Barnett v Acorn Care And Education Ltd & Anor (Victimisation Discrimination : Protected disclosure) [2017] UKEAT 0009_17

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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Barnett v Acorn Care And Education Ltd & Anor (Victimisation Discrimination : Protected disclosure) [2017] UKEAT 0009_17_0405 (04 May 2017) URL: http://www.bailii.org/uk/cases/UKEAT/2017/0009_17_0405.html Cite as: [2017] UKEAT 9_17_405, [2017] UKEAT 0009_17_0405

THE HONOURABLE MRS JUSTICE SLADE DBE

1. Mr Barnett (“the Claimant”) appeals from the dismissal of his claims of subjection to detriments for having made protected disclosures and unfair constructive dismissal for having made protected disclosures by a Judgment of an Employment Tribunal, Employment Judge Jones and members (“the ET”), sent to the parties on 7 April 2016. Following a Rule 3(10) Hearing, the following grounds of appeal 1, 2, 3, 9, 12, 13 and 14 proceeded to a Full Hearing.

2. At a Preliminary Telephone Hearing on 28 September 2015, Employment Judge Davies identified the issues to be determined at the Full Hearing before the ET. References in this Judgment to numbered Issues are to those identified by Employment Judge Davies. The ET1 had been presented on 9 May 2015. The only alleged detriment which was within time was said to have taken place on 27 February 2015. The Claimant sought to rely on earlier acts as detriments giving rise to claims under Employment Rights Act 1996 (“ERA”) section 47B on the basis that they were part of a series of acts within the meaning of section 48(3)(a), the last of which took place on 27 February 2015. At the hearing of this appeal the Claimant opened his oral submissions by recognising that ground 13 of the Notice of Appeal, which was concerned with the decision of the ET on the alleged detriment of 27 February 2015, was determinative. If the appeal on ground 13 succeeded, the other grounds would come into play. If ground 13 failed, all the other claims will have been presented out of time and would also fail.

3. The Claimant commenced his employment on 18 March 2013 and resigned on 6 March 2015. He had an insufficient period of employment to bring a claim of ‘ordinary’ unfair dismissal. His claim was brought under the ERA section 103A on the basis that the reason or the principal reason for his constructive dismissal was that he had made a protected disclosure.

Outline Relevant Facts

4. The Claimant was employed at a school for students with serious emotional, social and behavioural difficulties. There were between 25 and 30 pupils and approximately 30 staff. The Claimant was engaged by the former proprietor on 18 March 2013 originally as a Teaching Assistant, later described as an Unqualified Teacher. In October 2013 the First Respondent purchased the school. Ms Edwards became Head Teacher in January 2014. There were differences between the Claimant and Ms Edwards about the way in which students could be restrained in the event that serious physical assaults by students on staff or others occurred. The Claimant said that under the previous owners, training in dealing with these incidents had been given under the Team Teach programme. That guidance or policy under the programme meant that staff could restrain students who were on the ground.

5. In March 2014 a student assaulted the Claimant. He crawled into a class with a piece of broken glass and held it to the Claimant’s throat. He had threatened a fellow student the previous day. In March the Head Teacher discussed restraint techniques. Ms Edwards informed staff that if a student and staff member fell to the ground the staff member should not continue to restrain the pupil on the ground. The Claimant said that this instruction was contrary to previous policy and training. Difficulties between the Head Teacher and the Claimant continued. In particular, the Claimant refused to go on two outings with students that he considered inadequately arranged, and safety, he considered, would be compromised. These refusals gave rise to disciplinary charges.

6. The ET stated at paragraph 30 that an outdoor education lesson had been scheduled for 6 November 2014. The original plan was for four pupils to attend the session including pupils D and K. The Claimant and Ms Valentine were the tutors for that group. Both expressed concern about pupils D and K travelling together in the car to the activity as they had been separated because of the conduct of pupil K towards pupil D.

7. The plan for transport was modified so that student K would sit at the front of the vehicle with one teacher and pupil D in the third row at the rear of the seven seater vehicle with the Claimant. The Claimant remained dissatisfied and refused to accompany student D on the trip.

8. The Claimant was then instructed to accompany students Q and G to Pontefract on 6 November 2014. The Claimant refused to do so.

9. The Claimant, who was a bodybuilder, said that he had been given time off by the previous owners to go on bodybuilding training. He had requested time off for this purpose for one day in September 2014. This was refused. On 13, 14, 17 and 18 November 2014 he took time off without permission to engage in bodybuilding activities.

10. Following the taking of time off without permission, a disciplinary hearing was convened, at which the unauthorised time off incident was to be considered, as were the refusals to go with staff and students on the two outings. The disciplinary complaints against the Claimant were:

1. That you failed to follow reasonable requests and effectively made yourself unmanageable in doing so jeopardised the efficient running of the school. You refused to attend an offsite activity that constitutes part of the pupils’ curriculum for the Duke of Edinburgh award.

2. You failed to comply with a request to accompany a pupil to an alternative provision.

3. You absented yourself from school without permission, taking unauthorised time off to travel abroad during term time.

11. The Claimant recognised that taking time off without permission warranted some disciplinary action. The disciplinary hearing was conducted by Mrs Rhodes, Assistant Director of the First Respondent. The ET held:

“42. At the commencement of the disciplinary hearing on 16^th December 2014 the claimant presented Mrs Rhodes with a written grievance. It alleged that the disciplinary process was biased and unfair, and disregarded the first respondent’s disciplinary procedure and the ACAS Code. It suggested the claimant had been the target of bullying and harassment by management, in particular the head teacher, as a consequence of him raising concerns privately and publicly about safeguarding practices in the school and his right to blow the whistle. He suggested management and personnel involved in the whole disciplinary process might have a conflict of interest. He said that the actions taken against him stemmed from the head teacher’s malicious motives. He said he had strong evidence to demonstrate that management had been selective and that potential witnesses feared becoming the victims of bullying and harassment in supporting him. He also suggested that evidence had been falsified. He asked Mrs Rhodes to adjourn the disciplinary hearing so she could consider his grievance. Mrs Rhodes contacted Mr Edgar. He advised her that he had checked the first respondent’s grievance policy which indicated that once a disciplinary hearing had commenced the grievance would be investigated at the conclusion of the disciplinary proceedings, but if it had a bearing on the disciplinary proceedings it could be raised in them. He suggested Mrs Rhodes re-commence the disciplinary hearing and consider what the claimant said and whether what he said pertained to the disciplinary process.”

12. In the course of his submissions to the Employment Appeal Tribunal the Claimant drew attention to certain passages in the notes of the disciplinary hearing at which he was accompanied by his union representative. These passages included:

“JB’s [Mr Barnett’s] investigations show no evidence was collected to support his case.”

There was no mention of VV (Ms Valentine) being interviewed.

13. Mrs Rhodes found all three disciplinary allegations substantiated. A final written warning was imposed which would remain on the Claimant’s record for two years. The Claimant was told:

“… Any further failures on your behalf could result in further disciplinary action and potentially dismissal.”

Mrs Rhodes wrote that she had considered the points made in the Claimant’s grievance letter and during the hearing. She informed the Claimant that she felt the investigation and reports presented from other parties to be fair and genuine. She did not consider there was enough evidence to suggest that the Head Teacher had acted inappropriately in conducting the investigation.

14. The Claimant appealed the disciplinary decision. The appeal was heard on 12 February 2015 by Mr Richbell, Head of Human Resources of the First Respondent. The Claimant was accompanied by a union representative. The Claimant said that he thought Mrs Rhodes should have stopped the disciplinary process to look into the grievance which he had presented at the hearing. The notes of the appeal hearing show that Mr Richbell referred to the one page grievance letter headed “Final grievance letter presentable”. The Claimant informed Mr Richbell that he believed Mrs Rhodes acted in an unfair and biased manner because of a conflict of interest. The conflict of interest was alleged to arise because in defending himself the Claimant was criticising the institution by whom Mrs Rhodes was employed.

15. Mr Richbell notified the Claimant of the outcome of the appeal hearing by letter dated 27 February 2015. Mr Richbell summarised the salient point made by the Claimant during the appeal hearing. The summary included the following:

“2.1 Grievance

You contended that a grievance you raised at the commencement of your disciplinary hearing was not dealt with properly. You believed the hearing should have been halted until the Grievance had been properly investigated.

2.2 The Process

…

You did not believe that Tuesday Rhodes was the correct person to conduct the hearing as she worked for Acorn and I was not the correct person to hear the Appeal for the same reason.”

Mr Richbell concluded:

“3.1 Grievance

I believe that your formal Grievance having been brought up on the same day as the Disciplinary Hearing should be considered a separate item, under the Grievance Procedure.

… Upon reviewing this matter I am satisfied that points raised in your grievance were considered at your disciplinary hearing, so far as they pertained to your defence and/or mitigation, and therefore a fair and proper process was followed.

3.2 The Process

…

I believe a proper process was followed in terms of the disciplinary procedure, i.e. an investigation followed by a hearing. It is unfortunate that you do not believe any of the chosen representatives i.e. Investigating Officer Disciplinary Officer or indeed myself as Appeal Hearing Office were suitable.”

Mr Richbell dismissed the appeal stating:

“3.4 The Decision

…

I concur with Tuesday Rhodes’s view expressed in the warning letter to you that your combination of the actions shows a disregard for the processes and policies of the school and a failure to follow reasonable line management instructions which amounts to insubordination.”

16. The Claimant resigned on 6 March 2015.

The Relevant Statutory Provisions

17. Employment Rights Act 1996

“Section 43A. Meaning of “protected disclosures”

In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.

Section 43B. Disclosures qualifying for protection

(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following -

…

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

…

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

…

Section 47B. Protected disclosures

(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

…

Section 48. Complaints to employment tribunals

(1) An employee may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B.”

18. The issue in respect of which the Claimant asserts that the ET misdirected themselves is 5.4.12. Issue 5.4.12 was explained in the following terms:

“5.4. If the Claimant made a protected disclosure or disclosures, was he subjected to a detriment on the ground that he had done so in any of the following ways:

…

5.4.12. On or about 27 February 2015 by Mr Richbell failing to investigate allegations of misconduct through the disciplinary process [BC para 44].”

Note: The Tribunal will need to decide both whether the things alleged took place and, if so, whether they were done because the Claimant had made protected disclosures.”

BC refers to further particulars of breach of contract provided by the Claimant on 21 August 2015. In paragraph 44 of BC the Claimant wrote:

“27^th February 2015 Appeal Chair Brian Richbell agreeing to investigate and not investigating Misconduct throughout the Disciplinary process. Fundamentally breached the Duty of Mutual trust and confidence, this was an Actual Breach.”

It was common ground before the Employment Appeal Tribunal that the ‘misconduct’ referred to was the written grievance presented to Mrs Rhodes at the start of the disciplinary hearing.

19. The contention that Mr Richbell failed to investigate the grievance refers to the grievance in the document presented to Mrs Rhodes at the outset of the disciplinary hearing. The alleged protected disclosures in that grievance were identified in Issue 5.2.8 by reference to the further particulars of disclosure in paragraphs 41-45 as:

“5.2.8. In a written grievance dated 16 December 2014, which was presented at the outset of the disciplinary hearing, by stating that there had been non-compliance with the ACAS Code; that he had been bullied and harassed and that this would continue; that management had fabricated statements; that witnesses would be bullied and harassed for coming forward; and that Ms Tuesday Rhodes and the company had conflicts of interest that would prevent a fair disciplinary process [PD paras 41-45].”

20. The other alleged protected disclosure which relates to Issue 5.4.12 is that identified in Issue 5.2.9, whether the Claimant made a protected disclosure

“5.2.9. On 12 February 2015 at the appeal hearing by stating that Ms Rhodes had acted in an unfair and biased manner because of a conflict of interest between the company and the disciplinary process.”

Reference was made to paragraph 58 of the further particulars of disclosure in which the Claimant stated:

“I raised a concern in the Public Interest that, Tuesday Rhodes decision and actions were unfair and biased and a result of a conflict of interest between the company and the outcome of any investigation.”

The Judgment of the Employment Tribunal on Issue 5.4.12

21. The ET held at paragraph 45 that Mr Richbell considered the issues raised under the grievance insofar as they pertained to the disciplinary allegations. They noted that the Claimant informed Mr Richbell that he believed Mrs Rhodes had acted in an unfair and biased manner because of a conflict of interest.

22. At paragraph 64 the ET held that the Claimant’s allegations about handling of the disciplinary procedure could not be a protected disclosure as posited in Issue 5.2.8 as they were not in the public interest.

23. As for Issue 5.2.9, the ET held at paragraph 65 that no information had been disclosed upon which the Claimant could reasonably believe that Mrs Rhodes had allowed the financial interests of the Respondents to take precedence or influence her in any was whatsoever in the determination of the disciplinary allegations against the Claimant.

24. In paragraph 76 the ET directed themselves to consider

“76. … whether any protected disclosure contributed in a more than trivial way to any of the alleged detriments or was the reason or principal reason for any breach of contract and consequential resignation. It is a question of causation. …”

25. The Claimant agreed that he was absent from work for four days in November 2014 without permission. Further it was not disputed that the Claimant had refused to comply with an instruction to accompany student D on a trip on 6 November 2014. Further he then refused to accompany Q and G on a trip to Pontefract. These three actions were the basis of the three disciplinary charges considered by Mrs Rhodes on 16 December 2014 and on appeal by Mr Richbell on 12 February 2015.

26. At paragraph 78 the ET did not accept criticisms of the investigation carried out into the allegations. They noted that Ms Valentine had not provided a statement but statements had been taken from a number of staff. The ET held:

“78. … Ultimately, the essential facts were not in dispute: the claimant had taken leave in term time and refused to comply with the instructions of the Head Teacher. It did not require any greater investigation. The language used to attack the investigation and integrity of Ms Edwards in the claimant’s subsequent grievance was hyperbolic and unjustified. There is no question of it being unfair nor her recommending action because the claimant had raised his matters of concern.”

27. The ET considered Mrs Rhodes to be a convincing and believable witness. They had no hesitation in accepting that she found the allegations substantiated and imposed the disciplinary sanction because she believed the Claimant had acted inappropriately; not in raising issues of concern but in misconducting himself in the ways alleged. The ET held:

“80. Mrs Rhodes accepted she had not made it sufficiently clear how she was to handle the issues raised in the grievance, during the hearing itself. We had no doubt that they were not sidestepped as alleged by the claimant because they were disclosures which were protected. The admitted facts enabled Mrs Rhodes and Mr Richbell to deal with the disciplinary matters without delaying further. The grievance was not raised until the first day of the disciplinary hearing. To embark upon an extensive enquiry into the claimant’s many accusations was neither necessary nor appropriate, either under the ACAS Code of Practice or the respondent’s own policies. Both wrote to the claimant and referred to the whistleblowing and grievance procedures and suggested he pursued those in respect of any outstanding issue. This could hardly be said to be brushing matters under the carpet. The decision by both not to address all aspects of the grievance during their respective disciplinary hearings had nothing at all to do with any protected disclosure, but everything to do with pragmatically dealing with allegations, the substance of which was largely common ground.

81. We find therefore that the respondent has discharged the burden of proof under Section 48(2) of the ERA, in that the reasons for the alleged events categorised as detriments or factors amounting to a breach of contract, under paragraphs 5.4.6 to 5.4.12 of the preliminary hearing, had nothing whatsoever to do with any protected disclosure, or for that matter any of the claimant’s expressed concerns.”

Ground 13 of the Notice of Appeal

28. The Claimant contends that the ET misdirected themselves on Issue 5.4.12. He contends:

“There are no conclusions to address the Issue of a failure to investigate a complaint of Misconduct against Ms Rhodes. Tribunal has erred by instead drawing conclusions regarding Mr Richbell’s failure to investigate the original written Grievance [Para 80]. This was a separate Issue, which although part of the overall claims was not the Issue identified to be determined.”

29. The Claimant further contends that the Employment Tribunal gave inadequate reasons to determine Issue 5.4.12:

“Judgment (Para’s 45 & 80) found that, Mr Richbell was able to make a pragmatic decision, to not investigate issues that had no bearing on the disciplinary allegations until after the disciplinary process was complete.

Judgment erred by failing to make any findings of fact, as to what bearing the Misconduct complaint had on the disciplinary allegations. The complaint was based on the issue of whether or not the instructions were unreasonable, which was arguably one of the central issues of the disciplinary allegations.”

Discussion and Conclusion

30. The Claimant contended that the ET erred in failing to consider the issue of a failure to investigate a complaint of misconduct against Mrs Rhodes. The Claimant and Ms Quigley, counsel for the Respondents agreed that the reference in Issue 5.4.12 to failure by Mr Richbell to investigate allegations against Mrs Rhodes was of a failure to do so in the disciplinary process. The Claimant submitted that Mr Richbell should have investigated his grievances including those presented at the outset of the disciplinary hearing before Mrs Rhodes. The text of the statement he read to Mrs Rhodes included:

“I have strong reason to believe I have been a target of Bullying and Harassment by the Management and namely the Headteacher as a consequence of raising concerns privately with Management and publicly in staff meetings about Safeguarding practices in the school and eventually effectively exercising my right to “blow the Whistle”.”

31. The Claimant submitted to the Employment Appeal Tribunal that his concern about Mrs Rhodes was that she was biased and not impartial. She would want to uphold the decision of Ms Edwards who conducted the investigation which led to the complaints against him and the disciplinary hearing. The notes of the appeal meeting with Mr Richbell show that the Claimant said that he did not think that Ms Edwards was the right person to conduct the investigation. He had repeatedly told Ms Edwards that he was not complying with requests, including the instructions which gave rise to disciplinary charges 1 and 2, as they were unsafe. The Claimant told Mr Richbell that the class tutor, Ms Valentine, was saying the same thing about the outing, which gave rise to the first charge. Ms Valentine had not been interviewed by Ms Edwards. The Claimant also mentioned his difference of opinion with Ms Edwards about the need, in his view, for restraint of pupils on the floor, if necessary.

32. The Claimant complained to Mr Richbell that the bias and unfairness of Mrs Rhodes was shown by her decision that it was not necessary or relevant to look into his grievances before proceeding with the disciplinary hearing. She had been advised by Human Resources to listen and decide whether the grievance should be looked into. The Claimant told Mr Richbell that he thought this was not a proper procedure but understood that he had a chance to give his evidence and produce witnesses at a later date. The Claimant said that at the hearing before Mrs Rhodes he was stopped from asking questions as he was told this was not the right time. He assumed matters would be investigated further in the future and this did not happen.

33. The Claimant contended that the ET erred in holding at paragraph 80 that:

“80. … The admitted facts enabled Mrs Rhodes and Mr Richbell to deal with the disciplinary matters without delaying further. …”

The Claimant submitted that the relevant facts were not admitted. In paragraph 12 of his grounds of appeal the Claimant contended that his complaint about the failures of Mrs Rhodes and Mr Richbell to consider his grievance when dealing with the disciplinary charges against him failed to recognise that his concern:

“… was based on the issue of whether or not the instructions were unreasonable, which was arguably one of the central issues of the disciplinary allegations.”

34. The Claimant contended that all these matters showed that that at the appeal hearing on 27 February 2015, Mr Richbell failed to investigate his grievance which was presented at the outset of the disciplinary hearing before Mrs Rhodes, because of protected disclosures made to him.

35. The Claimant contended that the ET failed to give adequate reasons for their decision on Issue 5.4.12 because they proceeded on that basis yet made no finding that Mr Richbell did not know of his protected disclosures. The Claimant drew attention to paragraph 3.3 of Mr Richbell’s letter of 27 February 2015 giving the outcome of the appeal hearing on 12 February 2015. Mr Richbell referred to the importance of safeguarding. The Claimant had raised such issues in the appeal hearing. He contended that therefore Mr Richbell knew that he had made protected disclosures as the ET should have found.

36. Ms Quigley, counsel for the Respondents, submitted that it was no part of the ET’s role in deciding Issue 5.4.12 to determine whether the instructions given to the Claimant, which formed the basis of disciplinary charges 1 and 2, were reasonable.

37. Ms Quigley submitted that on the findings of the ET there was no qualifying disclosure in relation to the closing stages of the disciplinary process, the hearing before Mrs Rhodes. The ET held in paragraph 64 in relation to the issue on alleged disclosure in 5.2.8:

“64. … Insofar as the claimant’s allegations related to the handling of the disciplinary procedures, this was not a protected disclosure because it was not in the public interest. …”

There is no appeal from the finding of the ET on Issue 5.2.8.

38. As for the alleged protected disclosure referred to in Issue 5.2.9, the ET held in paragraph 65:

“65. … Although the claimant had expressed his opinion that Ms Rhodes had acted in an unfair and biased manner because of a conflict of interest, there was no information disclosed which tended to show that there was no material upon which the claimant could reasonably believe that Mrs Rhodes had allowed the financial interests of the company to take precedence, or influence her in any way whatsoever in the determination of the disciplinary actions against him.”

Mrs Quigley pointed out that the only allegation against Mrs Rhodes was bias because of a conflict of interest between her loyalty to the company and conducting the disciplinary process impartially when the issue was whether instructions by the Headteacher could be disobeyed with impunity.

39. Counsel submitted that paragraph 44 of the Claimant’s Further and Better Particulars of Detriment, upon which 5.4.12 is based, identifies the issue as Mr Richbell not investigating the grievance, that presented to Ms Rhodes, through the disciplinary process. The complaint to which Issue 5.4.12 relates is not whether the instructions which the Claimant disobeyed and upon which disciplinary complaints 1 and 2 were based, were reasonable or not.

40. Ms Quigley finally referred to the Respondents’ Answer in the Employment Appeal Tribunal in which it was contended that no error of law arises but if it did, such error had no bearing on the outcome.

41. The Claimant contended that the ET failed to make findings of a failure by Mr Richbell to investigate a complaint of misconduct against Mrs Rhodes. At paragraph 45 the ET found that the Claimant informed Mr Richbell that he believed Mrs Rhodes had acted in an unfair and biased manner because of a conflict of interest. At paragraph 46 they found that Mr Richbell set out his reasons for dismissing the appeal in his letter of 27 February 2015.

42. In the letter of 27 February 2015 Mr Richbell set out the criticisms made by the Claimant of Mrs Rhodes’ conduct of the disciplinary hearing. These were that the Claimant:

· believed the disciplinary hearing should have been halted until the grievance had been properly investigated;

· was prevented from asking questions of the disciplinary investigating officer at the disciplinary hearing;

· assumed further investigations would take place;

· did not believe that Mrs Rhodes was the correct person to conduct the hearing as she worked for the Respondents.

43. Mr Richbell set out the reasons why he considered that it was appropriate for Mrs Rhodes to have conducted the disciplinary hearing. He pointed out that this was an internal procedure and observed:

“… I am unsure from your comments who in the organisation if anyone would satisfy your criteria.”

44. Mr Richbell wrote that he had reviewed the Claimant’s complaint that Mrs Rhodes should have considered his grievance as part of the disciplinary process. He was satisfied that the points raised in the Claimant’s grievance

“… were considered at your disciplinary hearing, so far as they pertained to your defence and/or mitigation, and therefore a fair and proper process was followed.”

45. The letter of 27 February 2015 to the Claimant from Mr Richbell was evidence before the ET that he had considered the Claimant’s complaint about the conduct of the disciplinary hearing by Mrs Rhodes. They held that it was neither necessary nor proportionate for Mr Richbell or Mrs Rhodes to delay consideration of the disciplinary matters because of the grievance presented to Mrs Rhodes. Although not expressly referred to, on a fair reading of the decision, the same reasoning applies to Mr Richbell continuing to hear the appeal after the Claimant made complaints about the conduct of the disciplinary hearing by Mrs Rhodes and about her conducting the hearing. The ET concluded that the decision by Mr Richbell not to address all aspects of the Claimant’s grievance had nothing at all to do with any protected disclosure. This conclusion is not undermined by any absence of express reference to a complaint against Mrs Rhodes. The evidence before the ET of the letter of 27 February 2015 set out the reasons why Mr Richbell decided to continue hearing the appeal and not to delay pending any grievance hearing. As found by the ET and stated in the letter, Mr Richbell informed the Claimant that he could pursue any outstanding grievances through the grievance procedure.

46. The submission by the Claimant that the ET erred in holding that the essential facts were not in dispute or were admitted is not sustainable. These undisputed facts, summarised in paragraph 78 were that

“78. … the claimant had taken leave in term time and refused to comply with two instructions of the Head Teacher. …”

These were the disciplinary charges which he faced.

47. The Claimant considered the two instructions of the Head Teacher to be unreasonable and at least in the case of one originally given, unsafe. These arrangements had been modified after his objections. The ET observed at paragraph 71 that the Claimant had advanced no convincing evidence or argument that Ms Edwards failed in responsibly discharging her duties in regard to the instructions she gave to the Claimant which he refused. They observed that it followed that her instructions were reasonable. However their observation was not material to their decision. The ET directed themselves correctly at paragraph 76:

“76. It is of course not our view of the disciplinary issues, but that of those charged with them which matters in determining the issues in this case. That is because we have to determine whether any protected disclosure contributed in a more than trivial way to any of the alleged detriments or was the reason or principal reason for any breach of contract and consequential resignation. It is a question of causation. …”

48. In order to succeed in a claim under ERA section 47B, the detriment alleged must have been done on the ground that the Claimant has made a protected disclosure. On such a complaint, by reason of section 48(2), it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

49. The Claimant contended that the ET erred in failing to make a finding that the decision of Mr Richbell not to investigate his grievance was not influenced, or materially influenced by a protected disclosure. The ET made a clear finding that the admitted facts enabled Mrs Rhodes and Mr Richbell to deal with the disciplinary matters without delaying further. They found that both Mrs Rhodes and Mr Richbell wrote to the Claimant suggesting that he pursue grievances which remained outstanding under the Respondent’s grievance procedure. The ET found at paragraph 80 that the decision to deal with the disciplinary matters without delay

“80. … had nothing at all to do with any protected disclosure, but everything to do with pragmatically dealing with allegations, the substance of which was largely common ground.”

This finding of fact fully supported the conclusion at paragraph 81:

“81. We find therefore that the respondent has discharged the burden of proof under Section 48(2) of the ERA, in that the reasons for the alleged events categorised as detriments or factors amounting to a breach of contract, under paragraphs 5.4.6 to 5.4.12 of the preliminary hearing, had nothing whatsoever to do with any protected disclosure, or for that matter any of the claimant’s expressed concerns.”

50. The Claimant may have felt that the instructions he disobeyed were unreasonable, that his grievances should have been heard before or at the disciplinary hearings, that Mrs Rhodes conducted the hearing before her in a way in which he considered unfair and that she should not have conducted the hearing. However the ET found that the Respondent had established that the reason Mrs Rhodes and Mr Richbell did not investigate the allegations in the Claimant’s grievances including that against Mrs Rhodes raised at the appeal hearing, had nothing to do with any protected disclosure. The ET correctly directed themselves and did not err in their determination of Issue 5.4.12.

51. The Claimant, who conducted this appeal thoroughly and courteously, started his submissions by rightly acknowledging that if he did not succeed in his challenge to the decision of the ET on Issue 5.4.12, the only alleged detriment presented in time, his appeal must fail. The appeal in ground 13 from the Decision of the ET on Issue 5.4.12 is dismissed. Accordingly the entire appeal from the Decision of the ET fails and is dismissed.

United Kingdom Employment Appeal Tribunal