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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Montague v The Board of Governors of St P...The Council for Catholic Maint... [2016] NIIT 02326_15IT (26 July 2016)
URL: http://www.bailii.org/nie/cases/NIIT/2016/02326_15IT.html
Cite as: [2016] NIIT 2326_15IT, [2016] NIIT 02326_15IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2326/15
CLAIMANT: Amy Montague
RESPONDENT: 1. The Board of Governors of St Patrick’s Primary
School
2. The Council for Catholic Maintained Schools
DECISION
The unanimous decision of the tribunal is that all claims are dismissed
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mrs D Adams
Mrs F Cummins
Appearances:
The claimant was represented by Ms R Walsh, Barrister-at-Law, instructed by Murphys, Solicitors.
The respondents were represented by Mr M Wolfe, Queen’s Counsel instructed by Napier & Sons, Solicitors.
Background
1. The claimant had been employed by the first-named respondent as a temporary teacher, on both a fixed-term basis and on a daily basis, for various periods between 28 August 2012 and 22 August 2014. She was then employed from that latter date on a 12 month fixed term contract to 31 August 2015. Her employment ended on that date.
2. The first-named respondent is a small primary school which operates under the guidance of the second-named respondent.
3. The claimant had originally alleged unlawful age discrimination on various counts. Those claims of unlawful age discrimination were withdrawn by the claimant just before the hearing commenced.
4. Disregarding those initial claims of unlawful age discrimination, the claimant alleged:-
“(i) Unfair dismissal, contrary to the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’).
(ii) Public interest disclosure detriment (‘whistle blowing’), contrary to the 1996 Order.”
5. There was no claim of unlawful fixed-term worker discrimination, contrary to the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002.
Relevant law
6. The law in relation to protected disclosures is set out in the Employment Rights (Northern Ireland) 1996 (as amended). More popularly known as ‘whistle blowing’, protection against public interest disclosures is provided in certain circumstances where a disclosure is made by an employee on a matter within one of the public interest categories set out in Article 67B of the Order.
7. The meaning of a protected disclosure is set out in Article 67A which provides as follows:-
“67A In this Order a ‘protected disclosure’ means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with any of Article 67C to 67H.”
Disclosures Qualifying for Protection
“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 -
(a) That a criminal offence has been committed, is being committed or is likely to be committed.
(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 a miscarriage of justice has occurred, is occurring or is likely to occur.
(d) That the health or safety of any individual has been, is being or is likely to be endangered.
(e) That the environment has been, is being or is likely to be damaged, or
(f) That information tending to show any matter falling within any one of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed ...”
Disclosure to Employer or Other Responsible Person
“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) the 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 person”.
The claimant alleged that she had suffered detriments as a result of having made a protected disclosure and also that she was dismissed as a result of having made a protected disclosure. In relation to detriment, Article 70B(1) of the 1996 Order provides as follows:-
“A worker has a right not to be subjected to any detriment or any act or deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure.”
8. In relation to the right not to be dismissed for having made a protected disclosure, Article 134A of the 1996 Order provides that:-
“Article 134A
An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”
9. The first issue to consider is whether or not the disclosures made by the claimant qualify for protection under Article 67B and then whether or not there was a detriment to the claimant on the ground that the claimant had made the qualifying disclosure. The issue of whether the claimant was dismissed on grounds of having made a protected disclosure is considered below.
10. The legal test in relation to what amounts to a protected disclosure is set out in Easwaran v St Georges University of London [2010] UKEAT/0167/10 where Mr Justice Underhill set out a three step test for considering whether a qualifying disclosure had been made. This was as follows:-
“1. Did the worker disclose information?
2. If so, did the worker believe that the information tended to show at least one of the relevant failures?
3. If so, was the belief reasonable?”
11. In Cavendish Monroe Professional Risks Management Ltd v Geduld [2010] IRLR 38 EAT Mrs Justice Slade confirmed that:-
“The ordinary meaning of giving ‘information’ is conveying facts. In the course of the hearing before us, a hypothetic was advanced regarding communicating information about the state of the hospital. Communicating ‘information’ would be ‘The wards have not been cleaned for the last 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.”
12. As regards the requirement of ‘reasonable belief’ on the part of the worker concerned, Lord Justice Wall confirmed in Babula v Waltham Forest College [2007] EWCA Civ 174 that the employee must subjectively hold the relevant belief, but the question of reasonableness is to be determined objectively in the context of the facts known to the worker at the relevant time. The burden is on the employee to establish a reasonable belief. The principles in relation to assessing reasonable belief were summarised in Babula and in Darnton v University of Surrey [2003] ICR 615.
They can be summarised as follows:-
(1) The tests involve both a subjective test of the worker’s belief and an objective test of whether the belief could reasonably have been held.
(2) The worker can be wrong yet still hold a reasonable belief (Darnton).
(3) The test of reasonable belief applies to all elements of the test of whether the information disclosed tends to show a relevant failure, including whether the relevant criminal offence or legal obligation in fact exists.
(4) Reasonableness of the belief is to be tested having regard not to only what was set out in the disclosure but also to the basis for that information and any allegation made (Darnton and Babula).
(5) What is reasonable depends on all the circumstances assessed from the perspective of the worker at the time of making the disclosure and it is for the tribunal to assess this. This may include consideration of the circumstances in which the disclosure was made, to whom the disclosure was made, the context and extent to which the worker claims to have direct knowledge of the matters disclosed and comparison with how the worker would be expected to behave if he genuinely and reasonably believed in the truth of the matters disclosed and that they tended to show a relevant failure.
(6) 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. In other words, it can be used as a tool to assess the reasonableness of the belief of the claimant at the relevant time.
(7) The tribunal must exercise judgment consistent with the evidence and resources available, including the expertise and seniority of the worker, the ability to investigate further and whether it is appropriate in all the circumstances instead to refer the matter to someone else to investigate.
(8) The standard to be applied has to take into account that it is only necessary to have a reasonable belief that the information ‘tends to show’ the relevant failure rather than that it positively establishes that failure (Babula).
(9) The burden is on the worker making the disclosure to establish the requisite reasonable belief (Babula).
(10) There must be more than unsubstantiated rumours in order for there to be a qualifying disclosure (Darnton).
(11) It is also relevant to look at the individual characteristics of the worker in deciding whether or not the belief has been reasonable. In the case of Korashi (which involved a surgeon) the late Judge McMullen stated:-
“There may be things that might be reasonable for a lay person to have believed (however mistakenly) that certainly would not be reasonable for a trained professional to have believed.”
13. 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 has been noted by Judge McMullen in the EAT in Korashi the Abertawe Bro Morganwg 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 whistleblowers are insiders with a high level of knowledge so that (paradoxically perhaps) that factor may increase the level of reasonableness required by the legislation. Secondly, the requirement is that a claimant must show reasonable belief in relation to each disclosure, it is not enough that the claimant can be shown to have believed the general gist of his comments.
14. The obverse is presumably also true: a person with greater expertise in a particular field may be safely considered to have more knowledge as to whether or not there has been a breach of, for example, health or safety requirements or legal obligations in the employee’s particular field.
15. 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.
Breach of legal obligation
16. We have found it helpful to refer to ‘Whistle blowing Law and Practice’ (2nd Edition Bowers and Others) OUP, 2012 which sets out at Paragraph 3.78 and following the requirements of a ‘legal obligation’. Bowers says:-
“There is no requirement that the obligation must reach a minimum level of seriousness. It may be, however, that if the concerns are trivial this will be material in assessing whether the concerns were raised in good faith. The triviality of the concerns may be indicative that they are raised for an ulterior motive, rather than it being raised in the public interest”.
It is also noted that in the decision in Douglas v Birmingham City Council and Others (EAT/018/02, 17 March 2003) the EAT referred to the decision in Parkins and noted:-
“Judge Altman gave a wide meaning to the term ‘legal obligation’ which we have cited. The tribunal adopted a passage in the ‘Encyclopaedia of Labour Relations Law’ Eds Hepple, O’Higgins and Upex’ as follows:-
‘This includes a breach of any statutory requirement; contractual obligation, common law obligation for example negligence, nuisance, defamation or an administrative law requirement.’
Bowers comments that:-
“The Act does not, however, cover a failure to fulfil what might be considered as moral (but not legal) obligation of the employer ... Further, whether breach of a self-regulatory code qualifies for protection will turn on whether there is reasonably believed to be a legal obligation to comply with the rule. In some cases this might give rise to difficult issues of construction. Whilst a breach of a code of conduct might enable the self-regulatory organisation to take disciplinary action, it may in some contexts be difficult to identify a legal obligation which has been flouted”. (Paragraph 3.83)
17. 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 whistleblowing 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.)
18. 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.
19. In relation to a claim of detriment, there is no qualifying period of service for bringing a claim of detriment and no upper age limit. As set out in Article 70B of the 1996 Order (see above) a worker has the right not to be subjected to any detriment by any act or deliberate failure to act by an employer done on the ground that the worker has made a protected disclosure. The question of whether detriment has occurred is determined using the test in Shamoon v Chief Constable of the RUC [2003] UKHL 11, namely whether a reasonable worker would, or might come to take the view in all the circumstances that the treatment was to the claimant’s detriment in the sense of disadvantage. The Shamoon guidance has been used for whistleblowing detriment claims in the same way it is used for victimisation claims in relation to discrimination law: see Woodward v Abbey National [2006] Court of Appeal.
20. One of the leading cases in relation to the matter of detriment is NHS Manchester v Fecitt and Others [2011] EWCA Civ 1190 where it was held that the protected disclosure must materially influence (in the sense of being more than a trivial influence) the employer’s treatment of the employee. However the claimant need only show that he has made a protected disclosure and suffered detriment by the way of satisfying the burden of proof. If he proves those two elements, the burden will then shift to the employer to provide an explanation innocent of the fact of the claimant having made a protected disclosure (see Article 75 of the 1996 Order). Once the burden shifts to the employer, it is for him to prove that (where there has been a detriment) the claimant has not been victimised on grounds of having made a protected disclosure. In Nagarajan v London Regional Transport [1999] ICR 877 the House of Lords set out the correct approach for considering whether detriment suffered was ‘on grounds of’ having made a protected disclosure. Their Lordships indicated that the tribunal was required to consider the mental processes of the respondent and the reason why detrimental acts or omissions occurred. The key question is whether the detrimental acts or omissions were materially influenced by the fact that the claimant made protected disclosures. The employer may have been motivated by both conscious or unconscious factors.
21. As set out above the right not to be unfairly dismissed for making a protected disclosure is set out at Article 134A of the 1996 Order. The question for the tribunal to consider is: why did the employer dismiss the claimant? The five elements of a protected disclosure dismissal claim were set out by Underhill J in MOD v Sarfarz [2011] IRLR 562. The five elements are:-
(1) That the claimant had made a disclosure to his employer;
(2) That he believed that that disclosure tended to show one or more of the matters itemised at (a) to (f) under Article 67B(1);
(3) That that belief was reasonable;
(4) That the disclosure was made in good faith;
(5) That the disclosure was the principal reason for dismissal.
22. There is an important distinction between dismissal and detriment cases: in dismissal cases, the protected disclosure must be the principal reason for the dismissal if there is more than one reason. In detriment cases, by contrast, the detriment will be on grounds of the protected disclosure if that disclosure was more than a trivial influence on the employer’s treatment of the whistleblower. When looking at the reason or principal reason for dismissal, the tribunal should focus on the mental process of the employer to determine the reason.
23. The test to be applied in considering the burden of proof in public interest disclosure dismissal cases was set out in the case of Kuzel v Roche Products Ltd [2008] EWCA Civ 380. The Court of Appeal specifically approved the approach previously taken by the Employment Appeal tribunal when it had identified the following four questions for consideration:-
“1. Had the claimant shown that there is a real issue as to whether the reason put forward by the respondent (for dismissal) was not the true reason?
2. If so, has the employer proved his reason for dismissal?
3. If not, has the employer disproved the [Article 134A] reason advanced by the claimant?
4. If not, dismissal is for the [Article 134A] reason”.
24. The relevant law in relation to unfair dismissal is to be found in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996, (‘the 1996 Order’). For the purposes of this case, the relevant articles are as follows:-
“Article 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.
(2) A reason falls within this paragraph if it -
(a) relates to the capability or qualifications of the employee for performing work of a kind which he was employed by the employers to do;
(b) relates to the conduct of the employee;
(ba) is retirement of the employee;
(c) is that the employee was redundant; or
(d) that the employee could not continue to work in the position which he held without contravention (either on his part or that of his employer) 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 sufficient reason for dismissing the employee; and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
“Article 130A - Procedural Fairness
(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 had he followed the procedure … .”
Procedure
25. The original claim alleged ordinary unfair dismissal, automatically unfair dismissal (public interest disclosure), public interest disclosure detriment and age discrimination.
26. This claim had been case-managed. A Case Management Discussion took place on 7 January 2016. Directions were given for the interlocutory process, including directions that a list of the alleged public interest disclosures, and a list of the alleged detrimental acts in relation to such disclosures, had to be provided by the claimant to the respondents before 14 January 2016. Directions were also given in relation to the exchange of witness statements and for a hearing of the matter originally fixed from 25 - 29 April 2016.
27. When the claimant exchanged her witness statement, she also disclosed three hours of recordings. Those had not been disclosed as part of the interlocutory process, as they should have been. The respondents sought an Order for a transcript of those recordings and sought further clarification of the issues which they alleged did not correspond to the claimant’s witness statement.
28. Transcripts from the recordings were provided by the claimant to the respondents the day before a further Case Management Discussion on 6 April 2016. A pre-hearing review was directed on 27 April 2016 to deal with the admissibility of the recordings.
29. At that pre-hearing review on 13 May 2016 the tribunal determined that those transcripts were admissible in evidence.
30. The claim of unlawful age discrimination was withdrawn shortly before the hearing. The particulars of alleged public interest disclosures were set out in a document dated 14 January 2016. That document was some four pages long. In summary, it referred to alleged public interest disclosures made in the course of the grievance process by the claimant on 17 December 2014 in relation to special educational needs provision. It also referred to alleged public interest disclosures in relation to Extended Schools Funding made by the claimant on 17 December 2014 and 5 August 2015. The claimant alleged that both sets of alleged public interest disclosures came within Article 67B(b) of the 1996 Order and related to alleged failures by the respondents to comply with a legal obligation.
31. The alleged detriments were also specified on 14 January 2016. They were in summary:-
(i) the cancellation of a school trip on 2 January 2015 by the principal;
(ii) a letter dated 19 January 2015 prohibiting the claimant from contacting parents without permission;
(iii) exclusion from a training day in April 2015;
(iv) not dealing with her grievance correctly;
(v) dismissal on 31 August 2015;
(vi) not being given an opportunity to appeal her dismissal; and
(vii) the claimant’s inability to obtain a fair and accurate reference.
32. The claimant gave evidence on her behalf. She did not call any other witness to support her case.
33. On behalf of the respondents the tribunal heard evidence from Mr Donal Cox of the Board of Governors, Mr Garry Smyth, Chairman of the Board of Governors, Ms Cathleen Gallagher, Vice Principal and Mrs Eileen Glynn, Principal.
34. The witness statement procedure was used. Each witness swore or affirmed to tell the truth, adopted their previously exchanged witness statement, or witness statements, as their entire evidence-in-chief and moved immediately into cross-examination and brief re-examination.
35. The tribunal read the witness statements and the documentation on 27 June 2016. The tribunal heard the cross-examination and re-examination of witnesses from 30 June 2016 - 5 July 2016.
36. After the conclusion of the evidence, written submissions were exchanged by 10.00 am on Friday 8 July 2016. The panel met subsequently on that date to reach a decision. This document is that decision.
Findings of fact
37. The claimant had been, at various times between 28 August 2012 and 31 August 2015, employed by the first-named respondent as a primary school teacher. The individuals of whom she complains were at all material times either employees of, or members of, the first-named respondent. There appears to be no claim against the second-named respondent either as a direct claim, claim of vicarious liability or in any other way.
38. The claimant stated in her originating claim form that she had been ‘continuously employed’ from 28 April 2012.
39. The claimant had been employed for a fixed-term maternity leave substitution from 28 August 2012 to 30 April 2013. That period of employment ended at that point. The claimant was then employed by the first-named respondent on various dates throughout May and June 2013 as a substitute teacher through the Northern Ireland Substitute Teacher Registry (‘NISTR’). The last of those separate days of employment was 26 June 2013. The claimant was then not employed by the first-named respondent for any purpose thereafter during the summer of 2013. That was a significant break in employment in ordinary terms. The claimant was not contractually engaged to the first-named respondent throughout the summer of 2013. The first-named respondent was not obliged to offer further employment of any sort. The claimant could and did seek alternative employment.
40. The claimant was then employed again by the first-named respondent for the school year 2013/14 from September 2013 to June 2014. This was temporary daily paid employment arranged through NISTR. That period of employment ended at the end of June 2014. There was again a significant break in the employment of the claimant during July and August 2014, in ordinary terms.
41. In May 2014 the claimant had applied for a further period of employment for the forthcoming school year. The first-named respondent had decided to offer two posts. The first post was a permanent teaching post. The second post was a one-year fixed-term contract for the forthcoming school year from the end of August 2014 to the end of August 2015. The claimant applied for both posts. She was unsuccessful in relation to the permanent teaching post but was successful in obtaining the one-year fixed-term contract. Her employment therefore re-started in ordinary terms, after a two month break, from the end of August 2014 and continued to end of August 2015.
42. Article 8 of the 1996 Order provides for circumstances in which gaps in employment (in ordinary terms) are to be included for the purposes of establishing continuous service. The relevant periods of qualifying continuous service are (i) one year for (ordinary) unfair dismissal and (ii) two years for a statutory redundancy payment. The respondent concedes that applying Article 8(3) of the 1996 Order, the claimant would satisfy both periods of qualifying service.
43. It is significant that the claimant in June 2014, if not before, regarded herself as a permanent member of staff when she had no grounds for such a belief. In her written witness statement, the claimant stated in relation to the interview for the two posts on 25 June 2014:-
“I believed my job was permanent and was being officially ratified.”
44. The claimant alleged that professional references provided by Mrs Glynn, the Principal of the Derrygonnelly Primary School, had been unfair and that she had been marked too low. In most cases, standard CCMS referee forms for teachers contained 20 indicators which ranged from ‘relationship with parents’ to ‘commitment to Catholic Education’. The referee was invited to mark a numerical score which ranged from 1 to 6 against each indicator. ‘1’ was poor, ‘3’ was average and ‘6’ was excellent. The tribunal was referred, first of all, to three references which had been given in 2013. Two were in standard form and one was a brief narrative. The two standard form references contain mostly average and above average markings. There are two ‘excellent’ markings and one ‘very good’ marking on each reference. One reference contains a marking of between average and below average in relation to ‘willingness to seek help and support’. Overall these references do not appear to have been adverse references for a recently qualified teacher. The claimant complains that the references contain numerical markings only and that the Principal did not take the opportunity to provide a narrative commentary at the bottom of the form. Mrs Glynn’s reaction to this was that such forms usually did not have an additional narrative completed. In the absence of any rebuttal evidence, the tribunal cannot see anything unusual in either standard reference. The third reference in 2013 was not in the standard form and it indicated the claimant was ‘an intelligent girl who did everything asked’ and that she was ‘honest and hardworking’. Furthermore, all three references in 2013 predated any alleged protected interest disclosure.
45. The tribunal was also referred to other references which were given in relation to the claimant on various dates in 2014. They appear, with one exception, to contain Mrs Glynn’s signature. One clearly does not and Ms Glynn denies ever issuing that reference. The markings on the 2014 references were a mixture of average, above average, very good and excellent markings. They do not appear to have been adverse references for a newly qualified teacher. They do not appear to be significantly different from the references in 2013.
46. In the course of the tribunal hearing there was heated discussion of the particular reference which purported to contain Mrs Glynn’s signature but which clearly did not do so. Mrs Glynn was definite that she had never written this reference and that she had never instructed anyone else to write it on her behalf and to sign it on her behalf. Given the numerical nature of the form and the significant number of markings that would have to be communicated, it seems to be the case that there would have been no point or any time-saving in such an instruction being given by Mrs Glynn to someone else. Equally, if the reference had been forged by the claimant, as Mrs Glynn suggested, it is difficult to understand how the claimant would have known which markings to give in respect of each indicator to maintain consistency with the other references. In short, this seems very peculiar and in this instance the tribunal cannot reach a conclusion. However, the origin of this particular reference in 2014 does not seem to be of any significance in this case.
47. In any event, it seems clear to the tribunal that references, which cannot be described as adverse references, were given by Mrs Glynn in relation to the claimant in both 2013 and 2014. All these references predated the dates of the alleged protected interest disclosures in December 2014 and August 2015 and it is difficult to see their direct relevance to any claim before the tribunal.
48. The claimant alleged that pressure had been placed upon her by the Principal to prevent her proceeding with job applications elsewhere and that the Principal had indicated to her that outstanding references would not be completed. That seems highly improbable. A teacher without permanent employment and at the start of her career is unlikely to have acquiesced in any such arrangement. In any event, the claimant appears not to have asked Ms Glynn to provide any references thereafter. The claimant clearly regarded herself as a permanent member of teaching staff until she was notified of the result of the interviews in June 2014. Any reduction in external job applications would have been consistent with that belief. The tribunal concludes on the balance of probabilities that the claimant had not been instructed not to apply for vacancies elsewhere.
49. Apart from that issue to do with references, the claimant’s employment history up to the date on which she failed to get the permanent post after being interviewed in June 2014, seems to have been relatively unremarkable. It is clear that she kept getting employment on a relatively regular basis from the first-named respondent and also that Mrs Glynn had actively participated in giving her that employment. The fact that she had been employed for successive periods as a temporary teacher, in the current difficult employment situation for teachers, indicates that both parties were content with the ongoing employment relationship up to June 2014.
50. The claimant, in the course of cross-examination, sought for some reason to argue that fixed-term appointments had been incorrectly advertised and that the NISTR Scheme had been wrongly used. The tribunal cannot see the purpose of this cross-examination or indeed the purpose of these allegations. If the claimant was correct that the relevant procedure had not been followed in full by Mrs Glynn and by the first-named respondent that it would have no discernible relevance to the claims before the tribunal. Any alleged procedural failings would have applied to all candidates or potential candidates.
51. In cross-examination, the claimant was asked directly whether she had been ‘extremely disappointed’ at not getting the permanent teaching position and getting the one year fixed-term appointment instead. She said “I wouldn’t say that, no” She stated that she was not particularly concerned about not getting the permanent post. Her concern was more about references being ‘withdrawn’. She was not concerned about a career at Derrygonnelly Primary School.
52. That answer, in cross-examination, does not appear credible. In her originating claim form, the claimant had raised the allegation that a ‘senior teacher’ had told her that she had not got the permanent post because she had disagreed with the Principal, Mrs Glynn. The claimant also alleged in that originating claim form that she had been told ‘by other staff’ that the interview had been fixed. She alleged that she had been told that the successful candidate for the permanent post had benefited from ‘her relationship with the CCMS assessor’. She alleged ‘cronyism’. No witnesses were called by the claimant to support those allegations.
53. In her witness statement to this tribunal, the claimant stated:-
“I believe my job was permanent and was being officially ratified.”
She alleged that the interview notes had been heavily altered without explanation and she criticised the scoring in the interview process.
54. In a letter sent by the claimant to the first-named respondent which was undated but was received on 19 September 2014, shortly after the claimant returned to school to commence the fixed-term contract for 2014/15, the claimant criticised the interview process. While the claimant raised other matters in the course of the latter part of this letter, she had not complained to the Board of Governors, or indeed to anyone else, about any matters related to her employment in Derrygonnelly Primary School before this point, ie before she had been unsuccessful in achieving the permanent post.
55. The tribunal therefore concludes that the claimant had been extremely annoyed at her non-appointment to the permanent post. She criticised the ‘lack of an appeal’; she sought at every opportunity to criticise the marking and the interview process. When she had returned to the school at the end of August 2014 to take up her one year fixed-term appointment, she was in fact extremely angry and resentful at the result of the interview process. Given her fairly regular employment in Derrygonnelly as a temporary teacher up to June 2014, the claimant regarded the permanent appointment as hers for the asking. To her mind, the interview process was to have been no more than the ratification of a post which was already permanent.
Interview process
56. The appointments to the temporary post and the permanent post were considered together. Applicants applied for both posts. The highest marked candidate was awarded the permanent post and the second highest marked candidate was awarded the temporary fixed-term post.
57. Thirty individuals applied for these posts. There was a short listing exercise and 12 individuals, including the claimant, were shortlisted. Nine candidates appear to have attended for interview. A five person selection panel chaired by Mr Donal Cox of the first-named respondent and including Mrs Glynn, the Principal, interviewed and marked those candidates. Those five members of the selection panel marked each candidate individually and an overall ranking was agreed. The claimant was individually ranked by four of the panel members at number 2 and by one panel member as number 1. The agreed overall ranking for the claimant was number 2. The successful candidate had been individually ranked by four of the panel members as number 1 and as number 4 by one panel member. The overall agreed ranking for the candidate who got the permanent appointment was number 1. With the exception of one panel member, a Ms Corrigan, the markings appear relatively consistent and the differences between the claimant and the successful candidate were fairly small but consistent. There were some alterations in the markings. However these were of the type that could be expected in an arithmetical exercise such as this and there was no attempt to hide the alterations or to obscure the original markings.
29 August 2014
58. The claimant and other teachers had returned on 28 August 2016 to prepare for the start of the school year. She stated that she had been working in her classroom on the next day, 29 August 2014. Mrs Glynn, the Principal, approached her and the claimant had nothing to say to her. She stated that Mrs Glynn when told that she had nothing to say, became increasingly agitated and slammed the door threatening to fire her and stated that she would never work again. In the claimant’s originating claim form she stated:-
“On 28 August 2014 the Principal made a number of unfounded allegations against me, which I disagreed with. She told me she thought I was the rudest young teacher she had ever met, and she would contact the CCMS and have me removed. She said I would never work again if I didn’t do as I was told. She questioned my ability to take responsibility for a class, which was completely unfounded.”
Mrs Glynn stated that the claimant’s behaviour on her return on 28 August 2014 became more and more unmanageable. In a 46 page response to an internal grievance from the claimant, Mrs Glynn stated that earlier on 29 August 2014 the claimant had arrived late into a staff meeting and had ‘rudely ploughed into the meeting with acknowledging anybody and yawned artificially whilst looking out the window’. She stated she had been shocked by this rudeness and bad manners. She had sought advice from the CCMS and had then gone to speak to the claimant in her classroom. She stated that when she invited the claimant to speak with her, the claimant ordered her out of the room, stated she did not want to speak to her ever again and to get out indicating this with her hand and pointing at the door. Mrs Glynn also stated that the claimant had told her that the CCMS had said Mrs Glynn was unprofessional. She stated that she would not talk ‘nowhere, never’. The claimant shouted that Mrs Glynn was unprofessional and ‘sneered contemptuously at me’. Mrs Glynn stated that ‘my last words were that if this continues we would be sitting down together with CCMS and I left. I kept my dignity throughout this altercation’.
59. One of the most bizarre things about this case is that the claimant had surreptitiously and without permission recorded both staff meetings and private conversations and indeed one Board of Governors meeting. This particular conversation on 29 August 2014 was also surreptitiously recorded by the claimant.
This behaviour is indicative of the claimant’s attitude to her colleagues, to her management and to her employment on her return at the end of August 2014. The claimant stated in cross-examination that she had intended to record only the staff meetings. Subsequent conversations had been recorded ‘accidentally’ when she had forgotten to turn her recording device off. The Board of Governors’ meeting had been held in the staff room in the evening. Again, the claimant alleged this had again been recorded ‘by accident’. The claimant had placed a camera with an audio recording device as part of a class project to observe bird life. The camera had been placed on a window sill in the staff room. There is no rational reason why a recording device would have been left on the staffroom windowsill all evening and all night facing a partially enclosed area to observe the varied birdlife in Derrygonnelly. There is no rational reason why anyone would have then examined some 16 approximately hours of recordings the next day in the hope of identifying some birdlife that would not have been readily available outside the claimant’s classroom during the working day. There is no rational reason why the claimant would have forgotten to turn off her recording device after staff meetings and to ‘accidentally’ record private conversations. There is no rational reason why the claimant would have chosen to secretly record the staff meetings in the first place. This evidence is not credible. It is highly improbable that any of these recordings were made by accident.
60. A transcript was provided of this conversation between the claimant and her principal, Mrs Glynn, on 29 August. The fact that the claimant had felt it either necessary or advisable to record such a conversation indicates her state of mind following her return to the school in August 2014 and following her failure to secure the permanent contract. It is clear from that transcript [Page 372] that Mrs Glynn attempted to speak calmly to the claimant and to find out what was wrong. It is equally clear that the claimant repeated that ‘I don’t have anything to say’ and stated that ‘there is nothing to talk about’. Mrs Glynn further attempted to get the claimant to speak to her with no recorded response from the claimant. The claimant then stated that Mrs Glynn had not sent her appropriate paperwork. The claimant then alleged that she had not received a text from Mrs Glynn in relation to the staff meeting that morning. She stated:-
“I never got a text from you the entire time I’ve been here.”
At that point Mrs Glynn seems to have finally snapped, after some considerable provocation, and stated:-
“How dare you show me such bad manners. You are completely unprofessional.”
The claimant responded in kind. Mrs Glynn then stated:-
“You will show me respect. I am your Principal.”
The claimant responded:-
“I would like a Principal I could respect.”
Mrs Glynn responded:-
“How dare you? How dare you? How dare you speak to your Principal in such a way. You will do what I tell you to do. You are the rudest young teacher I have ever met.”
The conversation continued briefly and it included Mrs Glynn stating:-
“I am going to get the CCMS to review your position here.”
61. It is clear that the claimant knew that this conversation was being recorded and that Mrs Glynn did not. It can be assumed that the claimant would therefore have been relatively careful of her behaviour. It is also clear that Mrs Glynn completed her response to the grievance some months later without the benefit of the transcript. Her recollection of this conversation was not completely accurate. There appears to have been no occasion on which the claimant shouted at her to ‘get out’ (on the assumption that the recording and therefore the transcript have not been edited). That said, it is clear that the claimant was discourteous and rude during this conversation and that she did not at any stage show the normal level of respect that can be expected from a teacher to a Principal. She had clearly been angry that what she had regarded as her permanent post had not been ratified. Mrs Glynn did not commence disciplinary proceedings at that stage although she would have been entitled to do so.
62. The claimant alleged, in her witness statement, that thereafter the Principal’s behaviour became ‘intolerable’. She stated that the Vice Principal, Mrs Gallagher, had told her that the Principal had driven a younger teacher to resign and to initiate a grievance. She also stated that the Principal had a history of victimising other staff and that the Vice Principal had advised her to ‘record’ the incidents of victimisation. The tribunal heard no evidence of any history of victimisation of other members of staff. It seems clear that Mrs Gallagher had attempted to resolve the obvious difficulties between the claimant and Mrs Glynn. She did not advise the claimant to electronically record conversations without permission. She did not tell the claimant that the Principal had a history of ‘victimisation’. Mrs Gallagher was clear in her evidence that she did not do so and it is highly improbable that a Vice Principal in her position would have made any such remark to a temporary teacher.
63. On 17 September 2014, the claimant lodged a grievance with the Chair of the first-named respondent. She criticised the interview procedure in detail and the procedure for the confirmation of her post. She complained that she had been better qualified and had better met the criteria than the successful candidate. She complained of pay being withheld or delayed through NISTR. She complained about the conversation with Mrs Glynn on 29 August 2014. She complained about an Extended Schools Programme which provided funding for after school classes. She returned again to the interview process and alleged that Mrs Glynn had exaggerated the successful candidate’s qualifications. She alleged that a SEN pupil in her class had in the previous academic year received little of the support that “he was entitled to” and that Mrs Glynn had threatened to reduce the support received by another SEN child from five to two hours a day.
64. The latter two complaints about SEN provision were not made by the claimant at the relevant time, ie during the previous academic year or when the alleged breaches occurred. If these complaints had any merit, or any perceived merit, it had been the responsibility of the claimant as the responsible teacher to have raised the complaints at the appropriate time. The claimant had not sought to raise either complaint with the first-named respondent, with the SENCO, with the Education Authority (or its predecessor the WELB,) with the Department of Education, with the parents or with social workers. It emerged solely in the context of the claimant’s obvious resentment about her non appointment to the permanent post.
65. The allegation in relation to what the claimant regarded as a ‘threat’ to reduce five hours SEN provision to two hours provision did not, even at its height, involve an actual breach of legal obligation. There was no evidence before the tribunal that the relevant statement of Special Educational Needs had specified five hours or any particular level of assistance or, even if it had, that an actual breach of that obligation had in fact occurred or been intended. The unrebutted evidence from Mrs Glynn was that it had been proposed that more independence be given to this pupil while still under supervision. Furthermore, in relation to the allegation about a different SEN pupil receiving less hours than he was entitled to, there was again no evidence of a statement of Special Educational Needs which required a particular number of hours of any particular kind of assistance, eg a classroom assistant or a SEN teacher and no evidence of any such requirement, if it was specified, being breached.
66. The claimant then sought to raise a complaint under the Data Protection Act. This tribunal has no jurisdiction in relation to that Act.
67. It appeared clear that thereafter the claimant deliberately refused to meet the Principal alone and that she would not attend her office. She stated in evidence that the Principal had been free to come and see her in her classroom (where others would have been present). She stated she would not meet the Principal without at least Mrs Gallagher being present. She was content to discuss matters with the Principal during staff meetings. However she knew, and no one else knew, that these staff meetings were being surreptitiously recorded by the claimant. The tribunal concludes that the claimant’s apparent willingness to engage in issues during those staff meetings must be coloured by the fact that she knew a recording had been taking place. Her apparent co-operation during these staff meetings was likely to have been influenced by her knowledge that a recording could be used to her advantage later.
68. The first-named respondent considered the grievance with the exception of her allegations in relation to the interview process. In the opinion of the first-named respondent, that was a matter properly for the second-named respondent who had managed the appointment process. That seems correct.
69. On 28 April 2015, the grievance sub-committee issued its decision. It seems to have been a remarkably even-handed decision. It referred to having heard details of a considerable number of incidents which highlighted communication difficulties between the claimant and Mrs Glynn. It appreciated the contribution of both to the life of the school and recommended that they engage in a formal process of mediation to restore effective professional relationships. This appears to have been a clear attempt to give the claimant another opportunity to get over her resentment at not getting the permanent post. That attempt failed.
70. The claimant did not accept the findings of the grievance sub-committee. In particular, the claimant made a bizarre allegation that the parish priest, who was a member of the grievance sub-committee, had received what she regarded as a suspicious payment of £1,500.00 from Mrs Glynn. That related to a charitable donation towards parish funds which had been raised by pupils of the school and which was presented by pupils to the parish priest on the altar during a public mass. There was nothing underhand or wrong in any of this. The allegation made by the claimant is entirely without foundation.
71. On receiving the report of the sub-committee which contained contributions from the claimant, Mrs Glynn was extremely shocked. She states she had felt threatened and that she had reported the matter to the police. That action seems to have been unwarranted in an employment dispute, albeit an obviously heated one. Nevertheless, Mrs Glynn has a crime report number and the names of two officers who attended at her home for a period of two hours to take her report. Despite that evidence, the claimant still refused to accept that such a report was made by Mrs Glynn and pointed repeatedly to a letter obtained by her from the Data Protection Office of the PSNI. That letter had been significantly redacted, including the date of the letter, during discovery. That letter said no more than that a subject access request from the claimant did not disclose any information which the Chief Officer was required to supply under the provisions of the Act. The claimant continually presented this as proof that no report had been made when it was perfectly obvious from the terms of the letter that it had indicated no more than the details of any complaint which might have been made were not required to be disclosed under the Data Protection Act. That is entirely and obviously different from a statement that no report had ever been made by Mrs Glynn. It was entirely possible, and consistent with the letter from the PSNI, that the PSNI held details of a complaint but had applied an exception, possibly under Section 29 of the 1998 Act. That possibility was not considered by the claimant.
72. On 6 May 2015 the Board of Governors discussed the budget for the forthcoming academic year. The LMS budget for the forthcoming year was to be reduced by £40,000.00 and enrolment was reduced. If staff remained at the current level; ie six permanent teachers, one temporary fixed-term teacher, and a Principal, the school would have a significant budget deficit. Because of those budget cuts, it concluded the budget would only permit employing six permanent teachers and a teaching principal. That would require Mrs Glynn moving in to a teaching role. For some of the time, a scheme known as ATP would provide for the hiring of a substitute teacher for brief periods to enable Mrs Glynn to attend to administrative tasks. In any event the Board of Governors concluded that the obvious choice for the staffing cuts was the claimant’s temporary fixed-term contract which would expire in any event at the end of August 2015.
73. The claimant appeared not to accept that the decision of the first-named respondent in this respect was an obvious decision for the first-named respondent to make. The fixed-term contract expired on the conclusion of the time period specified in that contract. There was no contractual requirement for renewal. There was not even a contractual provision requiring consideration of a renewal. It is not entirely clear what the claimant was suggesting should have been done. However, at points in her evidence she appeared to be suggesting that a member of permanent staff should have been made redundant to facilitate her retention through an extension of her contract or by her being granted permanency. At other points in the hearing, it appears to have been the claimant’s contention that the school should simply have run a significant budget deficit, which would have been compounded year by year.
74. There was no evidence whatsoever that the Board of Governors in reaching this conclusion had been motivated in any way by the alleged protective disclosures. The claimant’s primary argument before this tribunal was that protected and qualifying disclosures had been made by the claimant and that these had caused the first-named respondent to terminate her fixed-term contract by non-renewal.
That meeting of the Board of Governors had been surreptitiously and deliberately recorded by the claimant and the transcript of that recording had been provided to the tribunal. The members of the Board of Governors (the first-named respondent) did not know that the meeting was being recorded. They were speaking freely in what they properly regarded as a confidential meeting. The discussion focused initially on the forthcoming budget cut and the need to avoid a deficit. They discussed when a fixed-term worker could acquire permanency rights but there was no clear understanding of the legislative provisions.
Crucially, there was no mention of any alleged public interest disclosure, or of any difficulties between the claimant and Mrs Glynn. The feeling of the meeting was that it was probable that the claimant’s temporary fixed-term post could not be renewed; that Mrs Glynn would return to a teaching role and that an ATP assistant would be recruited from NISTR on a daily basis as required. The claimant could apply for that ATP position like anyone else.
75. The tribunal concludes that if any alleged public interest disclosures had been even a trivial contributory factor to the decision not to renew the claimant’s contract, it would have been mentioned in some form at this meeting. It was not mentioned and the tribunal concludes the only reason for the non-renewal of the claimant’s temporary fixed-term contract was the budget shortfall and the temporary nature of the claimant’s contract.
76. The claimant alleged that a school trip had been cancelled on 2 January 2015 by the Principal because of public interest disclosures. This was a trip to Dublin involving primary school children, at significant cost, to a science exhibition. It appears no other primary school children attended this event. Having listened to the evidence of the claimant and Mrs Glynn, the tribunal concludes that relationships between the two at this point were poor; principally because of the claimant’s behaviour and her resentment at not getting a permanent post. Nevertheless the decision to cancel the trip was one the Principal was entitled to make and there was no evidence that it had been related in any way to any alleged disclosure.
77. The claimant wrote to the parents on 5 January 2015 which prompted Mrs Glynn to write to her on 16 January 2015 advising her that correspondence with parents should only be issued with her authority. The claimant was not prevented from speaking to parents. The injunction clearly related to written correspondence and in the light of the claimant’s letter of 5 January 2015 appears to have been entirely reasonable. There is no evidence that it had been related in any way to any disclosure.
78. The claimant alleged that she had been excluded from a training day in April 2015. The Principal was absent on sick leave at that point. Apart from the claimant’s assertion there appears to be no evidence the claimant had actually been excluded from training or that any decision in relation to training had been related to any disclosures. The claimant did not call the teacher who had allegedly excluded her to give evidence.
79. On 23 May 2015 the claimant received a standard notification that her contract would be ending on 31 August 2015. She was asked to attend a meeting to discuss it. The claimant wrote instead to ask why such a meeting was being held. She did not indicate that she would attend and the meeting did not proceed. On 26 June 2015 the claimant received a letter confirming the decision to end her contract and indicating that she could appeal that decision.
80. The claimant also alleged that her failure to be appointed to the ATP post was an act of unlawful detriment. It was not. There was no evidence of any connection between her non-appointment and any disclosure. It had been due to the breakdown in trust between the claimant and the Principal because of the claimant’s poor behaviour. That behaviour arose out of the claimant’s resentment at not getting the permanent post.
81. The claimant did not appeal the decision to dismiss in time even though she was getting advice from her trade union. The appeal therefore did not take place.
Decision
Public interest disclosure
82. The claimant alleged that she had made protected and qualifying disclosures in two areas; ie extended schools funding and special educational need provision.
83. Those disclosures only emerged after the claimant had failed to secure a permanent post starting at the end of August 2014 and first emerged in the context of a grievance which focused on her non-appointment to a permanent post.
84. The claimant’s assertion that she was not interested in a career in Derrygonnelly Primary School is not credible for the reasons set out above. It is clear that the claimant had regarded the competition in June 2014 for a permanent post as a mere formality. In effect, she believed and expected that the interview process would be rigged in her favour to produce a predetermined result. She had been extremely angry when she was not offered the permanent post and had behaved very badly thereafter. Her disclosures, whether or not disclosures of information rather than mere allegations, and whether or not the claimant reasonably believed the disclosures were accurate, were not made in good faith.
85. It is clear that the allegations were made as part of the claimant’s dispute with the first-named respondent and that they were not made in the public interest. They were made in an attempt to create trouble for Mrs Glynn and to advance the claimant’s own position. If the claimant had been genuinely concerned about either school funding or about special educational needs provision, disclosures would have been made earlier than they were and would not have been made as part of a private dispute.
86. Even if the disclosures had been made in good faith, and even if they were protected and qualifying disclosures, it is clear that the ‘detriments’ alleged by the claimant in the document of 14 January 2016 were unrelated to any such disclosure.
The tribunal therefore unanimously concludes that the claimant is not entitled to the protection of Articles 70B(1) or Article 134A of the 1996 Order.
87. The claims of public interest disclosure detriment are therefore dismissed.
Procedural automatic unfair dismissal
88. The claimant’s fixed-term contract expired on 31 August 2015.
89. The claimant was notified of that termination by letter dated 21 May 2015. She would have been aware of the termination date in any event and would have had no reasonable expectation of either renewal or extension of that contract.
90. That letter of 21 May 2015 invited her to a meeting on 29 May 2015 to discuss the proposed ending of her employment. She was notified of her right to representation.
91. While the financial circumstances of the school made the termination of her employment highly likely, if not inevitable, the tribunal is satisfied that the letter complied with the statutory requirements of Stage 1 of the dismissal procedures. It is not the case, as the claimant appeared to argue, that a dismissal is automatically unfair where the circumstances faced by the employer are such that a termination of the employment is inevitable or almost inevitable. An employer cannot be required to inject uncertainty into a situation where none or little exists.
92. The claimant responded to the letter of 21 May 2015 by letter dated 23 May 2015 and asked why this procedure had not been followed on an earlier occasion. She did not confirm attendance at the meeting.
93. The first-named respondent wrote to the claimant on 29 May 2015 and pointed out that the claimant had not confirmed her attendance and that the meeting would not take place.
94. The tribunal is satisfied that the first-named respondent, the employer, complied with Stage 2 of the statutory procedure. It was not required in these circumstances to chase the claimant with a further offer of a meeting.
95. On 26 June 2015, the first-named respondent confirmed the dismissal decision and offered an appeal. That appeal was to be made in writing within five working days.
96. The claimant wrote to the first-named respondent on 11 July 2015, well outside the time-limit. She did not lodge an appeal but asked for reasons for the termination of her employment. Those reasons, ie the expiry of the fixed-term contract, had been adequately set out in the letter of 21 May 2015. The claimant’s allegation that she was not allowed an appeal is unsustainable.
97. The tribunal concludes that the termination of the claimant’s employment was in compliance with the 2003 Order and not automatically unfair.
Substantive Unfair Dismissal
98. The non-renewal of a fixed-term contract, which expires through the effluxion of time, is a dismissal for the purposes of the 1996 Order (see Article 127(i)).
99. The first issue for the tribunal to determine is the reason for the dismissal and whether that reason is a potentially fair reason for the purposes of the 1996 Order.
100. The tribunal has determined that the non-renewal of the temporary teaching contract was not due in any way to any alleged public interest disclosure.
101. It is clear from the transcript of the Board of Governors meeting on 6 May 2015 and from Mr Smyth’s evidence that the reason for the dismissal was a combination of funding difficulties and the temporary nature of the contract. The argument before the tribunal was whether the dismissal was for ‘some other substantial reason’ or ‘redundancy’; both potentially fair reasons for the purposes of the 1996 Order.
102. Under Article 174(1) of the 1996 Order, an employee who is dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to:-
“(a) the fact that his employer has ceased or intends to cease -
(i) to carry on the business for the purposes for which the employee was employed by him; or
(ii) to carry on that business in the place where the employee was so employed; or
(b) the fact that the requirements of that business -
(i) for employees to carry out work of a particular kind; or
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish.”
103. Under Article 130 (11(b)), ‘some substantial reason’ is a reason other than those specified in Paragraph (2), including redundancy, and must be:-
“some other substantial reason of a kind such as to justify the dismissal of an employee holding the position the employee held”.
If the dismissal was for the reason or principal reason of redundancy, it cannot be for some other substantial reason.
104. In the present case, the school was to continue as before in the same location. This appears to be a case where Article 174(1)(b)(i) applies. The school no longer required the claimant to carry out the temporary teaching contract from September 2015. That work would instead be done by Mrs Glynn with ATP support as and when required.
105. In Pfaffinger v Liverpool Community College [1997] ICR 142, Mummery J stated:-
“It was held by the Court of Appeal in Nottingham County Council v Lee [1980] ICR 635 that, in interpreting equivalent provisions in earlier legislation (the Redundancy Payments Act 1965), it was necessary to ask, in the case of a fixed-term contract which expired and had not been renewed; ‘why was the employee’s contract not renewed?’ If the answer was, in the case of a teacher, that there was no work for him to do and the requirements of the school or college for teachers had diminished or were expected to diminish, there was a redundancy.”
106. The tribunal was referred to the decision of the Supreme Court in University and College Union v The University of Sterling [2015] UKSC 26. However, that decision relates to collective redundancies and the requirement for consultation under different legislation. It is of no assistance here.
107. The tribunal was also referred to the EAT decision in Greater Glasgow Health Board v Lamont [UKEATS/0019/12]. IN that case the EAT held there had been no redundancy. The dismissal had been for some other substantial reason. However, in that case the number of employers did not diminish. A fixed-term employee who had been hired to temporary replace a seconded employee for the specified term of that secondment was dismissed on the expiry of that term and the return of the secondee. In the present case the number of staff, including the Principal and both permanent and fixed-term staff, reduced by one because of funding difficulties.
108. The tribunal therefore concludes that the reason for the dismissal was redundancy a potentially fair reason for the purposes of the 1996 Order.
109. The first issue that this finding raises is the potential entitlement to a redundancy payment. The tribunal has not been referred to any contractual provision for a redundancy payment in those circumstances. There is no specific or reasonably implied claim for breach of contract and no such claim appears on the legal issues agreed in the Case Management Discussion on 7 January 2016.
110. The claim form refers at Paragraph 7.1 to a claim for a ‘Redundancy Payment’ which probably refers to a statutory redundancy payment. However at Paragraph 7.4(40) the claimant referred only to claims for unfair dismissal, age discrimination (since withdrawn) and public interest disclosure detriment. No claim for a statutory redundancy payment appears in the agreed list of legal issues.
However, whether or not such a claim is properly before the tribunal, the tribunal is sure that payment of the requisite statutory redundancy payment, which has not been calculated by either party, will be addressed by the first-named respondent as soon as possible.
111. The fairness of the decision to allow the claimant’s temporary contract to determine on the agreed and contracted date, although technically a dismissal for the purposes of the 1996 Order, must be considered against a background of reality and common sense. It must be determined having regard to all the relevant circumstances ‘in accordance with equity and the substantial merits of the case’.
112. This case concerned a small rural primary school with budget difficulties. It had a permanent Principal, Mrs Glynn, who, up to September 2015, had been engaged in administrative activities without a full-time teaching role. It had a limited complement of permanent teachers and one temporary teacher (the claimant). The budget difficulties meant that it had to reduce the teaching complement by one and it had to return the Principal to a full-time teaching role. The only candidate for redundancy was the claimant. Her temporary contract ended on 31 August 2015 before the commencement of the 2015/16 school year. Unless that contract had been renewed or had been extended, there would have been no surplus of staff on 1 September 2015. The problem would have solved itself. Essentially what the claimant seeks in this case is that the respondent should have extended or renewed that temporary contract to create a surplus of staff where none would otherwise have existed.
113. There is no fixed statutory process for the management of redundancies, apart from the three step process in the 2003 Order for terminating employment. That three step process was followed in this case.
114. The leading case in this case; Williams v Compair Maxam Ltd [1982] IRLR 83, does not purport to set out binding and detailed procedural steps which must be followed in every case. That decision seeks to deal with the standard industrial redundancy situation. The present case is entirely different.
115. The Williams case deals, inter alia, with warnings of potential redundancy. In the present case, the claimant had been given a temporary one year contract. That one year contract had been put in place to use up a non-recurring budget surplus. The claimant accepted, in cross-examination, that she knew that the contract had been temporary and that there had been no provision for renewal or extension. That acceptance by the claimant, in cross-examination, does not sit easily with her concurrent argument that she regarded her position as permanent. Nevertheless, the claimant had no reasonable expectation of renewal or extension. She knew at all stages that her contract would end automatically on 31 August 2015. That is why she had been so angry at not getting the permanent appointment in June 2014. No warning of impending redundancy was therefore required; it would have been otiose.
116. Against the background of a temporary fixed-term contract, contrasted with a permanent contract which had been awarded at the same time, there was no need for formal discussion or consultation. The claimant had been offered both a Stage 1 meeting and an appeal meeting under the statutory dismissal procedures set out in the 2003 Order. She failed to avail of either. This was a clear temporary fixed-term contract where both contracting parties knew that it would end automatically on 31 August 2015 and where there had been no provision for and no reasonable expectation of renewal or extension.
117. A selection process with a selection group and selection criteria would have been entirely artificial and would have ignored the reality of the situation. The core question for the tribunal to determine is whether the decision had been reached fairly in all the circumstances of the case having regard to justice and equity. The tribunal is satisfied that this had been the case.
118. In the circumstances of the present case the authorities are of little assistance. While Polkey v AE Dayton Services [1987] IRLR 507 indicated that procedural steps laid down in authorities, such as Williams, should be taken by employers facing redundancy situations, the House of Lords restricted that injunction to ‘the great majority of cases’ and not to ‘all cases’. It does not apply in every case and should not be applied to create artificiality and unreasonable expense.
119. The issue for the tribunal to determine is ‘fairness’. The 1996 Order, or employment law generally does not seek to fix a small employer with artificial, unnecessary and expensive procedural requirements before it reaches an obvious decision.
120. There is no freestanding (or any) claim under the Fixed-Term (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (the 2002 Regulations’) before the tribunal. Nevertheless the claimant still seeks to rely on those Regulations.
This is a statutory tribunal with no inherent jurisdiction. Its statutory jurisdiction is dependent upon the existence of a claim. There is no claim under the relevant statutory provision and therefore no jurisdiction to determine any such claim.
121. In any event, the 2002 Regulations acknowledge the existence of the inherently temporary nature of fixed-term contracts. Permanency is only provided in limited circumstances; see Alfred v Department of Justice www.employmenttribunalsni.gov.uk. There is nothing illegal or wrong in a fixed-term or temporary contract terminating on the given and contracted date. If the employee had not acquired permanency under the particular provisions of the 2002 Regulations, there is nothing wrong or illegal in allowing temporary contracts to terminate on that given date to avoid any adverse impact on permanent workers. That is after all the point of fixed-term contracts. The wording of the respondent’s procedure cannot alter that basic position. The claimant cannot reasonably assert equality with permanent workers in terms of the conclusion of her contract. She cannot argue that the continued employment of permanent teachers should be put at risk to offer her permanency which is not provided by either the 2002 Regulations or by contract.
122. The claimant argues that alternative employment had not been considered. When the redundancy had been considered by the first-named respondent, no alternative teaching posts were in existence and none could have been offered to the claimant. This was a small school with limited teaching staff. The Board of Governors did state that the claimant could have sought employment under the ATP Scheme through NISTR as and when any such employment would become available. However, by the time those vacancies occurred, the claimant had effectively destroyed the trust and confidence which had previously existed between her and the employer. None of this can impact on the fairness of the decision taken by the employer in this case.
123. The decision of the tribunal is therefore that this was a fair decision on the ground of redundancy for the purposes of the 1996 Order.
The claimant was clearly a competent teacher who had secured consistent employment with the first-named respondent. It is a pity that she reacted so badly to the result of the selection process in June 2014 and that she made her working relationship with the Principal so difficult on her return in August 2014. The tribunal hopes that she can now rebuild her career elsewhere.
124. All claims are dismissed.
Vice President
Date and place of hearing: 27 and 30 June 2016; and
4 - 5 July 2016, Belfast
Date decision recorded in register and issued to parties: