Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    00059/14

 

 

 

CLAIMANT:                      Mary Sarah McGuigan

 

 

RESPONDENTS:              1. Board of Governors of Wellington College

                                        2. Belfast Education and Library Board

 

 

 

DECISION

 

The unanimous decision of the tribunal is that:

 

1.       The claimant resigned and was not unfairly dismissed.

 

2.       It follows from (1) above that the claimant was not automatically unfairly dismissed contrary to Art.134A of the Employment Rights (NI) Order 1996 (“the 1996 Order “) and her claim of automatically unfair dismissal is dismissed.

 

3.       The claimant did not make qualifying disclosures contrary to Art.67B of the 1996 Order and accordingly did not suffer detriment as a result of having made such disclosures, therefore her claim in this regard is dismissed.

 

4.       The claimant did not suffer unlawful deductions of wages as she has failed to show that she was contractually entitled to either an M2 allowance or an SEN2 allowance and her claim in this respect is dismissed.

 

5.       Given that the claimant resigned, she was not entitled to notice pay and her claim for notice pay is dismissed.

 

6.       Given that the claimant resigned, there was no breach of contract by the first or second named respondents and this claim is dismissed.

 

7.       The claimant is entitled to pay for holiday accrued but not taken while employed by the first-named respondent and accordingly the first and second-named respondents are ordered to pay the claimant the sum of £276.77 as calculated at paragraph 76 of this decision.

 

 

Constitution of Tribunal:

 

Employment Judge:         Employment Judge McCaffrey

 

Members:                        Mr A Crawford

                                        Mr H Stevenson

Appearances:

 

The claimant appeared in person and represented herself.

 

The respondents were represented by Mr Mark McEvoy, Barrister-at-Law instructed by Education and Library Board Solicitors.

 

 

BACKGROUND AND ISSUES

 

1.       The claimant is a teacher who claimed that she had been unfairly dismissed from her post as a substitute teacher at Wellington College, Belfast (“the College”) following her having raised a number of issues which she alleged were public interest disclosures.  She worked at the College from 19 September 2013 until 18 October 2013.

 

2.       She also alleged she had suffered detriment short of dismissal because she had made protected disclosures.  At the hearing it was confirmed that the public interest disclosures which the claimant indicated that she had made were as follows:-

 

          (1)      A complaint regarding lack of resources and lack of training on new computer equipment.

 

          (2)      Lack of classroom assistants for the number of SEN pupils.

 

          (3)      Home Economics pupils allegedly being taught by a technician rather than the relevant teacher (Mrs Anderson).

 

          (4)      A classroom assistant (Mrs McMaster) allegedly acting as a PA rather than assisting the relevant pupil or pupils.

 

          (5)      Special needs were allegedly not being met, i.e., some pupils were not receiving their full statemented hours of support.

 

          (6)      Having to write Individual Education Plans (IEPs) for pupils.  The claimant alleged this was the responsibility of the Special Education and Needs Co-Ordinator (SENCO) who was Mrs Anderson, and that she should not have been asked to write and/or update IEPs. 

 

          The respondent disputed that these disclosures had been made or that they were “qualifying disclosures” under Article 67B of the Employment Rights (NI) Order 1996.  The respondent also disputed that the claimant had been dismissed, contending rather that she had resigned on 18 October 2013. 

 

3.       The claimant also claimed that she was entitled to notice pay of one week’s pay.  She alleged that she had been offered temporary employment at the College until at least December 2013 and that therefore she had a verbal fixed term contract for which she was seeking pay between 18 October 2013 and December 2013.  She did not specify the exact date in December 2013.  The claimant would only be entitled to these amounts if it was shown that she was dismissed and, in the case of her claim for payment to December, that she had indeed been given a fixed-term contract through until December 2013.  The claimant alleged further that she had suffered unlawful deductions of wages in two respects: first, that she had not been paid at M2 grade, to which she said she was entitled; and secondly, that she had not received an SEN2 allowance, to which she also believed she was entitled.  She also claimed holiday pay for leave (2.5 days) which she indicated had accrued but had not been taken during the four weeks when she had worked at Wellington College. All of these claims were disputed by the respondent.

 

THE FACTS

 

4.       The tribunal heard evidence from the following:

 

(1)   The claimant;

 

(2)   Mrs Lynne Anderson, Head of Home Economics and SENCO Co-Ordinator at the first-named respondent;

 

(3)   Mrs Tara McMaster, classroom assistant;

 

(4)   Ms Anne-Marie Collins, Personal Assistant to the Principal of Wellington College; and

 

(5)   Mr Matthew Pitts, Principal of Wellington College at the relevant time.

 

5.       We read and considered the witness statements provided by the witnesses, heard oral evidence from them in cross-examination and considered a considerable number of documents which were referred to in the witness statements and opened to us in the course of the hearing.  This case was heard over three days with the claimant representing herself. 

 

Preliminary Issues

 

6.       Prior to the commencement of the hearing, the claimant made the tribunal clerk aware that she had a learning disability, namely dyslexia, which meant she had difficulty processing information. At the outset of the hearing, an hour was spent with the parties going through the various claims raised by the claimant, explaining the procedure and clarifying issues raised regarding documents.  The claimant was not rushed or pressured in any way in terms of the time she had to cross-examine the respondent’s witnesses. She appeared to the tribunal to have no difficulty in putting questions to witnesses and responding to their answers. Indeed on a number of occasions she had to be asked to slow down (so the tribunal could take a note of the evidence) such was the speed of her speech. The claimant had a number of pages of questions for each witness and was accompanied by a friend who made notes and who she consulted at various times.

        

7.       We are mindful of the guidance of the Court of Appeal for Northern Ireland in cases involving unrepresented parties and in particular the comments of Girvan LJ in Peifer v Castlederg High School and Western Education and Library Board [2008] NICA 49 where he said :

     

           “[3] Having regard to the imperative nature of the overriding objectives, tribunals should strive to avoid time wasting and repetition.  Parties should be required to concentrate on relevant issues and the pursuit of irrelevant issues and questions should be strongly discouraged.  Our system of justice properly regards cross-examination as a valuable tool in the pursuit of justice, but that tool must not be abused. Tribunals should ensure proper focus on the relevant issues and ensure that time taken in cross-examination is usefully spent. The overriding objectives, which are of course intended to ensure that justice is done, impel a tribunal to exercise its control over the litigation before it robustly but fairly. Tribunals can expect the appellate and supervisory courts to give proper and due weight to the tribunals’ decisions made in the fulfilment of their duty to ensure the overriding objectives …

 

           “[4] Where the parties before the tribunal appear in person without the benefit of legal representation the lack of legal experience on the part of the unrepresented party may lead to the pursuit of irrelevancies and the unnecessary length of proceedings. While tribunals must give some latitude to personal litigants who may be struggling in a complex field they must also be aware that the other parties will suffer from delay, incur increased costs and be exposed to unstructured and at times irrelevant cross-examination. While one must have sympathy for a tribunal faced with such a situation the tribunal remains under the same duty to ensure that the overriding objectives in Regulation 3 are pursued.”

 

8.       On the second day of the hearing, while the claimant was cross-examining Ms Collins, she asked Ms Collins the same questions regarding her pay on a number of occasions and then was directed by the Employment Judge to move on from the topic of her pay.  Shortly after this, the claimant became visibly upset, so there was a break in proceedings and ultimately the hearing finished early that day.  The claimant subsequently thanked the tribunal for its consideration and apologised for being upset.

 

9.       Both parties had been advised in advance that we intended to hear their legal submissions on the last day of hearing.  We finished hearing evidence at about 12.30 pm that day and both parties indicated they were content to proceed with submissions that afternoon, starting at 2.00 pm.  The claimant had a sheaf of papers with notes from which she made her closing submissions.  After she had been speaking for almost an hour, the Employment Judge advised her that she should be drawing to a close and that she could have a further five minutes.  The claimant asked for another fifteen minutes and was told she could not have fifteen minutes, she could have five minutes. In the event, she had an additional ten minutes.  The respondent’s representative took about thirty minutes to make his submissions.

 

 10.    The claimant criticised the respondents and their representatives at various points during the hearing, accusing them of not producing notes of meetings which she alleged had been taken.  We were told no notes had been taken of the meetings on 18 October at the College and a subsequent meeting which the claimant had with staff at the BELB offices. We deal with these matters further below.  She also accused the respondent’s representatives of changing documents.  On further questioning this turned out to be changes to the Index for the Bundle of Documents which had been amended as more documents were added to the bundle. 

 

11.     The claimant was combative, indeed aggressive, in her style of questioning witnesses and in her demeanour before the tribunal.  During the hearing and during the respondent’s closing submissions, she sighed, rolled her eyes and glared at the witnesses and the representatives on an ongoing basis. We note this because we found it unhelpful and are aware that such behaviour can be off-putting to other parties and witnesses.  We found the claimant’s evidence to be contradictory on occasion.  For example, she alleged that a classroom assistant assigned to a particular special needs pupil was not spending her contracted 30 hours per week solely supporting that pupil. Mrs Anderson explained as the student was now well in his teens, not all the classroom assistant’s time was spent on one-to-one support with him, in order to foster independence in the student.  The classroom assistant would also prepare materials for the student as directed by his teachers and might also be directed to assist other special needs pupils if needed.  The claimant alleged this was a breach of the classroom assistant’s legal obligation to support just one student to whom she was assigned.  This ignored the claimant’s own witness statement, in which she suggested that this classroom assistant should have used any spare time available in assisting other special needs pupils.  When this was pointed out to her, she denied she had suggested any such thing.  The claimant also alleged in her witness statement that the same classroom assistant failed to give one-to-one support to her SEN pupil at technology and design classes when in fact the pupil concerned was not studying technology and design.  We found her evidence therefore to be unreliable in a number of respects and interpretation of some events and situations to be pejorative: at best, it was based on incomplete information and at worst, it was malicious. 

 

FACTS

 

12.     On the basis of all of the information and evidence received we make the following findings of relevant facts.  The background to this case was the decision by the College to set up a learning support facility for pupils with Special Educational Needs (SEN students) in the summer of 2013.  This was due to the fact that there had been an increase in the number of students with SEN requirements and particularly those who had a statement of special educational needs.  The intention was to convert a ‘Green Room’ to act as a base for Special Educational Needs students at break and lunch times and to provide support (including one-to-one support from a teacher and a classroom assistant) for these students at that facility.  The intention was to seek funding from the second respondent to allow for a classroom assistant and a teacher to be located at the Green Room to provide one-to-one support to students with specialist needs.  The funding would in part be achieved by recalculating existing SEN hours, along with hours for pupils joining in 2013.  A classroom assistant who was a qualified teacher was identified as someone who would be assigned to this facility in advance of funding being approved.  However, shortly after starting in September 2013 she found another post closer to home and left the College.  On a temporary basis the College consulted the Northern Ireland Supply Teachers’ Register (NISTR) to look for someone with SEN experience to help out until the teaching post at the Green Room could be funded and go to formal recruitment.  At that stage it was anticipated that the post would be advertised sometime in December 2013.  Initially it was considered it may be a temporary post, but the hope was that funding would be available on a permanent basis later on.  This funding did not however materialise so that the facility is now being used for withdrawal support with a classroom assistant and at break and lunch times.

 

13.     The College had also been advised that there would be 9 pupils with special needs joining the College in September 2013, which meant they required additional classroom assistants.  While it was foreseen that some classroom assistants already at the school could be reassigned to different students as “their” pupils finished at school, two or three were recruited through transferred redundancies and there was also a recruitment process.  A number of classroom assistants were recruited through this process, one of whom left after just a few weeks.  It was explained that the recruitment process can be lengthy, and it then had to start over again.  Mrs Anderson noted that some classroom assistants split their time between a number of pupils and she re-organised the time spent by other classroom assistants and teachers to ensure that SEN pupils had support while recruitment was ongoing.

 

14.     The claimant qualified as a teacher in 2007 and holds an MSc in Autistic Spectrum Disorder.  She was contacted by the College in September 2013 to see if she would be available to teach there on a substitute teacher basis.  It was unclear as to whether the initial telephone contact had come from Mrs Anderson or the College secretary: the claimant indicated she had spoken to the College secretary and Mrs Anderson said that her recollection was that she had made the initial phone call.  Either way, it is not determinative of any of the issues in relation to this case.  The claimant attended the school to meet Mrs Anderson on 18 September and they were also joined by Mr Pitts.  The discussion covered the claimant’s experience, whether she had experience in writing Individual Education Plans for Special Education Needs students (which she confirmed she had) and Mrs Anderson indicated to her that the claimant would be required to update individual education plans for students.  The claimant disputed that she had agreed to do this work or that she had been told she would be required to do it, only that she may be asked to do so.  On balance, we accept Mrs Anderson’s account of this matter.  Mrs Anderson also explained that there was no formal job description for the post as it was very much in its infancy, and was subject to funding.  She indicated that a formal job description would be prepared prior to the formal recruitment taking place.

 

15.     It was agreed that the claimant would start work the following day, 19 September 2013.  There was no discussion of her pay at that point. 

 

16.     Mrs Anderson had explained to the claimant that the ‘Green Room’ was not a purpose built area for learning support and no funding had yet been provided to turn it into such an area.  The claimant was however unhappy at the resources she had been provided with and requested new furniture together with incense burners and candles.  The claimant said that she wanted to provide a more relaxing and calming environment for pupils on the autistic spectrum hence the request for new furniture, candles and incense burners.  Mrs Anderson’s observation on this was that the room was adequately furnished at present and until funding was approved, there was no money available for other furniture.  The claimant also sought other stationery items some of which the College secretary was able to provide her with.  The claimant was unclear as to the precise legal obligation which she said had been breached by the respondents in this regard, but she alleged that there was a legal obligation to provide training on new equipment, which had not been done.  She also maintained that the lack of resources was a breach of health and safety considerations, although she did not specify exactly whose health and safety was endangered by the lack of equipment or in what way. 

 

17.     Given that a number of the claimant’s allegations centre on special needs teaching within the College, it is relevant to note that Mrs Anderson, the SENCO for the College, had been Head of the Home Economics Department for 26 years and SENCO for 7 years.  In addition to her primary degree, she had a Masters degree in Education majoring in Special Needs and held a certificate in Professional Development for SENCOs as well as other awards.  In terms of both experience and qualifications, she was eminently suited to her position and the Principal considered her one of the most professional teachers he had ever worked with.  The claimant, by contrast, had only arrived at the College and spent approximately four weeks there.  While the claimant is a qualified teacher and holds an MSc, her classroom experience is much shorter than Mrs Anderson’s.  As will be seen below, the claimant had not acquired enough experience to advance from the basic teacher’s pay grade.  New voice recognition software and Livescribe pens had been provided to the College just around the time the claimant started work.  Mrs Anderson gave evidence that she had been trained in these devices at the end of the previous academic year and was arranging for training to take place for other staff but this only took place after the claimant had left the College.  It was therefore a case of the timing of the training, rather than that it did not happen.  One of the claimant’s complaints was that there was not sufficient training given. 

 

18.     The claimant gave evidence that she had spoken to Mrs Anderson in relation to the training issues about her job role and description one day at the lunch table.  The claimant alleged that Mrs Anderson had made an ‘implicit threat’ that the claimant was a substitute and may not be needed tomorrow.  The claimant found this unprofessional and humiliating given that there were other staff present, although she had started the discussion with Mrs Anderson.    It was put to the claimant that Mrs Anderson’s response was to point out that the claimant was there as a substitute teacher and that things would become clearer when the position was being advertised.  The claimant disputed this.  It was also put to the claimant that she had then said she should perhaps go and speak to Mr Pitts and Mrs Anderson had suggested that she leave it for now.  On balance, and having had the opportunity to observe both the claimant and Mrs Anderson in the course of the hearing, we accept Mrs Anderson’s account of this exchange.

 

19.     The claimant indicated that because she felt she was “not getting anywhere” with the Mrs Anderson in relation to the matter of resources and training that she would voice her concerns to the Vice-Principal, Dr Drysdale.  While she did not refer to this in any detail during the hearing, she attempted to do so in her submissions.  We did not permit her to open this email at submissions stage of the hearing.  However given that the claimant did refer to this email in her witness statement and in case it may assist the claimant, we have considered the content of the email to Dr Drysdale.  This email does not refer to issues of resources, training or the number of classroom assistants.  It refers to a proposal to set up a chess club to benefit pupils who have a statement of special needs.  The claimant also suggested that she had ‘some interventions’ she would like to put in place regarding pupils on the autistic spectrum and suggesting that this should be done sooner rather than later.  She was however unspecific in the email as to what was proposed and why.  She did not make any reference in that email to having “witnessed numerous melt downs by pupils on the autistic spectrum”, as she states in her witness statement.

 

20.     In the meantime the claimant had raised the issue of her correct pay scale with Ms Anne-Marie Collins, the Principal’s PA, who dealt with issues in relation to processing pay requests to the second respondent.  Ms Collins’ evidence was that Dr Drysdale gave her a note each week of the hours done by substitute staff and she then transmitted the request for their payment to the second respondent as the employing authority.  The correct scale for the claimant’s payment however was a matter to be dealt with by the second respondent and the Department of Education for Northern Ireland (DENI) which makes payments to the teachers.  She explained that the second respondent would authorise the payment, but in the case of substitute teachers, a check would have to be done of the actual time worked by various substitute teachers in order to decide whether or not they were entitled to progress on to the next pay scale. 

 

21.     All teachers start on a pay grade known as M1.  In order to progress to M2, they must show that they have completed an aggregate of at least 26 weeks’ work (including part-time service) in one academic year.  The same applies for progression to the next pay grade.   The claimant provided details of the times she had worked in 2012/2013 academic year to Ms Collins.  The claimant was clear that she had worked at least 26 weeks in the 2012/2013 year and so was entitled to progress to M2 grade.  On this basis, Ms Collins completed the necessary TR268 form which Mr Pitts then signed and sent to the second respondent.  Ms Collins was clear that she had ticked the box to claim payment for the claimant at the M2 scale.  However the claimant was not paid at this scale.  Ms Collins indicated in her evidence that she had forwarded the form to Human Resources at the second respondent who managed the NISTR register.  The claimant apparently spoke to Ms Collins about this on a number of occasions, indicating that she had contacted the Department of Education but they had no record of the form.  Ms Collins pointed out that these forms often took a few weeks to be processed.  Ms Collins also indicated that after the claimant had left the College she received a call from the Human Resources Department at the second respondent, indicating that the claimant was not entitled to be paid at M2 grade due to insufficient service.  The claimant continued to dispute this.

 

22.     The claimant had also raised the point that she believed she was entitled to be paid an SEN allowance.  She was ultimately paid the SEN1 allowance payable to teachers who are engaged in teaching children with special needs.  She claimed however that because of her experience, she was entitled to the SEN2 allowance.  She claimed that such an allowance must be paid to her on the basis of the notes for guidance attached to the TR268 form.  Mr Pitts however pointed out that this form was for a permanent appointment to an assistant teacher post.  As regards the SEN pay scale, these notes state:

 

                    “A teacher in a special school or one in an ordinary school wholly or mainly engaged in teaching pupils with statements of special educational needs, must be awarded Special Educational Needs Allowance 2”. 

 

23.     However the Guidance for Boards of Governors on the Formulation and Implementation of Salary Policy published in May 2008 gives different guidance on both of these issues.  Paragraph 4.5.2 of the Guidance states that  a teacher is entitled to one point for each school year in which he or she has completed periods of employment as a teacher amounting to at least 26 weeks in aggregate (including part-time service) up to a maximum of 6 points on the main pay scale.  This means that a teacher will qualify for an experience point provided he or she has been employed for at least 26 weeks during the year, including part-time service.  Under paragraph 4.5.3, the Board of Governors has discretion to award salary points for recognised teaching experience outside Northern Ireland.  At least one week which the claimant indicated should be taken into account to give her the 26 weeks’ experience during 2012/2013 was at a school in England.  Ms Collins’ evidence was that even including that week, the claimant did not have enough service.  The claimant however asserted in her submissions to the tribunal that even without that week at a school in England, she had over 26 weeks’ service in that academic year.  The claimant did not go through the detail of that experience in 2012/2013 at the hearing, but her statement refers to various documents.   On checking the screen shots to which the claimant referred us, she did work for one or more days in 27 separate weeks in schools in Northern Ireland in 2012/2013. While some of those periods of work are clearly for consecutive days in the same week, others are for isolated days and we found it difficult to see precisely what days the claimant had worked.  However there were only three complete weeks worked over that period of time, and the days actually worked totalled 46.5 days as 3 were half days.  If a teacher worked full-time for 26 weeks, (s) he would work 130 days (26 x 5), which is a much longer period.  The claimant had sought to have an additional 6 days when she taught in England in September 2012 included in her experience, which would have brought the number of days she had taught up to 52.5, or 54 if the 3 half-days were each treated as full days worked.

 

24.     Paragraph 4.9.1 in the Guidance relates the matter of Special Educational Needs allowances.  This indicates that a teacher in a special school or one in a mainstream school who is engaged wholly or mainly in teaching pupils with statements of special educational needs must be awarded an SEN allowance 1.  Paragraph 4.9.4 indicates that a Board of Governors may (our emphasis) award SEN allowance 2 instead of SEN allowance 1 where it considers that the teacher’s experience and/or  qualifications enhance the value of the work he/she or undertakes with Special Educational Needs pupils.  As stated above, the claimant was retrospectively awarded SEN 1 allowance, but was not given the SEN 2 allowance.  Mr Pitts’ evidence was that he had never known a substitute teacher be awarded the SEN 2 allowance, or it to be given to a teacher in a mainstream school but he agreed in evidence it was appropriate that the claimant should get the SEN 1 allowance. 

 

25.     The claimant was unhappy at the situation in relation to her salary and asked Miss Collins to arrange an appointment for her with the School Principal, Mr Pitts.  An appointment was arranged for 4 October 2013, but Mr Pitts had to cancel at short notice because another meeting had been arranged in relation to the transfer test for primary school pupils moving to secondary schools.  Accordingly the meeting was rearranged for 18 October.  The claimant seemed to think there was some significance between this meeting being postponed and the fact that she had the conversation in relation to her job description with Mrs Anderson on the same day, but we are satisfied it was postponed for a genuine reason.  The claimant indicated she had requested a meeting with Mr Pitts on a number of occasions previously.  Ms Collins’ response to this was that she had initially dealt with the claimant’s queries on pay without the need to arrange a meeting with Mr Pitts.  The claimant suggested to Ms Collins in cross-examination that the fact she had persisted in seeking a meeting with Mr Pitts indicated that she wanted to raise issues other than her pay.  Ms Collins’ response was that she only knew of the issues the claimant had told her about, namely the pay and resourcing issues.  However Mr Pitts was clearly under the initial understanding that the claimant had requested a meeting to discuss a number of items to do with resources for the Green Room.  Mr Pitts had therefore referred this matter to Mrs Anderson as the claimant’s direct line manager.  He also said that he would normally ask his PA to check with the teacher concerned what was the subject matter of any requested meeting, so that he could attend the meeting properly prepared.  In this instance he understood that he was going to speak to the claimant about her pay and resourcing issues on 18 October 2013. 

 

26.     The meeting on 18 October was attended by the claimant, Ms Collins and Mr Pitts. Contrary to the claimant’s assertion, Ms Collins did not take any notes of that meeting.  There was a very brief note of the meeting prepared by Mr Pitts after it had occurred which was opened to us in the course of the hearing.  We are satisfied that there were no other notes prepared.We also accept Mr Pitts’ evidence that the note was made shortly after the meeting and the date subsequently endorsed on it was the date he provided it to the Education and Library Boards Solicitors.

 

27.     We accept that at this meeting, the claimant raised her concerns in relation to her lack of M2 grading and that she was also seeking an extra two “points” to be graded at SEN2.  We accept that Mr Pitts indicated concern that the issue of this extra money had not been raised at the initial meeting in September before the claimant started work and said it was not usual practice for teachers on the substitute register to negotiate for extra pay.  The claimant asserted that she initiated the meeting by asking about the SEN allowance and was then told that she would not get it.  She asserted that Mr Pitts had said, “The school had no money”.  While Mr Pitts was clear in his evidence to the tribunal that all schools were under considerable financial pressure, we accept his account in relation to this meeting, that he expressed surprise that the claimant had not raised this when she was first employed.  We also accept Mr Pitts’ evidence that he said at the meeting that it did not appear to be working out for the claimant at Wellington College and as a substitute teacher she was free to leave if she wished to do so.  Both Mr Pitts and Miss Collins indicated that the claimant then got up to leave.  Miss Collins could not recall the claimant saying anything in particular, while Mr Pitts indicated that she said “OK” or something to that effect.  Both of them indicated that the claimant appeared upset at this point.  They said she was making her way to the door but then turned before leaving the room and said she had other grievances.  Mr Pitts asked her to outline what these were, pointing out that they would needed to be addressed by the Board of Governors.  His evidence, which we accept, was the claimant started to make these allegations when she was at the door, about to leave his office. 

 

28.     The claimant gave a different account of events.  She asserted that she did not leave but was dismissed after she raised these issues.  She indicated that within the meeting, she was asked by Mr Pitts to give an outline of grievances and she proceeded to do so.  She said that she suggested that pupils with special needs were not being properly cared for in that there were not sufficient classroom assistants.  She also indicated that Mrs McMaster who was a classroom assistant should not be acting “as a PA to Lynne Anderson”.  She indicated that
Mrs McMaster was not fulfilling her role as a full-time special needs classroom assistant to a pupil with visual and auditory impairments in spite of the fact that she was being paid by the Board to do so.  She then went on to allege that Mrs Anderson had an HE Technician teaching her class on numerous occasions unsupervised.  The claimant said that Mr Pitts then yelled at her, telling her not to speak poorly of the Senior Management Team.  In her statement, she said, “I was then yelled at by Mr Pitts while he was pointing at the door to “Go, leave, get out of the school” in a totally irrational and rude manner.”  The claimant said that she was then told to address her grievances in writing to the Board of Governors.  Mr Pitts agreed that he stopped the claimant because she was criticising Senior Management and told her she should write to the Board of Governors about these matters.

 

29.     Both Mr Pitts and Miss Collins were clear in their evidence that the claimant only raised her grievances after she had started to leave the office.  Mr Pitts said, and Miss Collins confirmed, that at no point did Mr Pitts raise his voice or lose his temper.  On the balance of probabilities, we accept the accounts given by Mr Pitts and Miss Collins as the accurate account of what occurred on that day. 

 

30.     Having heard the evidence of all three witnesses and having observed their demeanour at the hearing, we find as a fact that the claimant resigned by her actions when she got up to leave the meeting on 18 October and she was not dismissed by Mr Pitts.  We are also satisfied that she did not raise any grievances with Mr Pitts apart from the issue of her pay prior to resigning. 

 

31.     The claimant also took exception to the fact that Miss Collins was instructed by Mr Pitts to see the claimant off the premises.  Mr Pitts said, and again we accept, that this was usual practice.  He noted that the claimant was upset and angry at this point and noted that he had a duty of care both to the pupils within the school and the other staff to make sure that nothing untoward occurred.  We can appreciate that when annoyed, the claimant may well have presented as being angry.  At various points throughout the hearing when the claimant was asked something which she disagreed with, or when she received an answer from a witness which she disagreed with, she became visibly annoyed.  She raised her voice and appeared to us to become angry and frustrated.  In the circumstances we believe that the action taken by Mr Pitts was entirely proper.

 

32.     The claimant subsequently sent a letter on 15 November 2013 to the Chairman of the Board of Governors setting out her allegations in detail.  The letter which the claimant sent to Ms Fee, Chairperson of the Board of Governors, sets out a number of grievances.  The claimant raised what she perceived as “confusion” in relation to her role as a Special Needs or Literacy Support Teacher.  She also alleged that she was left with little guidance and support, resources, policies, no literacy or special needs policies or curriculum or lesson plans.  She indicated that the SENCO had put nothing in place for her to implement.  In their evidence to the tribunal, Mrs Anderson and Mrs McMaster indicated that they had both introduced the claimant to the relevant staff and the relevant subject teachers of SEN pupils who would provide materials to her from their departments including textbooks, worksheets and materials.  Mrs Anderson had also had a detailed discussion with the claimant about the job on 18 September and had explained that the role was “still evolving”.

 

33.     The claimant indicated in the letter that she had to meet with the classroom assistants and write the IEPs for pupils: she alleged that she was doing the duties of the SENCO without the job title or any of the additional allowances.  However the claimant agreed that her ability to write IEPs was discussed at the meeting before she was engaged to act as a substitute teacher.  Mrs Anderson’s evidence, which the claimant did not dispute, was that she had already prepared a template IEP for each pupil.  She asked the claimant to discuss with the appropriate classroom assistants for each student how targets were being met and if targets needed to be adjusted or changed.  The claimant’s role was therefore in updating the IEPs, not in writing them from scratch, and we accept that it was entirely appropriate to do this.

 

34.     In her letter, the claimant repeated her allegation of her conversation with Mrs Anderson in relation to her job role and title.  She also referred to the meeting that she had with Mr Pitts in relation to her pay and allowances and gave her account of the meeting of 18 October.  At no point in that letter did the claimant set out the allegations that she had made in relation to Mrs McMaster either not carrying out her full hours with the statemented pupil to whom she was assigned, the allegations that she subsequently made in relation to Mrs McMaster acting as a “PA” to the SENCO or the allegations which she had made in relation to Mrs Anderson leaving her Home Economics class unsupervised and being taught only by a technician.      Accordingly it is our finding that the only grievances which were raised by the claimant before the end of her employment were the issues in relation to training and resources and the lack of classroom assistants at the time.  The claimant indicated in evidence that she would not tell a PA of the serious grievances she wished to raise in relation to other members of staff such as Mrs Anderson and Mrs McMaster.  She also indicated that she could not, understandably, raise any grievance in relation to Mrs Anderson directly with her and she did not feel comfortable raising any issue in relation to Mrs McMaster, because she and Mrs Anderson were friends.  However from the letter sent to Ms Fee it is clear that not only were these the issues relating to the use of classroom assistants, (and Mrs McMaster in particular), and any issues in relation to Mrs Anderson’s teaching of her class not raised with Mr Pitts before the end of the claimant’s employment at Wellington College, they were not even raised by the claimant when she wrote with her grievances to the Chair of the Board of Governors after termination of her employment. 

 

35.     Following her departure from the College on 18 October, the claimant said she went to the offices of the second-named respondent, where she spoke to two members of staff who took notes. The claimant said she had protested to them about being dismissed by Mr Pitts and that they said he should have advertised the post and “appeared quite angry he had not done this.” They also advised the claimant that she should raise these issues in the first instance with the Board of Governors and then pursue the matter with the second respondent if she was unhappy with the reply from the Board of Governors. The claimant did not have the names of these individuals and had not called them as witnesses, although the procedure for witness summonses had been discussed with her at one of the preliminary hearings. The respondents said they had not been able to trace any notes of this interview and in light of the lack of detail about the individuals concerned, we cannot take the matter any further.

 

36.     The claimant worked the week following 18 October as a substitute teacher.  She produced a payslip issued on 18 November 2013 which showed that she had worked 13½ days at Wellington College and four days at St Patrick’s College, Belfast.  Thereafter she indicated that she had worked for part of the time up to December 2013 when, she asserted, she would have finished her contract at Wellington College.  However this did not form part of her original claim to the tribunal.  Her claim for breach of contract in her ET1 form included a claim for two weeks pay, although she did not clarify exactly on what basis she was seeking this amount.  She asserted at the hearing that she had a verbal fixed term contract to be employed up to December 2013, on the basis that Mrs Anderson had explained to her on 18 September that it would probably be December before funding would be approved to allow the post to be advertised.  Mr Pitts was clear however that no such assurance had been given to the claimant and that she was engaged as a substitute teacher on a day-to-day basis, as her work was subject to budgetary considerations.

 

37.     The claimant’s claim form also claimed payment in lieu of holidays accrued but not taken, for 2.5 days accrued during her service at the College. She also referred to this in her witness statement, noting that “After having continuous service with the school for one month I am then entitled to holiday pay. Her daily rate of pay was £110.7076 gross. Her payslips were referred to us in the course of the hearing as evidence of the number of days and weeks worked by the clamant and were cross-referenced in the claimant’s witness statement, so we consider it is appropriate for us to consider them. The payslip covering the last three weeks of the claimant’s work at the College and the following week at St Patrick’s College, showed her daily rate of pay, but did not make any reference to holiday pay. The evidence given by the respondent on this matter is confined to Mr Pitts’ comment that, “As the claimant received a higher daily rate than employed teachers she was not entitled to holiday pay as this was rolled up.” He referred us to a Circular on Teachers pay and Conditions which had been provided. The relevant document is Circular 1987/26, dated 2 June 1987. Mr Pitts referred us to paragraph 7 of the Circular, which states:

 

                    “Substitute teachers shall be paid on 1/190 per day on the basic salary scale. Service as a substitute teacher will continue to be taken into account in determining salary."

         

38.     We have read the circular in its entirety, but cannot see any reference to substitute teachers being paid a higher daily rate to allow for holiday pay being “rolled-up” in their pay. We also note that this circular dates from 1987, and so pre-dates the Working Time Regulations 1998, which introduced the statutory right to a minimum number of days’ paid holiday each year.

 

39.     The claimant advised that she had subsequently continued to work as a substitute teacher during the 2013/2014 academic year.

 

THE RELEVANT LAW

 

Unfair Dismissal

 

40.     The right not be unfairly dismissed is set out at Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  However in order to bring a claim of unfair dismissal, Article 140 of the 1996 Order makes it clear that a claimant must have been employed for a period of at least one year.  In this case the claimant was employed for just over four weeks.

 

41.     Therefore in order for the claimant to succeed with a claim of unfair dismissal, she must be able to prove that she was dismissed for a reason which rendered her dismissal automatically unfair without the need to show a qualifying period of employment.  In this case the claimant alleges that she was dismissed for making protected disclosures under Part IV A of the 1996 Order (Article 67A and following).

Public Interest Disclosure

 

42.     The relevant law in relation to public interest disclosures is to be found in Article 67A and following of the 1996 Order.  The disclosures qualifying for protection are defined in Article 67B as follows:-

 

                    “67B   (1)      In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following  -...

 

                                        (b)      that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

 

                                        (c)      that the health or safety of any individual has been, is being or is likely to be endangered ...

 

                    67C    (1)      A qualifying disclosure is made in accordance with this article if the worker makes a disclosure in good faith -

 

                                        (a)      to his employer; or

 

                                        (b)      Where the worker reasonably believes that the relevant failure relates solely or mainly to -

 

                                                  (i)       conduct of a person other than his employer; or

 

                                                  (ii)      any other matter for which a person other than his employer has legal responsibility, to that other person.”

 

                    Article 70B provides as follows:-

 

43.               “70B   (1)      A worker has the right not to be subjected to any detriment by any act, or deliberate failure to act, by his employer on the ground that the worker has made a protected disclosure.

 

                              (2)      ...This article does not apply where

 

                                        (a)      the worker is an employee, and

 

                                        (b)      the detriment in question amounts to a dismissal (within the meaning of Part XI)...”

 

          It is clear from this that an employee must make a disclosure of information, that (s)he must have a reasonable belief that it tends to show one or more of the matters which fall within one of the six categories set out in Article 67B and that the disclosure must be made in good faith.  In order to show automatically unfair dismissal under Article 134A of the 1996 Order, an employee must show that the reason for his/her dismissal (or, if more than one, the principal reason) is that the employee made a protected disclosure.

 

44.     This complex area of the law is dynamic, and we have also derived much assistance from “Whistleblowing Law and Practice” (2^nd Edition) by Bowers and Others (OUP, 2012).  We are also conscious of the guidance given by Underhill P in London Borough of Harrow v Knight [2003] IRLR 140 and also the EAT in Blackbay Ventures Ltd v Gahir (UKEAT/0449/12/JOJ) in considering whether a protected disclosure has been made. 

 

45.     Mr McEvoy referred us to the recent decision of Blackbay Ventures v Gahir [2014] IRLR 416, where the Employment Appeals Tribunal set out the guidance for dealing with mixed public interest disclosure claims.  “Mixed” public interest disclosure claims are those where, as in this case, it is claimed that a number of disclosures have been made which fall within more than one of the categories set out in Article 67B of The 1996 Order.

         

46.     In that case the Employment Appeal Tribunal set out the approach that should be taken by Employment Tribunals in considering claims by employees that they have been victimised for having made protective disclosures.  It is nevertheless a helpful checklist in cases which relate to public interest disclosures in general.  The Employment Appeal Tribunal suggested that the approach should be taken is as follows:-

 

          “(1)     Each disclosure should be identified by reference, date and content.

 

          (2)      The alleged failure or likely failure to comply with a legal obligation or matter giving rise to the health and safety of an individual having been or likely to be endangered or as the case may be should be identified.

 

          (3)      The basis upon which the disclosure is said to be protected and qualifying should be addressed.

 

          (4)      Each failure or likely failure should be separately identified.

 

          (5)      Save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation.  It is not sufficient, as in the present case for the Employment Tribunal simply to lump together a number of complaints some of which may be culpable but others which may simply have been references to a checklist of legal requirements or do not amount to disclosure of information tending to show breaches for legal obligations.

 

          (6)      The Employment Tribunal should then determine whether or not the claimant had the reasonable belief referred to in [the equivalent GB legislation to Article 67B(1)] and … whether each disclosure was made in good faith; …

 

          (7)      Where it is alleged that the claimant has suffered a detriment short of dismissal, it is necessary to identify the detriment in question and where relevant, the date of the act or deliberate failure to act relied upon by the claimant.  This is particularly important in the case of deliberate failures to act because unless the date of a deliberate failure to act can be ascertained by direct evidence the failure of the respondent to act is deemed to take place when that period expired within which he might reasonably have been expected to the failed act.

 

          (8)      The tribunal … should then determine whether or not the claimant acted in good faith …”

 

47.     The checklist refers to some changes made in Great Britain in relation to the legislation on public interest disclosure which has not at this time been implemented in Northern Ireland.

 

48.     It is important too for the tribunal to consider whether or not there has been a disclosure for the purposes of the Public Interest Disclosure legislation.  It is clear that an actual disclosure must have taken place and it is not sufficient for there to have been a threat of disclosure.  As set out in Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38 EAT, it is not sufficient that the claimant has simply made allegations about a wrongdoer.  As Slade J noted:-

 

                    “... the ordinary meaning of giving “information” is conveying facts.  In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of the hospital.  Communicating “information” would be, “The wards have not been cleaned for the past two weeks.  Yesterday sharps were left lying around”.  Contrasted with that would be a statement that, “You are not complying with health and safety requirements”.  In our view this would be an allegation not information.”

 

49.     It is noted in Harvey, Section C III, paragraph 6 that what is required is only that a worker has a reasonable belief in the truth of the allegations he is making; it is not necessary for the information itself to be actually true.  The proper test to be applied is whether the employee had reasonable belief at the time of making the relevant allegations.  It has been noted that the statutory test is a subjective one, although as it has been noted by Judge McMullen in the EAT in Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4,  this does not necessarily make life easier for the claimant.  He noted that the emphasis on the personal position of the claimant may look like a watering down of the “reasonable belief” test but that it can in fact have the opposite effect.  Many whistle-blowers will be insiders with a high level of knowledge so that (paradoxically perhaps) that factor may increase the level of reasonableness required by the legislation.  Secondly, where there are a number of disclosures, the requirement is that there is reasonable belief in relation to each one, it is not enough that the claimant can be shown to have believed in the general gist of his comments.

 

50.     Bowers comments (Chapter 3, paragraph 3.25) that for there to be a qualifying disclosure, the worker must have a “reasonable belief” that the information disclosed “tends to show” one or more of the relevant failures.  They refer to a number of principles set out in the case law.  For the purposes of this case, it is important to note that the test involve both a subjective test of the worker’s belief and an objective assessment of whether that belief could reasonably have been held (see Babula v Waltham Forest College [2007] EWCA Civ 174.)  It has also been noted that a worker can be wrong in his belief, yet still hold a reasonable belief.  Babula applies to all elements of the test whether the information disclosed tends to show a relevant failure including whether the relevant criminal offence or legal obligation in fact exists.  Whilst reasonableness must be assessed from the standpoint of the person making the disclosure at the time the disclosure was made, rather than the facts as found with the benefit of hindsight, the truth or falsity of the information disclosed and whether or not the relevant failure in fact occurred may be relevant when assessing reasonable belief (Danton v University of Surrey [2003] ICR 165).  The EAT guidance in Darnton indicated the question of whether there was a reasonable belief must be assessed on the basis of the facts as understood by the worker (or as the worker ought reasonably to have understood them).

 

51.     In Shaw v Norbrook Laboratories (GB) Ltd [2014] All ER (D) 139 a possible difference between a breach of legal obligations and endangerment to the health and safety of any individual was highlighted.  Mrs Justice Slade pointed out that, unlike the more general language used in Article 67B(1)(b) (that a person has failed, is failing or is likely to fail to comply with a legal obligation), where there must be an  actual or likely breach of the relevant obligation by the employer, under paragraph 1(d) (that the health or safety of an individual has been, is being or is likely to be endangered) there need only be the fact or likelihood of that endangerment, not any definable legal breach by the employer.

 

52.     Case law has also established that Article 67B places two obligations on the employee.  The first is that the disclosure of information in question must identify the breach of the legal obligation concerned (see Fincham v HM Prison Service UKEAT/0991/01).  This may not be in strict legal language, but the obligation concerned must be identified.  Secondly an employee wanting to rely on the whistle-blowing protection bears the burden of proof of establishing the relevant failure (see Boulding v Land Securities Trillium (Media Services) Ltd [2006] of All ER (D) 158.)

 

53.     It is a further requirement of the legislation that any disclosure is made “in good faith”.  The leading case on the meaning of “good faith” is Street v Derbyshire Unemployed Workers’ Centre [2004] EWCA Civ 964.  In that case the Court of Appeal in England and Wales indicated that “good faith” should focus on the motivation of the person making the disclosure, so that it is open to a tribunal to find that if a disclosure was not made in “good faith”, it was made for some ulterior purpose, being a purpose other than acting in the public interest.  Secondly the Court of Appeal accepted that, in a case of mixed motives, protection is not to be denied merely because there was some ulterior motivation unless that was the dominant or pre-dominant reason for the disclosure.

 

         

 

          (3)      Breach of the Statutory Disciplinary and Dismissal Procedures

 

54.     The claimant claims there was a breach of procedural fairness and that appropriate procedures were not followed under Article 130(A) in that the respondent failed to follow the statutory disciplinary and dismissal procedures which are set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003.  The claimant alleged that what has become known as the three step procedure (i.e. a letter from the employer to the employee, setting out the alleged misconduct and inviting the employee to a disciplinary meeting at which here she is entitled to be accompanied; the disciplinary meeting at which the employee is entitled to be heard and to reply to the allegations against them; a written decision to the employee and if appropriate the right to appeal a decision), has not been followed in this case. It is important to note that there is no freestanding right to claim for breach of the statutory procedures and so this claim can only be made as part of an unfair dismissal claim (Scott –Davies v Redgate Medical Services (EAT)   )

 

          (4)      Unlawful deductions from wages

 

55.     The claimant alleges that she has suffered unlawful deductions from wages in that she said she was not paid at the correct scale and was not given the SEN2 allowance, and she claims arrears of pay and unauthorised deductions from wages under Article 45 and following of the 1996 Order.  In order to bring a successful claim for unlawful deductions of pay and/or breach of contract as set out below, the claimant must prove on the balance of probabilities, that she was contractually entitled to these payments.

 

          (5)      Notice Pay

 

56.     The claimant alleges that she was entitled to notice of the termination of her employment under Article 118 of the 1996 Order for payment in lieu of notice as damages for the failure to provide her with notice.  Under Article 118(1) of the 1996 Order an employer is required to give one week’s notice of termination of contract to an employee who has been employed for less than two years, once the employee has been continuously employed for one month or more.  Section 39(6) of the Interpretation Act (NI) 1954 indicates that any reference in an enactment to a month shall be construed as a reference to a calendar month.

 

          (6)      Breach of contract

 

57.     The claimant alleges that she was employed on a fixed term contract and accordingly she is entitled to claim damages in respect of the breach of contract which she has suffered under Article 3 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.

     

           (7)     Holiday Pay

 

 58.    The claimant claims to be entitled to pay in lieu for holidays accrued but not taken under Regulation 15A of the Working Time Regulations (NI) 1998 as amended. Regulation 15A provides at paras.2 and 3:

 

                    “(2) For the purposes of paragraph (1),leave is deemed to accrue over the course of the worker’s first year of employment, at the rate of one-twelfth of the amount specified in regulation 13(1) on the first day of each month of that year.

 

                    “(3) Where the amount of leave that has accrued in a particular case includes a fraction of a day other than a half day, the fraction shall be treated as a half-day if it is less than a half- day and as a whole day if it is more than a half-day.”

 

         The statutory amount of annual leave provided by the 1998 Regulations is presently 28 days. The amount of leave which would accrue over one month is therefore 2.33 days, rounded up to 2.5 days.

 

59.     It is the respondent’s case that the claimant is not entitled to this amount in lieu of paid holiday because she was paid at a higher daily rate than an employed teacher and her holiday pay was rolled-up in her pay. The parties were invited to address the tribunal on the relevant case law after the close of proceedings.  In Robinson –Steele v RD Retail Services Ltd [2006] IRLR 386, the Court of Justice of the European Union (CJEU) held that rolled-up holiday pay arrangements were precluded by the Working Time Directive, but that the Directive does not preclude sums actually paid under transparent and comprehensible arrangements for rolled-up pay from being set off against any liability to pay in respect of any specific period of leave taken by the worker. In Lyddon v Englefield Brickwork [2008] IRLR 198, the test laid down by the CJEU was applied by the EAT in England and Wales. Elias P held that the arrangement in Lyddon, where the claimant was paid a stated daily rate including holiday pay, was lawful. He noted that the claimant was given payslips which showed a basic wage, holiday pay, statutory deductions and net pay: this was sufficient, he considered, to meet the test set out by the CJEU. The claimant was paid at the same rate as other workers and his payslip referred to the fact he was paid holiday pay.

          

60.     The claimant referred to this caselaw as supporting her claim for holiday pay. The respondent argued that the claimant had never challenged the basis on which she was paid at the hearing and had not cross-examined Mr Pitts on the issue of whether the rolled-up holiday pay arrangement he said existed was in fact lawful.

 

REASONS AND DECISION

 

61.     We have reflected in relation to the arguments put forward to this in relation to this matter.  As with many cases, our decision is largely determined by the facts which we have found.

 

          (1)    The claimant’s claim of unfair dismissal

 

62.     The claimant was employed by the respondent for just over four weeks.  She does not therefore have the qualifying period of employment of one year to justify a claim of ‘ordinary’ unfair dismissal under Article 126 and following of the 1996 Order. Accordingly, she cannot claim automatically unfair dismissal due to breach of the statutory dismissal and disciplinary procedures.  She claims that she was unfairly dismissed by reason of the fact that she made protected disclosures under Article 67 and following of the 1996 Order.  In order to bring a claim of automatically unfair dismissal on the basis that an employee has made a protected disclosure, he or she must demonstrate that the reason (or if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.  This provision is found in Article 134A of the 1996 Order.  It follows from this that for the reason for dismissal to be a protected disclosure, the protected disclosure must have been made before the dismissal.  We must also be satisfied that the claimant was dismissed. 

 

63.     In this case, we are not satisfied the claimant was dismissed (see paragraphs 27- 30 above).  We have considered her account of the meeting of 18 October 2013, and also the accounts given by Mr Pitts and Miss Collins.  We found the claimant on occasions during the hearing to be contradictory and also to be quite volatile in her manner towards counsel for the respondents, other witnesses when she was cross examining and also in relation to the panel.  On occasion she became quite aggressive and combative in her manner.  We can appreciate therefore that if she was not content with the line taken by Mr Pitts in relation to her pay and allowances, that she may well have become quite aggressive in her tone towards him.  Our observation of the claimant’s demeanour at tribunal means that Ms Collins’ and Mr Pitt’s account of this meeting rings true, while the claimant’s does not.  It is our finding that the claimant resigned from her job when given the option of leaving by Mr Pitts.  We accept that she got up and walked towards the door, thereby indicating that she was leaving.  In our view this behaviour constitutes a resignation.  It was only after this that the claimant made any sort of allegation in relation to Mrs Anderson and Mrs McMaster.  While she indicated that she raised issues in relation to the  provision of classroom assistants with Mrs Anderson at an earlier stage, and that she raised issues in relation to resources, we are not satisfied that any other issues were raised prior to the claimant’s resignation.  We therefore believe that the alleged disclosures which the claimant says she made in relation to

 

(a)            Home Economics pupils allegedly being taught by the technician rather than the teacher; 

 

(b)            a classroom assistant allegedly acting as a PA rather than assisting pupils.

 

(c)            Special needs not being met i.e. some pupils not receiving the full statemented hours; and

 

(d)            The claimant being asked to write individual education plans for pupils that the claimant did not know.

 

either it did not occur at all or certainly did not occur prior to the termination of the claimant’s employment.  We believe that these allegations – which do not appear in the claimant’s letter to the Board of Governors in November 2013 – were only made by the claimant after the event. 

 

64.     For completeness we would add that we were satisfied by the evidence given by Mr Pitts, Mrs Anderson and Mrs McMaster that these allegations made by the claimant in the course of her claim to the Industrial Tribunal were not well-founded, that they constituted “allegations” rather than information and that they were not made in good faith, but rather as a result of a bad-tempered outburst by the claimant when she realised she was being refused additional pay by Mr Pitts.  Mr McEvoy suggested in his submissions that the evidence pointed to the claimant’s motivation as “anger, hostility and vindictiveness” towards Mr Pitts and the respondents in general.  The claimant’s demeanour at the hearing tends to support this view. For all of the above reasons, the claimant’s claim of automatically unfair dismissal contrary to Art. 134A of the 1996 Order is dismissed.

 

          (2)    Detriment – as a result of having made a Public Interest Disclosure

 

65.     The claimant has also made a claim that she has suffered detriment as a result of having made protected disclosures under Article 70B of the 1996 Order.  This can only relate to any disclosures made during her employment at the College.  The only alleged disclosures which we therefore need to consider are those made by the claimant in relation to lack of resources, lack of training and lack of classroom assistants.  We need to consider whether these constitute qualifying disclosures, if the claimant had a reasonable belief they were true, if they were made in good faith and whether the claimant suffered a detriment as a result. In considering this matter, we have considered and applied the guidance of the EAT in Gahir v Blackbay Ventures, and applied it to the facts of this case.

 

66.     First of all the claimant complained about the lack of equipment in relation to her teaching in the “Green Room”.  Secondly, in relation to training she said there had been no training on the specialised computer equipment including voice recognition software and “Livescribe” pens which had just been received at the school in early September 2013.  The third issue related to lack of classroom assistants for the number of statemented pupils. We are not satisfied that the claimant’s allegations on these three issues constitute “information” within the meaning public interest disclosure legislation or that she has shown that there were breaches of legal obligations or health and safety legislation as she alleged.  They are merely allegations and as such do not constitute qualifying disclosures under the meaning of the legislation.  It seems to us that these allegations were founded on the claimant’s limited knowledge of the College and its pupils.  We are not satisfied either that the claimant had a reasonable belief as to the truth of the allegations she made, or that they were made in good faith. Our reasons are as follows.

 

67.     In relation to equipment and resources, Mrs Anderson clearly stated that the Learning Support Centre in the Green Room was the subject of an application for funding to the second respondent, and the College was trying not to spend too much money or incur expense until the proposal had been approved and was fully funded.  She also set out in her written statement the equipment and furniture which was already there and which she, as an experienced and well qualified Special Education Needs Teacher, considered to be appropriate and adequate. The claimant was aware of the funding application, as this had all been explained to her before she started work at the College and accordingly we find that she did not have a reasonable belief that the equipment in the Green Room was lacking. We accept Mrs Anderson’s evidence in relation to this point.    The claimant was unclear as to whether this was a breach of a health and safety obligation or a legal obligation and it is for her clearly to make this case which she has failed to do. It seems to us she was simply unhappy she had not received new furniture (or the incense burners and candles) for the Green Room which she had requested, and this was the basis of her complaint.  We are not aware of any specific legal obligation in this regard, and the claimant did not provide any evidence that anyone’s health and safety had been or was likely to be endangered. Accordingly we find that the complaint in relation to resources for the Green Room was not a qualifying disclosure as it did not fall within any of the categories of disclosure set out in Art 67B. We are not satisfied, either, that the claimant made this allegation in good faith: she was well aware of the particular circumstances of the funding application and this inside knowledge in our view sets a higher threshold for the issue of good faith.

 

68.     In relation to the training on the new computer equipment, Mrs Anderson advised that she herself had received some training on this equipment towards the end of the previous academic year.  She also advised under cross examination that training had been arranged for the equipment and was in fact carried out shortly after the claimant left the school.  It was not therefore a case that training had not occurred, it was simply a question of timing.  Mrs Anderson agreed that there was a legal obligation for staff to be trained.  Although the claimant did not clarify the nature of this obligation, the tribunal is not aware of any such legal obligation.  We find the claimant has failed to show that the provisions of Article 67B (1) (b) have been breached and so has failed to establish that she made a qualifying disclosure. We do not need to consider the matter any further, as the claimant has failed at the first hurdle, but for completeness, we confirm that it is our view that the claimant did not have a reasonable belief in this allegation: she appears to have reached the view without seeking any information on the issue or checking if or when training would be available.

 

69.     In relation to the question of classroom assistants, it was clear from the evidence given by both Mr Pitts and Mrs Anderson that recruitment of classroom assistants is an ongoing issue throughout the year.  In May 2013 the school had been advised that there would be approximately nine new Year 8 pupils with special needs statements joining the school the following September.  Some of the existing classroom assistants at the school would be available to look after those pupils and as Mrs Anderson noted some classroom assistants would look after more than one pupil.  However the school needed to recruit further classroom assistants.  Some classroom assistants were redeployed through transferred redundancies to the school and another two or three were recruited through a recruitment process.  However one of the classroom assistants who had been identified as a classroom assistant for the Green Room but then found another job closer to home and left the school, leaving them short of a classroom assistant.  Mrs Anderson acknowledged this but pointed out there was really little the school could do but recruit for a further classroom assistant.  We accept her evidence in relation to this point, which the claimant was not in a position to refute.

 

70.     We cannot believe that the claimant, although she was in the College for a relatively short time, was not also aware of the funding situation and that the College was seeking to recruit additional classroom assistants.  The claimant did not clearly identify any legal obligation with which the respondents had or were likely to fail to comply with in this regard.  She seemed to allege that the lack of a dedicated classroom assistant impacted on the health and safety of a particular pupil, but Mrs Anderson noted that she had arranged to provide support for the pupil concerned through tuition with the claimant and classroom assistants.  We can see no evidence of which the claimant would have been aware in September/October 2013 which tended to show that the pupil’s health or safety was or was likely to be endangered. We do not accept that there was any breach of a legal obligation in this regard and the claimant has not demonstrated this.  Given her knowledge of the funding situation and the position in relating to recruiting classroom assistants, we find that the claimant did not have a reasonable belief there was a breach of legal obligations or of health and safety requirements when she made the allegations.  Mrs Anderson gave evidence of the steps she had taken to provide support for the pupils affected, including asking the claimant to give some one-to-one tuition to some of the pupils concerned, and arranging for other classroom assistants to be available to support them.  The claimant did not indicate to us any way in which the respondents’ legal obligations towards these pupils had been breached nor did she give any specific information as to how any of them were at risk in terms of their health or safety.  She referred only to a piece of legislation which, as counsel for the respondents pointed out, related to the health and safety obligations of an employer towards his employees.

 

          In summary, it is our finding that none of the matters raised by the claimant meets the requirements of a qualifying disclosure under Article 67B of the 1996 Order and her claims in this respect are dismissed.

 

          (3)    Unlawful deductions of wages 

 

71.     The claimant was engaged as a substitute teacher by the first-named respondent.  The employing authority was the second-named respondent.  Before she started work at Wellington College she did not have any discussion or negotiations in relation to her rate of pay.  She was therefore paid at the rate which was approved by the employing authority and the DENI.  The claimant has put forward documents which she says show that she was entitled to a higher rate of pay.  However the evidence before us is that the decision in relation to the rate of pay is made by the second respondent and DENI who apply the policies and procedures in relation to pay which were opened to us in the course of the tribunal.  The claimant did not go through the ‘screen shots’ produced to us to clarify that she had worked for 26 weeks in 2012/2013 and we have found the information provided unclear. There was no clarification on this matter from the respondents and so we have had to go through the documents and evidence adduced to make the findings of fact set out at paragraphs 23-25 above. If we are not correct in those findings it is because of the lack of clarity of the parties in presenting the evidence. It is for the claimant to prove her case in relation to this matter and in our view she has not set out in detail why she is entitled to an M2 allowance. 

 

72.     As we set out at paragraph (23) above, we have gone through the “screen shots” provided by the claimant and note that in 2012/2013, she worked 46.5 days at schools in Northern Ireland, or 48 days if the 3 half days are treated as separate days.  The Guidance on pay scales clearly sets out that a teacher must have worked an aggregate of 26 weeks, including part-time service, to merit another point on the salary scale.  We understand from this that in order to move to the next grade on the pay scale, a teacher must have worked the equivalent of 26 school weeks (26 x 5 days = 130 days), whether on a full or part-time basis.  We would emphasise that neither the claimant nor the respondent was particularly clear in their comments on this point, and so we can only go by the information provided by the witnesses for the respondents, that the claimant did not have sufficient service to justify the higher payment.  However no witnesses from the second respondent were called in relation to the issue of the M2 allowance and we have therefore had to rely on our own interpretation of the Salary Policy.   The College had supported the claimant’s claims for the M2 allowance, but could not make the decision about paying the claimant, as the allowances had to be verified and approved by the second respondent and DENI.  The claimant has not satisfied us that she was entitled to the M2 allowance on the basis of the service she completed in 2012/2013.

 

73.     In relation to her SEN1 allowance, the claimant was retrospectively paid this amount.  She was not paid an SEN2 allowance.  From the evidence provided to us it seems clear that this payment was exceptional and discretionary.  Mr Pitts’ evidence to us was that he had never come across a situation where an SEN2 allowance was paid to a substitute teacher, although he accepted that the SEN1 allowance was payable in this situation.  Accordingly we find that the claimant has not established the case that she was contractually entitled as a matter of course to the SEN2 allowance.  Her claims in relation to the M2 allowance and SEN2 allowance are therefore dismissed.

 

          (4)      Notice Pay

 

74.     In relation to the claimant’s claim for notice pay, as we have found that the claimant resigned and was not dismissed, she was not entitled to notice pay.  Accordingly her claim in this respect is dismissed.

 

          (5)      Breach of Contract Claim

 

75.     As we have found that the claimant has resigned, there is no breach of contract on the part of the first or second respondents in relation to this matter.  For completeness, we accept that the claimant was employed as a substitute teacher on a day-to-day basis, and was not given a fixed-term contract until December 2013.The breach of contract claim is therefore dismissed.

 

          (6)      Holiday Pay

 

76.     We have considered the supplemental submissions of each party in relation to this matter. We have reached the conclusion that the claimant is entitled as a matter of statute to be receive the statutory holiday entitlement set out in the Working Time Regulations (NI) 1998 (as amended) (“the 1998 Regulations”) or payment in lieu, if her employment ended during the leave year, which it did. It was agreed that the claimant had worked from 18 September until 18 October 2013 at the College, which was a total of 22 working days, over four weeks and 2 days. We are satisfied on this basis that she had worked for more than one month and so is entitled to holiday under Regulation 15A(2). The only ground on which she would not be entitled to receive payment in lieu of holiday would be that we were satisfied that she was already paid rolled –up holiday pay.  For the arrangements for rolled –up holiday pay to comply with the requirements of the Working Time Directive, which are the basis of the 1998 Regulations, the arrangements must be clear and transparent, in accordance with the decisions in Robinson-Steele and Lyddon, as set out at paragraph 59 above. We are not satisfied that the arrangements are clear and transparent.  Circular 1987/26 to which we were referred predates the 1998 Regulations and does not specifically refer to holiday pay for substitute teachers, whether rolled-up or not (see paragraphs 37 and 38 above).  We cannot therefore say that it is of any assistance in clarifying the point. The claimant’s payslips do not set out any provision for holiday pay and so we cannot say that the arrangement is clear and transparent, or that holiday pay is definitely included in the daily rate on the evidence before us. It is our finding that the claimant is entitled to be paid 2.5 days’ pay in lieu of holiday accrued, which amounts to £110.7076 x 2.5 = £276.77. We order the first and second respondents to pay this amount to the claimant.

 

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

 

 

 

 

 

 

Employment Judge:      

 

Date and place of hearing:         23-25 September 2014, Belfast.

 

Date decision recorded in register and issued to parties: