United Kingdom Employment Appeal Tribunal

(a)        that the Claimant was to be engaged at a different school, the Shirley Park Academy in Croydon;

(b)         that the re-engagement was to occur no later than 9 April 2012; and

(c)         that he was to be engaged at a salary of £40,433 p.a. 

Although the formal Judgment and Reasons were not sent to the parties until 19 March 2012 the Tribunal, which we are told took “a robust and interventionist approach”, to which the parties responded, had made it clear at the hearing what course it favoured and had discussed with the parties the terms on which the Claimant might be re-engaged.

OASIS’s APPEAL

THE STATUTORY PROVISIONS

“(1)     This section applies where, on a complaint under section 111 [i.e. of unfair dismissal], an employment tribunal finds that the grounds of the complaint are well-founded.

(2)     The tribunal shall -

  (a)    explain to the complainant what orders may be made under  Section 113 and in what circumstances they may be made, and

(b)    ask him whether he wishes the tribunal to make such an order.

(3)     If the complainant expresses such a wish, the tribunal may make an order under section 113.

(4)     If no order is made under section 113, the tribunal shall make an award of compensation for unfair dismissal ...”

Section 113 provides:

“An order under this section may be -

(a)     an order for reinstatement (in accordance with section 114), or

(b)     an order for re-engagement (in accordance with section 115),

as the tribunal may decide.”

“(1)     An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment.

(2)     On making an order for re-engagement the tribunal shall specify the terms on which re-engagement is to take place, including -

(a)     the identity of the employer,

(b)     the nature of the employment,

(c)     the remuneration for the employment,

(d)     any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of re-engagement,

(e)     any rights and privileges (including seniority and pension rights) which must be restored to the employee, and

(f)     the date by which the order must be complied with.

(3)    . . .”

“(1)     In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account -

(a)     whether the complainant wishes to be reinstated,

(b)     whether it is practicable for the employer to comply with an order for reinstatement, and

(c)     where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.

(2)     If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.

(3)     In so doing the tribunal shall take into account—

(a)     any wish expressed by the complainant as to the nature of the order to be made,

(b)     whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and

(c)     where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.

(4)     Except in a case where the tribunal takes into account contributory fault under subsection (3)(c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement.

(5)-(6) …”

OASIS’s CASE BEFORE THE TRIBUNAL AND THE EVIDENCE

“In formal discussion between the parties and the Tribunal before hearing any evidence, the Claimant accepted that, in the light of any differences between himself and his former colleagues at the Respondent’s Immingham Academy, it would not be practicable to seek reinstatement, either in his previous position or in any other position, at Immingham.  Indeed, the Claimant accepted that he had made it clear, in the Case Management Discussion at the conclusion of the original Hearing, that he was prepared to work the Respondent anywhere within the United Kingdom.  It therefore seemed to the Tribunal that if a Reinstatement/Re-engagement Order was to be made at all, it could only be made on the basis that the Claimant was employed elsewhere, i.e. that the Claimant would be re-engaged rather than reinstated.  The Claimant accepted that position and the Tribunal was not therefore required to make any decisions as to the practicability of the Claimant returning to Immingham.”

Thus the only issue which the Tribunal considered was re-engagement.  It had been established prior to the hearing, and was confirmed by Oasis, that it had vacancies for a maths teacher at two of its schools, one in Bristol and the other at Shirley Park.

(1)            Oasis had referred the Claimant to the General Teaching Council for England (“the GTCE”) and the Independent Safeguarding Authority (“the ISA”), on the basis of essentially the same allegations as had been made in the disciplinary proceedings against him.  She set out the history of the referrals, including the fact that both had been concluded in his favour.  The Tribunal had previously ordered disclosure of the relevant documents, but she explained why Oasis had not felt able to disclose three particular witness statements.  It is not clear what materiality all this had to the issue of re-engagement.

(2)            Ms Graham complained that since the beginning of the dispute the Claimant had harassed Oasis and members of its staff with aggressive correspondence making offensive and untrue allegations, including allegations that it had fabricated evidence, and had persisted in doing so despite being asked to correspond only with Oasis’s solicitors.  He had also made complaints to the ISA and to the regulatory body for academies, the Young People’s Learning Agency (“the YPLA”).  The final paragraph reads:

“Given the Claimant’s conduct as set out above, I do not consider re-employment to be an option.  In addition to the Claimant’s continued and repeated harassment of the Respondent’s employees, the Claimant has made numerous and serious unfounded allegations against the Respondent and members of its staff and in particular those staff within the HR department, without providing any supporting evidence.  His conduct has been aggressive and has caused significant distress to the members of staff involved and it would be unreasonable for those staff members to be expected to work with the Claimant in the future.  I consider that the relationship between the Claimant and Respondent has broken down irreparably and re-employment is simply not feasible.”

Both the referrals to the GTCE and ISA and the correspondence on which Ms Graham relied were put before the Tribunal.

“14. Ms Graham went further in her oral evidence than she had in her witness statement.  She contended that the Claimant was vindictive and vexatious; and that he was not fit to teach anybody.  The Claimant had allegedly refused to allow himself to be observed in lessons, a matter that was regarded as very serious within the teaching profession.  In short, in the light of the allegations that the Claimant had made and the manner in which he conducted himself, it would not be practicable to re-engage him, because he would make similar allegations against the Respondent organisation as a whole.

15. Finally, for our purposes, she contended that because the Claimant had been severely critical of the Respondent’s HR Department, nobody within that Department could properly manage him as part of their normal function…”

It also appears that she alleged that at the school at which he had taught for a year following his dismissal, Fulwood Academy, he had failed an observation; and that she described the Claimant as having alleged that he was the victim of a conspiracy.

“Mr Flynn agreed that, if the Claimant was to ask similar questions of Ms Graham in respect of each of the allegations which she had made to the GTCE, the answer would be similar, namely that Ms Graham was simply reporting that which had been reported to her.  Equally, if the Claimant gave evidence on each of those matters, he would deny that there had been such misconduct.  A number of examples were put before the Tribunal and it appeared that the Claimant would be able to satisfy the Tribunal, on what would, in effect, be unchallenged direct evidence, that the allegations of impropriety made against him were largely unsubstantiated.  It was, of course, the case that the Claimant had only been accused in disciplinary proceedings of the matters which were the subject of the original Hearing and it was accepted that he was unfairly dismissed in respect of those allegations.  Whatever other allegations had been made to the GTCE and/or the ISA, they had not been the subject of any formal disciplinary processes.  The Tribunal therefore proceeded, as all parties agreed, on the basis that the Claimant had not committed any such further misconduct as had been alleged in that correspondence.”

“16. The Claimant denied that he was vindictive and/or vexatious.  He denied that he had refused to allow an observation.  He accepted that he had failed an observation at Fulwood Academy but explained why that was, by reference to the conduct of the relevant students.

17. We were impressed by the evidence of the Claimant.  The Claimant described himself as a man of principle and, insofar as he has taken up the case of at least one other colleague at Immingham Academy, that is clearly the case.  He was not prepared to let matters, which he considered to be wrongdoing, pass without taking an active role to prevent such events reoccurring.  We accepted from him that numerous of the allegations which had been made by Ms Graham in correspondence could not be justified.  On the facts of these allegations, so far as they are material to the issue we need to decide, we accept from the Claimant that they are largely allegations which have been untested and unproven. We treated the Claimant as a person who has not been proved to have committed any one or more of the very serious allegations of misconduct made against him.  Accordingly, there is no reason why he should not be treated as a person who can properly teach secondary age school children.”

16.         Mr Jeans took us through the key points in the documents which he said had been relied on before the Tribunal as demonstrating that the relationship between the Claimant and Oasis was such as to render re-engagement impracticable.  They can be summarised as follows:

(1)            In an email dated 17 January 2011 to Ms Graham the Claimant describes the evidence of a colleague on which Oasis was relying as “fabricated” and raises the possibility of “collusion” between that colleague and another potential witness.

(2)            In his lengthy witness statement for the purpose of the liability hearing before the Tribunal the Claimant describes the Chair of Oasis’s Board, the Rev Wes Sutton, as having “abrogated his responsibilities in order to allow the Respondent’s HR department to suppress evidence”.  The statement includes an appendix headed “Falsification of Documents relating to the Local Safeguarding Children’s Board” which alleges that a colleague at Oasis and the Child Protection Facilitator at Lincolnshire Council backdated their signatures on a document submitted to the Board.   

(3)            On 19 January 2012, i.e. in the interval before the liability and remedy hearings, Oasis’s solicitors asked the Claimant to cease trying to contact the Chief Executive’s Office.  He responded by writing to Oasis’s Founder, the Rev Steve Chalke, on 24 January 2012.  The letter complained of Oasis’s conduct both towards him and towards a colleague, Mrs Zukowska, who had been dismissed in 2009 and whom he had represented at a tribunal hearing.  It went on to accuse “Oasis HR” of trying to suppress the evidence of a witness favourable to him, a Mr Dixon.  It also complained that Oasis had, notwithstanding its admission of unfair dismissal, referred his case to the GTCE and the ISA: that is described as “malicious”.  Although those are serious allegations, the general tone of the letter is reasonably temperate.

(4)            On 22 February 2012, i.e. very shortly before the remedy hearing, the Claimant sent an email to Oasis’s solicitors and to Mr Chalke complaining that Ms Graham had referred him to the ISA in relation to the conduct for which he had been dismissed, notwithstanding its acceptance that his dismissal had been unfair: the referral said that Oasis had only conceded procedural unfairness and that it continued to consider the Claimant “a wholly unsuitable person to work with children in any capacity”.  The email describes this as “an outrageous perversion of the truth”, since it had become clear before Oasis threw in the towel that there was in fact no basis for the charges against him.  It says that Oasis’s conduct constitutes “criminal contempt for justice also the criminal offence of fraud”.  He also refers to Ms Graham having attempted to suppress evidence and to prevent the truth coming out.

THE TRIBUNAL’S REASONS

“Mr Flynn suggested that the fact that the Claimant had made a number of serious allegations, which had been found to be unsubstantiated or had been abandoned, was a factor which the Tribunal should take into account in considering practicability.  The Respondent submitted that the serious nature of those allegations and the wide number of people against whom they were levelled meant that any re-employment order would lead to industrial difficulties.”

It observed, at paragraph 21:

“It seems to us that that contention has some difficulties of its own. It is noted that the Claimant made (but subsequently withdrew) an allegation of race discrimination.  Any such allegation is, of course, a “protected act” and any improper action taken against a person in the position of this Claimant who has committed a protected act would amount to unlawful victimisation.  It did not seem to us that it was the intention of Parliament that a person who was protected against victimisation should, nonetheless, lose the benefit of the primary remedy of re-employment merely because there might be industrial relations difficulties.”

“Miss Nothman asks on that basis for reinstatement. We find it quite impossible to order this. Maybe provoked by her anxiety and despair during the various inquiries, she has made allegations against the members of the staff which would make her reinstatement at Copthall School, even at this distance of time, unthinkable.”

She sought permission to appeal to the Court of Appeal, which was refused.  Ormrod LJ said at para. 4 (p. 66):

“Miss Nothman has mentioned in her proposed Notice of Appeal (and from time to time touched on it in this Court) what she believes to be the background of this case, that is her belief that there has been a long-standing conspiracy against her. We have made it clear in this Court that we cannot investigate that. It is only right to say that anyone who believes that they are a victim of conspiracy, and particularly by their employers, is not likely to be a satisfactory employee in any circumstances if reinstated or re-engaged.”

“25. We can now come to our conclusions.  Whilst, as we have indicated, very few successful Claimants nowadays seek re-employment orders, the relevant legislation, setting out the primary remedies of reinstatement/re-engagement is now some forty years old.  It has not been substantially amended during that period.  It remains the intention of Parliament that a successful Claimant should be reinstated or re-engaged, if he so wishes.  The only relevant circumstance in which that will not occur is if it is not practicable.  The Respondent’s primary case on practicability is, in short, that the Claimant has been the subject of a substantial number of allegations of misconduct against him and that he, in turn, has made a substantial number of allegations of misconduct on the part of the other employees of the Respondent, some of which are then alleged to amount to further misconduct.  It seems to us that that is not an uncommon situation in unfair dismissal claims involving professional people.  It is notoriously the case that complex allegations and counter-allegations are made in such cases and Tribunals frequently spend weeks, rather than days, in analysing and deciding the contentions of those parties.  It is the task of the Tribunal to reach a conclusion on the merits of those matters.  It is open to the parties to make such allegations as they think will assist their respective cases.  It is open to each of the parties to communicate with their opponent if they seek to argue the merits of the case in correspondence.

26. Taken at face value (and, indeed, in detail) Mr Flynn’s submission on behalf of the Respondent would mean that a Claimant who had been involved in a relatively bitter dispute with his employers, and who then succeeded in a claim for unfair dismissal, could never be reinstated to re-engaged because the prior history would make such re-employment impracticable.  It seems to us, however, that there is likely to be a substantial difference between the manner in which a party has conducted itself in litigation (and, of course, in earlier internal disciplinary procedures) and the manner in which that person will conduct himself in subsequent employment, some distance from the original cause of the relevant problems.

27. Of course, as the Claimant conceded, he will remain a man of principle.  That does not, however, mean that he will raise his principles at every opportunity and we would urge him not to do so.  We consider that, if we were to accept Mr Flynn’s argument that re-employment is not practicable, the more bitter the dispute between the parties and the more serious the allegations and counter-allegations that had been made, that approach would have the effect of emasculating the remedy of re-employment.  We do not regard that as the intention of Parliament.

28. As to Mr Flynn’s point that there must be an element of potential success if a Re-engagement Order is to be made, we noted the Claimant’s frequent contention that it is vitally important for him to be reinstated as a Teacher and to be working as a Teacher.  He made it very clear that the purpose of his seeking a Re-engagement Order was to be able to present a CV to any future employer showing, entirely properly, continuous employment by the Respondent as a teacher over some years.  If he were not re-employed, there would be a material gap in his CV and the explanation of that gap would, in the view of the Claimant, produce substantial difficulties in his obtaining employment other than with the present Respondent.  In our view and on the evidence, it is likely that the Claimant will, upon re-engagement, seek further employment elsewhere, probably from the Autumn Term 2012.  If that proves to be the case, then the Respondent will no doubt seek to support the Claimant in leaving this employment.  That is likely to be a successful outcome for both parties.

29. During the course of the Hearing, the Respondent suggested, through both Ms Graham and Mr Flynn, that whatever the good intentions the Claimant now expressed, he was likely to continue to display the type of conduct of which the Respondent complained.  In particular, he was unlikely to leave the present dispute behind and, if re-engaged, he would continue to pursue the present battle.  We can understand the Respondent’s concerns on that matter.  We suggested to the claimant that, if he was serious about re-engagement, he would equally have to accept that the Respondent’s concerns were valid.  We invited the Claimant to write out a form of undertaking which he would offer to the Respondent.  In due course, it became clear that, rather than giving an undertaking to the Tribunal, which may not be enforceable, it was preferable to include the terms of that undertaking as a specific term of any Re-engagement Order.  Both parties accepted that that was the proper basis on which we should proceed and the terms of Paragraph 2.8.1 of the Judgment above follow the Claimant’s original undertaking very substantially.  The last sentence was added to the Claimant’s undertaking at the suggestion of Mr Flynn and with the consent of the Claimant.

30. We have therefore concluded, for those various reasons, that a Re-engagement Order should be made in the terms set out in the Judgment.  The Claimant must strictly comply with the terms of Paragraph 2.8.1 of the Re-engagement Order.  If he does not do so, the Respondent will be acting entirely properly in taking further disciplinary action against him by reason of any breach of the terms of his contact as we have, in effect, drafted it.”

“2.8   The following terms shall be included in the contract of employment to be issued by the Respondent to the Claimant:-

2.8.1  The Claimant withdraws his existing complaints to the YPLA and the ISA and shall not pursue those complaints through the Department for Education or through OFSTED (no existing complaint having been made).  The Claimant will not write further to the Founder, Chief Executive Officer of Chair of the Board of Trustees of the Respondent about these same matters nor will he pursue any complaint against the Human Resources Department of the Respondent or its individual members about the matters which has caused the dispute between the parties which is the subject of Case Number 1807521/2010 in the Employment Tribunal.  The Claimant will treat all complaints and disputes that have been the subject of his letters to the Respondent as resolved between those parties.  The Claimant will at all times during his employment by the Respondent at the Shirley Park Academy and elsewhere (if appropriate) strictly comply with the Respondent’s procedures relating to disciplinary and grievance matters and any whistleblowing policies.  He will comply with all reasonable management instructions during the course of that employment.

2.8.2 The Respondent will similarly treat all such issues as have arisen between the parties in respect of that dispute as resolved and will not pursue any such matters further nor will it complain to any third party in any manner in relation thereto.”

The Claimant confirmed to us that all except the final sentence of para. 2.8.1 was substantially drafted by him (though subject to some tidying up by the Tribunal): the Tribunal had asked him to do so over the lunch adjournment.

THE GROUNDS OF APPEAL

(1) Misdirection/Wrong Approach

“This legislation is not designed to enable complainants to re-establish their reputation or vindicate their reputation or anything of that kind. It is concerned with whether they were fairly or unfairly dismissed and once a conclusion is reached that they were unfairly dismissed, the question is how reasonably and most sensibly to compensate the unfairly dismissed employee.”

"... [I]t is inevitable to our way of thinking that when allegations of this sort are made and are investigated against a genuine belief held by the employer, it is difficult to see how the essential bond of trust and confidence that must exist between an employer and employee, inevitably broken by such investigations and allegations can be satisfactorily repaired by re-engagement or upon re-engagement. We consider that the remedy of re-engagement has very limited scope and will only be practical in the rarest cases where there is a breakdown in confidence as between the employer and the employee."

(2) The Tribunal’s Approach to “Conspiracy”

(3) Failure to Make Findings on Key Issues

CONCLUSION

THE CLAIMANT’S APPEAL