The Education Digest – In the Employment tribunal – Autumn term

Appeal against rejection of unfair dismissal and wrongful dismissal claims

In the case of Hewston v Ofsted:

• Mr Hewston was employed by Ofsted as an Inspector.
• During a school inspection, a group of children came inside ‘soaking from the rain’, and Mr Hewston brushed rain off one of children’s head and shoulders.
• There were no safeguarding concerns but the school complained and Ofsted investigated & initiated a disciplinary process. Ofsted concluded that Mr Hewston’s actions were inappropriate, damages their reputation & caused a fundamental loss of trust and confidence.  Mr Hewston was summarily dismissed.
• Mr Hewston, the claimant, brought claims of unfair dismissal and wrongful dismissal which were dismissed by the employment tribunal. Mr Hewston appealed.

The appeal was successful and the Employment Appeal Tribunal held:

• In relation to the claim of unfair dismissal, the tribunal failed to properly consider the fact the claimant had not been informed by a written policy, training or otherwise, that a single incident of physical contact could result in his dismissal.
• The tribunal also erred in failing to find that the dismissal was unfair when the claimant had not been given documents seen and relied upon by the dismissing officer.
• As for the wrongful dismissal, the tribunal was unclear as to whether the claimant’s conduct amounted to a repudiatory breach and so this was also overturned.
• The case was then remitted to a different tribunal to redetermine the wrongful dismissal complaint and to assess remedy for unfair dismissal.

The case shows the importance of ensuring that:

1. Staff are aware of what conduct is likely to result in summary dismissal
2. That during disciplinary proceedings staff are given relevant documents
3. And that expected behaviours are communicated to third parties.

Competing protected characteristics

In the case of Higgs v Farmor’s School:

• Mrs Higgs worked as a pastoral administrator and work experience manager at Farmor’s School.
• Mrs Higgs is a Christian and posted comments on Facebook relating to same-sex marriage and gender being a matter of choice and not biology.
• The school received a complaint from a parent regarding the Facebook posts and following an investigation and disciplinary hearing, Mrs Higgs was dismissed for gross misconduct.
• Mrs Higgs brought claims of discrimination and harassment on grounds of religion or belief, which were dismissed by the Employment Tribunal. The tribunal found that the school’s reason for dismissing Mrs Higgs were due to concerns that someone reasonably reading the posts could reasonably consider that she held transphobic and homophobic views, and not on grounds of her protected beliefs

The appeal was successful and the Employment Appeal Tribunal applied a different test:

• Whether an individual’s manifestation of their belief is inappropriate is subject to balancing Mrs Higgs’ freedoms to hold her religious views against the legitimate interests of her employer and others.
• The EAT found that the Tribunal had failed to apply the correct “proportionality” test, so the matter would be remitted to the Tribunal for it to apply the correct test to the facts

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Take Me There

The Employment Tribunal will now need to apply the correct test and decide whether its decision to dismiss Mrs Higgs’ claim will remain the same. Due to a growing number of cases relating to competing protected characteristics being brought, the EAT provided some helpful guidance as to the factors that might be considered when determining whether the manifestation of the belief was so objectionable that it justifies the actions of the employer. The factors include:

1. The content/extent of the manifestation and the tone used
2. The worker’s understanding of the likely audience
3. The extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business
4. Whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk

Unfair Dismissal

The Employment Tribunal has delivered its (very lengthy) judgment in the case of Lewis v The North Huddersfield Trust and Mr A.

• Ms Lewis was a PE teacher at North Huddersfield Trust and Mr Fell was the headteacher. Ms Lewis was also a National Education Union representative, whose role involved supporting individual members employed by the respondent and also in promoting an appropriate working environment and policies.
• The relationship between Ms Lewis and Mr Fell broke down initially over strike action when she sent an email to all staff providing inaccurate information. The school then sent an email to all staff advising that Ms Lewis’ email was incorrect and should not have been sent to everyone.  Ms Lewis felt this was done because of her race and met with Mr Fell and informed him that she considered that he was bullying and harassing her.
• After the meeting, Mr fell emailed colleagues with his record of what had happened (and the tribunal preferred his account because of what happened because of his contemporaneous note) and described Ms Lewis’ attitude as “rather aggressive and accusatory”. Thereafter he felt vulnerable and sought to have people witness their conversation or avoid her.  Six months later Ms Lewis made a subject access request and concluded that she was being stereotyped as an “angry black woman” and this was the reason for her treatment.  Ms Lewis raised a grievance which was not upheld.
• Following the grievance, Ms Lewis did not attend various school functions, turned up late to lessons and complained about the school rota (she had asthma and was reluctant to physically attend work due to Covid). Ms Lewis was invited to a management meeting but refused to attend and was suspended.  The suspension resulted in negative publicity and industrial action.  Ultimately, Ms Lewis received a written warning.
• Upon being asked to return to work, Ms Lewis felt there had been no breakdown in trust and confidence, did not accept the outcome to her grievance or disciplinary and she distanced herself from the protests she had previously been involved with.
• Conversely, Mr Fell said he could not continue to work with Ms Lewis due to the damaged relationship and toll the negative publicity had taken and Ms Lewis was dismissed.
• Ms Lewis then brought claims for unfair dismissal, victimisation, race discrimination and harassment against both the school and Mr Fell.
• The victimisation and unfair dismissal claims succeeded albeit compensation for unfair dismissal was reduced by 50% to reflect the claimant’s pre-dismissal conduct, which included a finding that she had direct and active involvement in the media campaign. The complaints of race discrimination (which triggered the strain on Ms Lewis’ relationship with Mr Fell) and harassment were dismissed.

The case is a useful reminder to take contemporaneous notes and to de-escalate matters where possible.

If you have any questions about these cases or would like to discuss another matter concerning education law please do get in touch with our expert team of Education Solicitors.