Discrimination – a case study in the education sector

Our client, a multi-academy trust, faced a legal challenge involving a claimant who alleged direct age discrimination and constructive unfair dismissal.

The claim

The claimant had been employed by one of the schools within the Trust as the co-ordinator for the school’s Special Educational Needs and Disability (SEND) provision, otherwise known as a SENDCO. The provision underwent a safeguarding audit which highlighted major failings of a safeguarding nature. Due to the severity of the safeguarding concerns and the influx of parental complaints, the headteacher felt she needed to take urgent action and chose not to subject the claimant to a performance management process. Instead, the headteacher offered to create a new role for the claimant, which the claimant accepted. The claimant was completing a handover to the new SENDCO when the headteacher informed the board of trustees during a staffing sub-committee meeting about her decision to create a new role for the claimant and the claimant’s acceptance of that role. The board then insisted that the claimant should not be rewarded for poor performance and she should, instead, return to a teaching role. Although this was a role that the claimant had not performed for over ten years. The claimant was informed of the decision and went on sick leave for a period of 6 months before resigning and claiming constructive unfair dismissal.

The age discrimination claim consisted of an allegation, which was denied, that a governor had asked the claimant when she would be retiring, almost a year before she resigned and claimed constructive unfair dismissal. The discrimination claim was therefore brought well over a year after the alleged act of age discrimination and was therefore out of time (this was a claim that should have been made within 3 months of the alleged discriminatory act complained of).

The employment tribunal process

During the Christmas period, a copy of the claim had been sent by the tribunal to the school where the claimant had worked. The Notice of Claim outlined the deadline to respond to the claim was 28 days from the date of the tribunal’s letter. For reasons unknown, the letter did not arrive at the school until after the deadline to respond had passed. There was then an administrative failing within the school and the claim had not been escalated to the central offices for a further couple of weeks. By the time it reached our desks, the deadline to respond had passed by over a month. This meant that any defence submitted by our client would be rejected, unless accompanied by an application for an extension of time, and the tribunal had the power to issue a default judgement against our client.

Our client was a member of the DfE’s Risk Protection Arrangement (‘RPA’). We instructed our client to immediately submit a claim to RPA which resulted in indemnity being in place from the very start of our instruction and saved the Trust the cost of our fees in defending the claim, except for the excess. We submitted an urgent application to the tribunal to request an extension of time for our client to submit their defence to the claim. In the meantime, we worked to get the defence submitted at the earliest opportunity.

There were several hurdles to overcome in preparing the defence including the fact that the headteacher had failed to keep any meeting notes and had conducted the ‘process’ informally through verbal discussions. The headteacher had also left the school before the claim was lodged and therefore was not willing to assist the Trust in defending the claim. This limited the Trust’s ability to challenge the factual allegations contained in the claim.

A key component of the defence was that, even if there had been a fundamental breach of the contract, by waiting over 6 months’ to resign, all the while accepting full sick pay from the school and submitting fit notes (acts which were consistent only with continued performance of the contract, rather than bringing it to an end by resigning). The claimant had waived the alleged breach and affirmed the contract. In relation to the discrimination claim, the claim had been brought well out of time and the tribunal therefore did not have jurisdiction to hear the claim.

Our application was successful and our client’s defence was accepted by the tribunal – the case was back on track.

Just an hour before the case management preliminary hearing was due to begin, the claimant’s representative submitted an application to postpone the hearing. The application was, of course, not determined prior to the preliminary hearing and the claimant/her representative failed to attend.

Following the preliminary hearing, a legal costs warning letter was sent to the claimant/her representative outlining our intention to make an application for our client’s legal costs to be paid by the Claimant based on her unreasonable conduct during the proceedings and the claims having no reasonable prospect of success. Shortly thereafter, the claimant withdrew her claims and the case was dismissed by the tribunal.

The takeaways

Whilst we managed to achieve a successful outcome for our client, there were several learning lessons to take from this case:

1. Training – Education institutions should ensure that individuals in management positions have received effective training on the handling of internal processes and understand the importance of adhering to internal procedures. If there are exceptional circumstances and it is necessary to step outside of the those procedures, it is advisable to seek legal advice before taking action. In addition, education institutions should ensure that individuals engaged by the school, whether an employee or a governor, have undergone effective equality and diversity law training.
2. Documentation and evidence – Education institutions should ensure that individuals in management positions understand the importance of maintaining detailed written records. These records can be fundamental to the prospects of success in defending against employment tribunal claims, particularly if a defence relies on an individual who has since left the Trust. Even for an informal discussion, it is usually advisable to follow-up with an email to the individual confirming the matters discussed. This mitigates the risk of a factual dispute regarding the content of meetings later on.
3. Internal System for Receipt of Claims – Education institutions should ensure that they have an internal system for escalating receipt of an employment tribunal claim, even outside of term-time. It is extremely important that the individuals who action the incoming post are aware of the necessity to escalate the claim to the central offices at the earliest opportunity.
4. Notify RPA/insurers – Upon receipt of the notice of a claim, education institutions should immediately notify their insurers or the Risk Protection Arrangement (‘RPA’), if applicable. For most policies, cover will not begin until a claim has been made to the insurer.
5. Instruct our employment team to defend your Trust against tribunal claims.

If you found this this case-study informative and want to learn more, you can read our practical guide on defending discrimination claims in the Education sector. If you have any queries or require assistance in defending an employment tribunal claim, please contact a member of our employment team.