12 November, 2020
The Board of Governors of IQRA Community Primary School (Respondent)
Ms F Mansur (Claimant)
The Claimant was a Teaching Assistant at the school. The Claimant's initial claim was one of direct discrimination on grounds of sex and race, and unfair dismissal.
There were several incidents that took place during the Claimant's 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 same teacher who she alleged had inappropriate interactions with a pupil previously.
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 employer's policy at the time was that letters addressed to the Board of Governors 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 EJ 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 EJ at the ET, 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 EJ's order and 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 as there was no evidence that the Judge had properly considered the principles established in the case of Selkent Bus Co v Moore and the application has therefore been remitted to the ET for those principles to be properly considered.
The importance of the school's policy for opening correspondence is a crucial point of this case. The policy in this particular case was described as "reckless" by the Judge as the claim did not immediately come to the employers' attention because of that policy and affected the employer's ability to take part in the case and its ability defend itself properly. The letter was sent under cover of a letter addressed to the Board of Governors and marked "private and confidential". The Board 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 cause problems and in the case of Tribunal correspondence can have potentially disastrous consequences. Fortunately the Board's policy has now been changed as a result of this.
As periods of school closure coincide with periods of staff annual leave, it is often the case that schools fail to open important correspondence received during these holidays, particularly the summer break, where there are little or no staff members at the school premises. As seen by this case, not opening important correspondence can have significant consequences therefore we stress the importance of having a 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 schools in future.
If a deadline for a response to a Tribunal claim is missed but a response is filed late, a Tribunal is likely to be unsympathetic unless there is a very good reason for the delay. Missed or late responses to claims often mean (as in this case) that the party who has breached the Tribunal's order can only take a limited part in proceedings which may result in an adverse result, even if that party's case is a strong one.