17 November, 2020
The Board of Governors of IQRA Community Primary School (Respondent)
Ms F Mansur (Claimant)
Ms Mansur was a Teaching Assistant at the Respondent school. The Claimants initial claim was direct sex/race discrimination, and unfair dismissal.
There were several incidents that took place during Ms Mansur employment with the school. The Claimant complained about the conduct of another teacher, who she claimed had had inappropriate interaction with a pupil. She was dissatisfied with the employers' response to this complaint, so wrote an anonymous letter to the Department of Education.
On a later occasion the Claimant intervened in a fight in the playground and restrained a child. A complaint was made against her about this, and this led to disciplinary action, following which she received a written warning. The Claimant appealed against the warning and at an appeal hearing and she again made allegations against the other teacher who had inappropriate interactions with a pupil.
The Claimant was subject to disciplinary action for making malicious allegations, for lying to the headteacher in their discussions and for failing to protect children, and she was dismissed for making a false allegation and lying during the appeal hearing.
The initial claim did not immediately come to the employers' attention. The claim was sent to the employer with notice of a Preliminary Hearing to take place, which by the time the employer had opened the letter from the Tribunal, this date had already passed. This was because the Board's policy at the time was that letters addressed to the Board were only opened at Board Meetings (which was after the date of the hearing).
The Claimant informed the Tribunal that she wished to "add a claim of a 'detriment to whistleblowing' to my original claim of sexual and/or racial discrimination". The Claimant later withdrew her claim for race discrimination. The ET responded to this allowing the whistleblowing claim to be added onto the existing claims.
The amendment permitted by the Tribunal proved to be of significant importance in the decision making process, because the whistleblowing detriment claim was the only part of the claim which succeeded. The claims for unfair dismissal and sex discrimination were dismissed because they were out of time, and the race discrimination claim had already been abandoned by the Claimant.
The EAT considered that even making allowance for the fact that the claim form was completed without the help of a lawyer, the claim form did not disclose any whistleblowing detriment claim. The EAT judge disagreed with the view of the Judge at the original Tribunal, that there was an "existing whistleblowing (victimisation) complaint" to which the amendment would add "further allegations". Instead the EAT took the view that the amendment added a new cause of action. A new claim based on that cause of action would have been out of time at the date of the Tribunal's order. The new cause of action was the only one which would succeed at the further hearing.
Therefore the EAT concluded that the decision to allow the amendment was an error of law. It cannot be said that the application to amend was bound either to succeed or to fail, and the application has therefore been remitted to the ET.
The importance of the school's policy is a crucial point of this case. The policy in this particular case was highly scrutinised by the Employment Tribunal. Although the employer was the Board of Governors at a school, the principle still remains to all employers that the importance of employers policies should not be overlooked.
Unfortunately in this case the claim did not immediately come to the employers' attention. The letter was sent under cover of a letter addressed to the Board of Governors and marked "private and confidential". It seems that meetings of the Board of Governors take place quarterly. The Board has stated that its policy at the time was that letters addressed to the Board were only opened at Board Meetings.
The Board's policy in this case was considered extraordinary and impractical. As this case shows, correspondence may be important and urgent. Deliberately not opening letters for several weeks or even months is likely to have a negative effect/outcome. Fortunately the policy has now been changed as a result of this.
This can be extremely important as seen by this case, therefore we stress the importance of having a policy and procedure in place that allows for correspondence to be opened frequently in a timely manner, and ensure that a system is in place to eliminate the possibility of this type of situation happening to other employers in future.
It has also been the case where Tribunal Correspondence is simply ignored, which also causes significant issues in the event that an important deadline or scheduled hearing is missed. It is often the case that the Tribunals will still go ahead with the hearing in the absence of the other party, resulting in the claim being decided in the absence of the employer and therefore such correspondence is not to be ignored.
Employer's should also ensure they have a procedure in place to ensure that any correspondence is dealt with in a timely manner for any periods the employer is closed, for instance over Christmas. Additionally procedures should be put in place to ensure that this takes place at all sites, whilst on most occasions claims are likely to come to a head office, that is not always the case.
For more information contact Ella Dudley in our Employment & HR department via email or phone on 0333 207 1160. Alternatively send any question through to Forbes Solicitors via our online Contact Form.