as the deductions made regarding that leave year and the previous leave year are concerned. There was however a substantial break of some 23 months when the claimant was on precautionary suspension. We must therefore consider whether it is appropriate to extend the time, given what we have said above in relation to the carryover period, to extend the time limit for the claimant to bring a claim in respect of her periods of sickness from 2006 to 2011.

4.6 The time limit for presenting a claim in relation to unlawful deductions of wages may be extended where (under Article 55(4)) the tribunal is satisfied that it was “not reasonably practicable” for a complaint under this Article to be presented before the end of the relevant period of three months. In this case however we have not heard any evidence from the claimant to suggest that it was not reasonably practicable for her to commence her claim sooner. Indeed she raised the issue of taking her accrued leave by letter to SELB in April 2011 and subsequently raised the issue again in November 2011 just before she was due to start back to Bleary Primary School. She did not pursue the matter at that stage, although she was certified as fit for work. Accordingly it is our finding that it was reasonably practicable for the claimant to lodge her claim in relation to unlawful deductions of wages for her periods of sickness absence between August 2006 and April 2011 within the three month time limit after the last of those deductions, and we do not believe it would be appropriate for us to extend the time limit in this case. That part of the claimant’s claim in respect of unlawful deductions from wages for her sick leave accrued until April 2011 fails. We award the claimant the sum of £2,491.40, in respect of accrued but untaken leave for the 2012/2013 and 2013/2014 leave year.

4.7 In conclusion it is our finding that the claimant was fairly dismissed for “some other substantial reason” in accordance with Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 and her unfair dismissal claim will be dismissed. In respect of her claim for unlawful deductions regarding accrued but untaken annual leave, we find that the claimant is entitled to a payment in respect of 20 days accrued annual leave untaken in the leave years of her last two years of service and accordingly we order the respondents to pay to the claimant the sum of £2,491.40.

4.8 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Employment Judge:

Date and place of hearing: 8-16 April, 9 and 22 May 2014, Belfast.

Date decision recorded in register and issued to parties: