Successfully defending an unfair dismissal claim against an Academy Trust

Our Employment team recently assisted an Academy Trust client (the Trust) in defending a claim for unfair dismissal by a teacher dismissed for gross misconduct.  By helping the Trust to robustly respond to the claim, the Claimant was ultimately persuaded to withdraw her claim without any compensation being paid to her.

The claim

The employee concerned was a teacher who threw food at a special needs pupil in response to the pupil throwing food during lunch in the canteen. Following an investigation into the events, the Claimant was dismissed with immediate effect on the basis that their behaviour amounted to gross misconduct.

The Claimant’s behaviour was referred to the Local Authority Designated Officer (LADO). This resulted in the Claimant being barred from working with children and vulnerable adults by the Disclosure and Barring Service (DBS).

The Claimant had been invited to a disciplinary hearing but did not attend or not put forward a statement. So the hearing proceeded without the Claimant and the gross misconduct findings were upheld by the Trust.

The Claimant appealed the dismissal decision. The gross misconduct findings were upheld by the Trust because the dismissal was proportionate to the severity of the allegations. The Claimant brought a claim against the Trust for unfair dismissal citing that the investigation was flawed and the dismissal was too harsh based on the circumstances.

Responding to a claim

Employment Tribunals usually send a notice of claim to the employer directly. A respondent has 28 days from the date of the notice of claim (not the date on which it is received) to file a response i.e. defend the claim.

Due to a Tribunal delay, postal delay and our client’s administrative failings, our client did not notify us about the claim until over a week after the deadline had lapsed. This meant the Trust missed the deadline to submit their response and was precluded from defending the claim. In the usual circumstances, a Tribunal would have rejected any response that was submitted after the deadline and would have had to issue a default judgement against our client i.e. our client would have lost their right to defend the claim.

It is important to ensure that procedures are in place to ensure that any formal correspondence, such as a notice of claim, is directed to the correct person within the organisation, in a timely manner. A response is vital in setting out a respondent’s full side of the story and providing further details to disprove a claim. For further guidance on how to respond to an unfair dismissal claim, you can find out more here.

Our role

We submitted an urgent application to the Tribunal to request an extension of time to permit the Trust’s late submission of the response.  Fortunately our application was successful and the Trust was allowed to defend the claim.

We reviewed the Trust’s evidence including CCTV footage and witness statements and submitted the response, robustly defending the claim. This included our assessment of  the following key points to help refute the Claimant’s case:

• Fair process – The Trust followed a fair and reasonable disciplinary procedure and the reasoning for the dismissal was fair and proportionate based on the circumstances and despite the mitigating factors put forward by the Claimant
• Time barred – We alleged that the Claimant’s claim was time-barred because the claim was not issued to the Tribunal within the time limit (3 months less 1 day from the termination date). We put forward our client’s timeline to confirm the actual termination date
• Rejection of remedies sought – Together with a claim for compensation (capped at the statutory unfair dismissal amount) the Claimant also sought for their name to be cleared from the children’s barred list so that they were no longer prohibited from working with children and vulnerable adults. We argued that the Tribunal did not have the jurisdiction to overturn DBS decisions and contended that any compensation awarded should be reduced by 100%, to reflect the Claimant’s contributory and blameworthy conduct.

We applied for a preliminary hearing to strike out the claim. The Claimant then failed to comply with the case management orders. We wrote to the Claimant to alert them of their non-compliance and to warn them that we would be submitting an application for an unless order (i.e. to strike out the claim) if they did not comply within a certain timeframe.  Alternatively we gave her the choice of withdrawing her claim and in return our client would not pursue her for costs incurred so far in responding to the claim.

As a result, the Claimant withdrew their claim.  Our client obtained a judgement dismissing the claim. The claim was concluded at a very early stage. Our client was not required to pay any settlement sum to the Claimant and was pleased with the result.

Considerations for employers

Even in instances of obvious gross misconduct – employers are still vulnerable to claims in the Employment Tribunal.  A fair process must still be followed before a decision is taken to dismiss.

Whilst our client’s outcome was successful – it is important to remember:

• If an employer is presented with an unfair dismissal claim, having evidence and written records proving compliance with any internal policies, will put employers in good stead to set out their version of events and defend a claim, as was the case here
• On receipt of a notice of claim, your organisation should notify its insurers or the Risk Protection Arrangement (RPA) to explore if the costs of any legal dispute are covered
• By taking a robust stance, Claimants with low merit claims can be persuaded to think again about pursuing their claim further.

Our employment team is experienced in defending unfair dismissal claims. Please contact us if you require assistance in dealing with potential dismissals or responding to an unfair dismissal claim.