| SPOTLIGHT |
Jo Moseley considers the lessons schools and colleges can learn from a recent tribunal decision which involved an autistic teacher who was dismissed after making a number of complaints about various aspects of his employment over a three year period.
Facts
In M Wright v Cardinal Newman Catholic School Mr Wright was a long standing employee and head of mathematics at the school. He had a number of disabilities, including autism and atrial fibrillation.
He believed that he had been victimised as a result of giving evidence in support of a former colleague who had brought an employment claim about the school. He raised a grievance, alleging that the head teacher had deliberately attempted to undermine him and complained that the school had not undertaken a risk assessment to consider the impact of his heart condition despite it being recommended by an OH. The school rejected his assertions against the head, but upheld his complaint about the risk assessment. He appealed. Whilst that process was ongoing, two things occurred. Mr Wright submitted a data subject request (DSAR) and was contacted by his union rep who said that the school wanted to know if he wished to leave in exchange for a financial settlement.
Mr Wright lodged an employment tribunal claim alleging that he had been victimised. He also met with the chair of governors who made him a generous offer to leave the school and became frustrated and angry which he didn't accept. The school then suspended Mr Wright, pending a disciplinary investigation into whether he could continue to work at the school due to, what it described as ‘a an irretrievable break down’ in his relationship with the head and one other member of staff.
At this point Mr Wright tried to resolve matters in an attempt to keep his job. He withdrew is DSAR and said that he would drop his complaints against the head. Around the same time he was informed that the school had rejected the appeal against his grievance and had appointed an investigator to consider whether the relationship had been damaged beyond repair.
Mr Wright responded by raising a second grievance. He said that the school hadn't considered his health problems and was in breach of its duty of care towards him. Shortly afterwards, he was diagnosed with an Autistic Spectrum Condition (Asperger's). The school rejected his grievance but invited him to mediation and said it would postpone the disciplinary process. The school also instructed experts to consider what adjustments needed to be made to explore him being able to return to work as head of maths. A few weeks later, the school, at the direction of the head, suggested that Mr Wright return to a completely different role which was, effectively, a demotion. It suggested that this was a reasonable adjustment and would remain in place until he was ready to return to his normal role.
Mr Wright rejected that offer, raised a third grievance and appealed against the decision to reject his second grievance. The school responded by giving him an ultimatum: accept the offer or be dismissed. He responded by saying that he accepted the proposal ‘under protest’ and expressed his desire to return to his original position. A number of written exchanges took place about what Mr Wright meant by working under protest and eventually, the school concluded that it could not reach a mutually acceptable resolution and terminated his employment on notice.
Mr Wright submitted a claim to tribunal claiming unfair dismissal, victimisation, discrimination arising from disability as failure to make reasonable adjustments.
Tribunal decision
The tribunal found that Mr Wright had been unfairly dismissed. He had refused to accept a demotion. That was an act of victimisation and fell outside of the band of reasonable responses.
To succeed with his claim in respect of discrimination arising from disability, the tribunal had to decide whether Mr Wrights repeated grievances, DSARs and the manner in which he went about these, resulted in his dismissal and whether they arose in consequence of his autism and/or other disabilities.
Mr Wright provided an impact statement to describe the effect of his disability on his behaviour. He said this caused:
The tribunal looked carefully at the evidence and concluded that the behaviours which led ultimately to him being dismissed, arose out of his autism.
The school argued that it was justified in dismissing Mr Wright. It said that it had a legitimate aim being ‘an effective and capable subject lead of maths who has a functioning and not damaged relationship with the head teacher and senior leadership team’. Whilst that was a legitimate aim, the defence failed because the school had not acted proportionately. There was no evidence that Mr Wright couldn't do his job and a more proportionate response would have been managing his performance via a formal process, to assess whether the relationship could be improved. Ultimately, the tribunal was not satisfied that the relationship between Mr Wright and the school had been damaged beyond repair.
The tribunal rejected Mr Wright's claim for reasonable adjustments on the basis that he had not returned to school. The school had shown that it was amenable to making adjustments and had discussed them with Mr Wright during his suspension.
The parties reached agreement about the amount of compensation Mr Wright should receive. He agreed to accept £850,000 made up as follows:
Learning points for other schools and colleges
Dealing with an employee who repeatedly raises grievances must be up there as one of the most frustrating jobs HR advisers and the senior leaders have to deal with. Resolving grievances is time consuming and, when you add in the emotional intensity that often accompanies the complaint, you can see why frustration sets in and trust and confidence becomes frayed - sometimes beyond repair.
But, particularly when your patience has run out, you need to take a step back and look at the matter dispationately before making any decisions. Good legal advice will help with this.
In this case the school made a number of mistakes:
1. It didn't make any allowances for Mr Wright's neurodiversity. Senior leaders must make an effort to understand how autism may impact behaviour and know when to ask for help - preferably at an early stage to avoid problems escalating. The National Autistic Society provides useful resources for employers on how to manage neurodiverse staff and the sorts of adjustments that may be reasonable to make. Obtaining medical and/or OH evidence may also be necessary.
2. It made a financial offer to exit him at a relatively early stage in the process and those conversations were admitted into evidence. There are only two ways to restrict these sorts of offers from being disclosed. The first if where the offer is made as part of a protected conversation. However, these can't be used where there are allegations of discrimination. The second is where an offer is made on a without prejudice basis.
It's never a good look to threaten an employee in the way the school did here. Take this demotion or you'll be dismissed may be what you'd like to say, but unless you have a valid and justifiable reason for demoting someone, avoid the temptation unless you're happy to explain your decision making to a tribunal panel and pick up the financial cost.
3. There was a written record of the head teacher telling the decision makers that Mr Wright was a problem and had to leave: ‘Over the last three years Marcus has taken up a disproportionately large amount of my time and the time of other school leaders and governors. His repeated resort to subject access requests, grievances and the continual, largely unspecified, allegations of bullying has reduced my capacity and the capacity of other members of the senior leadership team to address the wider needs of the school and its students.’
This fatally undermined the school's stated reason for dismissing him.
Jo Moseley is Lead Practice Development Lawyer at Irwin Mitchell.
