Recent Discrimination Case Involving Newly Qualified Teacher and Two Other School Staff

The Claimant, Ms Baldwin, was employed at the school as a NQT from September 2014 until she resigned on the 18th March 2015. When she started at the school, Ms Baldwin was required to complete a formal NQT induction year. Her designated NQT mentor was Ms Miller, who was subsequently named as an individual Respondent in the claim lodged by Ms Baldwin. When Ms Baldwin accepted her role, she had not completed her postgraduate certificate in education (PGCE) because of ill health, which resulted in her submitting some of her assessments late. During the first term of her induction year, Ms Baldwin had a number of absences.

Shortly after Ms Baldwin started her NQT position, Ms Miller wrote to her PGCE tutor Ms Sternstein, in connection with Ms Baldwin’s targets and development requirements. The tutor explained that Ms Baldwin had been “very unwell” at the end of her course, which had caused delays in her completing her assessments.

Ms Miller emailed the tutor to ask about the Claimant’s ill health, in particular she asked for “further light on this matter…by confirming what was wrong with Cate when she was unwell and also how many days she was absent…”. She copied in the headteacher and said “I would also appreciate it if you kept this email correspondence between you and I.” Ms Sternstein responded to this email declining to answer the questions other than to say that the Claimant’s final placement “was not very supportive” and copied Ms Baldwin into the response.

Ms Baldwin and Ms Miller then had a discussion, where Ms Baldwin challenged Ms Miller about her questions to Ms Sternstein, saying that she had gone behind her back. Ms Miller then responded that “this was information shared between two professionals”. There was reference in this exchange to the Claimant’s professionalism. Ms Baldwin expressed her anger towards Ms Miller.

An NQT report on the Claimant was completed by the headteacher Mr Hodges, which included a comment that the Clamant had “not acted with integrity at all times”. The Claimant was very unhappy with this report and objected to it at the time. She eventually resigned on the 18th March 2015 and brought proceedings in the Employment Tribunal for disability discrimination. It was conceded that Ms Baldwin was disabled within the meaning of the Equality Act at the relevant time.

The Employment Tribunal decision

The Employment Tribunal found that the request for information from Ms Baldwin’s PGCE tutor made by Ms Miller was an act of direct discrimination by the school: “the reason why this email was sent to Ms Sternstein was because of the Claimant’s perceived disability and this allegation is proven”. A complaint of discrimination arising from disability was also upheld, based on the comment in the NQT report that the Claimant was “lacking in integrity.” The Employment Tribunal considered the comment was related to the Claimant’s disability or perceived disability and found the school could not show it was a proportionate means of achieving a legitimate aim. The Employment Tribunal found that the school was liable for the two acts of discrimination proven, but that the claims against the named individual Respondents, Ms Miller and Mr Hodges, were rejected. This was on the basis that their acts were a misguided attempt to address a complex situation and their main failing was not obtaining HR advice in good time. Ms Baldwin appealed.

Employment Appeal Tribunal finding

One of the grounds of appeal was that the Employment Tribunal had been incorrect in determining that the individual Respondents were not liable for the acts of discrimination. The Employment Appeal Tribunal examined this in detail, and overturned the decision of the employment tribunal, finding that the individual Respondent’s should indeed be found liable of discrimination, along with the school.

Comment

This case is a worthwhile reminder that discrimination claims can be brought against individuals personally provided that section 110 of the Equality Act applies. In this case, the conditions of section 110 applied: the individuals were employees, they did something (the act of discrimination) that was treated as having being done by their employer and that act of discrimination amounted to a contravention of the Equality Act.  If the provisions of section 110 of the Equality Act are met, the Tribunal doesn’t have any discretion to find that there is no liability on their behalf.

The Employment Appeal Tribunal noted that findings of discrimination against individual Respondent’s may be “harsh” but that the legislation is clear in its meaning and effect. It is worth noting that if a Claimant is successful with their claim for the same act of unlawful discrimination against more than one Respondent, the employment tribunal is entitled to make an award for compensation on a joint and several basis, meaning that the Claimant can take enforcement action against any of the Respondents for the full amount of the award. In reality, a Respondent may then seek a contribution for the damages from the co-Respondents, but as damages in discrimination claims are uncapped, this can lead to significant financial consequences.