The employment tribunal determined that a teacher with autism, who had repeatedly complained and raised grievances was victimized and discriminated by a comprehensive Hove school. Rob Moss examines in depth how the teacher’s persistent pursuit of his grievances, which was a behavior related to autism, led to his dismissal.
A tribunal of employment found that Cardinal Newman Catholic School’s decision to dismiss Marcus Wright as its head of mathematics fell “significantly” outside the range of reasonable responses. The reason for dismissal was victimisation.
Wright started working at this state-funded, 2,500 pupil school in 2005. Wright “heavily supported” Humber in 2014 when he unsuccessfully applied three times for a permanent position. Wright’s testimony in support of Humber led to the successful prosecution of a victimisation claim by Humber .
Wright was investigated for misconduct in December 2014 for failing to attend an external event, and leaving school too early. He said that he was ill on both occasions and a note from his doctor confirmed this. A OH report suggested a stress assessment.
Wright was disciplined in March 2015 for lying to his manager about attending the event and for talking to a co-worker in a “disrespectful, inappropriate and disrespectful manner”.
Big black cross
Wright discovered a document, a three page extract from the handbook of his school in April 2016. His name was written on this page with a big black cross next to it.
In his grievance, he claimed that the document was “a deliberate and sustained attempt to undermine my reputation, as a result of my support for a colleague in a tribunal which has adversely affected my health”. Wright’s grievance was denied, so he appealed. Months later his appeal was dismissed.
In February 2017, the vice-chair of governors of the school had appointed an outside HR consultant to investigate Wright’s bullying allegations.
Wright also requested an assessment for autism at the same time because others had suggested that he was autistic, both inside and outside of work. He wanted to know if others’ opinions of him were accurate and if this was affecting his mental health.
He had four meetings in the spring with his HR consultant, to discuss his complaints of bullying and whether they related to supporting Humber’s case at tribunal.
He also filed a subject-access request to determine if senior colleagues had taken any particular stances or attitudes towards him due to his support for Humber.
The union representative asked the claimant in June if he was interested in negotiating with the school for the termination of his employment and a financial settlement.
Wright then received a report from the HR consultant, which was deemed “not very useful” by the tribunal because it didn’t reach any conclusions and did not resolve any issues.
Allegations that are repeated
Wright was asked by Tim Williamson, the chair of the governors, to meet him on 20 June. The tribunal found that James Kilmartin had told Tim Williamson in no uncertain terms that the claimant was to leave the school, and that he would not be working with him anymore.
Kilmartin summarized his attitude towards Wright in a later statement that he made during a disciplinary investigation. He said: “Over these last three years, Marcus has taken a disproportionately high amount of time from me and other school leaders.
“His repeated use of subject access requests, grievances, and the continuous, mostly unspecified, accusations of bullying have reduced my and other members of senior leadership team’s capacity to address the needs of the entire school and its pupils.”
The tribunal found that Wright’s continued complaints and monopolization of senior leaders’ time was not the reason for the deterioration of the relationship.
Kilmartin told the tribunal that he expected Wright to accept the settlement offer at the meeting, “given the sum offered” in the agreement. Williamson was frustrated when he didn’t accept the settlement.
Wright refused to accept the settlement and was immediately suspended pending the outcome of a disciplinary inquiry into his ability to continue working at the school as a result of an “irretrievable break down in relationships” with Kilmartin, the SLT, and Wright.
Wright said to the tribunal, “I was distraught by the suspension because despite my complaints, I loved my work. I wanted to know the truth, and to receive some acknowledgment so that I could move on. “I had become fixated and pursued the issue tenaciously which is related to my autism.”
Wright was officially diagnosed with autism spectrum disorders in November.
The grievances that followed were not accepted. The headteacher invited Wright to a mediation session in July 2018 after a disciplinary hearing was postponed.
The school also arranged to have a consultant for employment training from the National Autistic Society assess the claimant in order to determine if he could return to his job as the head of mathematics.
Alternative roles
Wright met Claire Jarman, the deputy headteacher in September to discuss the changes to the role of the head maths resulting from the NAS’s recommendations. Wright described the meeting positively.
By November, Jarman emailed Wright, suggesting he return to a new role as a “high-performance coach” (HPC).
The tribunal agreed that Kilmartin told Jarman Wright’s return to his former role was not possible and concluded that Jarman had been put in a tough position. The panel stated that it was evident that Wright was concerned about the new position, which appeared to be a demotion and had less responsibilities.
Wright’s lawyers wrote to Jarman the following week to express their concerns regarding the new position. Kilmartin suggested further mediation to Wright in January 2019. Wright, however, raised another grievance about his removal as head of mathematics.
Wright received a letter from Des McGuckian, the school governor in April 2019, stating that the grievance had been resolved. Wright was required to take on the HPC position until he felt ready to return back to his regular role.
I believe that before you return as subject leader that mutual trust must be rebuilt and developed over time. This could be achieved by moving into the HPC position, he wrote.
Wright appealed against the outcome of his grievance. Wright then wrote to the tribunal, claiming that he was “under some pressure” to accept his HPC role.
Working under protest
Wright stated on 30 May that he is willing to “return the HPC role in first instance to transition back to [my] permanent subject lead role”, but he will do this “under protest”.
Wright replied to the letter by confirming that he was still standing by his grievance and that his unresolved employment tribunal claim would not disappear, as he had “the right to pursue it while employed and not be harmed because of this”.
McGuckian responded a day later, saying: “While accepting the offer to come back as high-performance coach, your conditions indicate that the grievance has not been resolved (in particular the fact that you will be working under protest in this role), and it is something that you are still concerned about if you return to the [Cardinal Newman Catholic School].
“I don’t believe that this is a position that you or the school can accept… I feel like, despite our best efforts, we’ve now exhausted all options in trying to reach a mutually agreeable resolution to ongoing disagreements.”
McGuckian informed Wright that his employment would end on 31 August 2019.
Wright received notification in December 2019 that his appeal had been denied.
Resignation: Reasons for dismissal
The school claimed that Wright was fired because of his incapacity or for some other reason, such as a breakdown in relationships with colleagues and misunderstandings. However, the tribunal found that Wright was actually dismissed because he refused to accept the HPC position unconditionally.
The school governors were not happy that Wright had said that he was willing to accept the new position “under protest”, and that he intended to continue his employment tribunal case.
The panel concluded that it would be unreasonable to dismiss an employee because of a reason that amounted to victimisation.
The court found that Wright’s dismissal on grounds of incapacity was without merit. “There simply was no evidence that could have led the respondent to genuinely and rationally conclude that the claimant (medically) was not capable of doing his job.”
The judgement went on to say: “The Tribunal rejected any suggestion that the relationship breakdown between [the headteacher] and/or SLT was a cause for dismissal. For his reasons, [the director] didn’t want the claimant working at the school. He certainly did not wish him to return to the role of head of mathematics.
The respondent’s argument that there was a breakdown of relations was undermined both by its own arguments and the fact the school wanted to continue employing the claimant as the HPC. The tribunal was unable to understand the logic behind the respondent’s arguments, given that [the head] would have ultimately been responsible for the claimant.
The report added that the relationship between Wright and his senior colleagues was “clearly fixable” and “whilst problems existed, they were not significant”.
The panel stated that the dismissal would be unfair if there was no reason. It was then concluded that the act was one of victimisation.
Unfavourable treatment
The tribunal found that Wright was treated unfavorably because of his persistent complaints, constant raising of grievances and subject access requests, as well as the way he made them.
The judge said that the claimant had announced, even to the very end, that if he accepted his HPC position, he would ‘work under protest’, and continue to pursue his tribunal claim. This was, of course, something he could do.
The question is, “Did the claimant’s treatment result from his persistence or, as the claimant pleaded, ‘pursuing his complaints tenaciously,’ and how he did this? Or were they the result of his autism, or other disabilities?”
The panel concluded that “the claimant’s behavior which ultimately led to his dismissal, was a result of his autism”.
Wright’s complaints of victimisation, discrimination and unfair dismissal based on disability were all sustained; the claim that Wright failed to make reasonable accommodations was dismissed.
The tribunal ordered Cardinal Newman Catholic school to pay Wright a gross amount of PS850,000. This included PS750,000 in compensation for injury of feelings, loss of earning (past and present), pension loss, and interest, PS75,000 as personal injury plus interest, and PS25,000 to cover legal costs. This amount is on top of a PS9,190 basic award already paid by respondent.
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