A teacher with autism who repeatedly made complaints and raised grievances is to receive £850,000 after the employment tribunal found he was unfairly dismissed, victimised and discriminated against by a comprehensive school in Hove. In an in-depth report, Rob Moss looks at how the teacher’s tenacious pursuit of his complaints, a behaviour related to his autism, ultimately led to his discriminatory dismissal.
An employment tribunal has found that Cardinal Newman Catholic School’s decision to dismiss its head of maths, Marcus Wright, fell “significantly outside” the band of reasonable responses and the reason for dismissal amounted to victimisation.
Wright began working at the 2,500-pupil, state-funded school in 2005. In 2014, a colleague Sam Humber unsuccessfully applied for a permanent post three times and Wright was “heavily involved in supporting him” in raising grievances against the school. Humber subsequently won a victimisation claim at tribunal after Wright gave evidence in his support.
In December 2014, Wright was the subject of a misconduct investigation for not attending an external event and for leaving school early. He explained that on both occasions he had been unwell and a doctor’s note confirmed he had an irregular heartbeat and he was signed off sick. An OH report recommended a stress risk assessment.
A disciplinary followed and in March 2015 Wright received a written warning for lying to his line manager about his attendance at the event, and for speaking to a colleague in a “disrespectful and inappropriate manner”.
Big black cross
In April 2016, Wright found a document in his pigeonhole, a three-page extract from the school handbook on which his name was listed with a “big black cross” next to it.
He raised a grievance in which he said the document was a “deliberate and sustained attempt to undermine me, due to my involvement in supporting a colleague at a tribunal, which has had a detrimental impact on my health”. The grievance was not upheld so Wright appealed, which months later was dismissed.
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By February 2017, the school’s vice chair of governors had appointed an external HR consultant to investigate Wright’s allegations of bullying.
At about the same time, Wright requested a referral for an autism assessment because others, inside and outside work, had suggested he might be. He said he needed to understand if what others thought about him was right and whether this affected his mental health.
That spring he had four meetings with the HR consultant to discuss his bullying complaints and whether these related to him supporting Humber’s claim at tribunal.
He also submitted a subject access request to establish if there was any evidence senior colleagues had taken a particular stance or attitude towards him because of his support for Humber.
In June, the claimant was asked by his union rep if he wished to consider an agreement with the school to terminate his employment in return for a financial settlement.
Shortly after, Wright received the HR consultant’s report which the tribunal concluded was “not very helpful” because it did not reach any conclusions or resolve any issues.
Continual allegations
On 20 June, Wright was asked to meet with the chair of governors, Tim Williamson. The tribunal concluded that by this stage Williamson had been told by head teacher James Kilmartin, in clear terms, that the claimant had to leave, that he could not work with him any more and did not want him employed at the school.
Kilmartin’s attitude to Wright was neatly summarised in a statement he provided during a later disciplinary investigation in which he said: “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.”
Importantly, the tribunal did not think it was Wright’s support of Humber that was the cause of the deterioration in the relationship, but rather his tendency to keep raising complaints, taking up senior leaders’ time.
The tribunal heard that “given the amount on offer” in the settlement agreement, Kilmartin expected Wright to accept it at the meeting. When he did not, Williamson became frustrated and angry.
Because Wright was not prepared to accept a settlement, he was suspended with immediate effect, pending a disciplinary investigation into whether he could continue to work at the school due to an “irretrievable breakdown in relationships” between Wright, Kilmartin and the senior leadership team (SLT).
Wright told the tribunal: “I was devastated by the suspension as despite my complaints I loved my job. I was trying to get to the truth and receive some acknowledgement in order to move on. I had become fixated on the issue and therefore pursued it tenaciously, which relates to my autism.”
In November, Wright was formally diagnosed with autism spectrum disorder.
Subsequent grievances were not upheld. A disciplinary hearing – relating to the breakdown in relationships – was postponed and the head teacher invited Wright to mediation, which was held in July 2018.
Around the same time, the school arranged for an employment training consultant from the National Autistic Society (NAS) to assess the claimant to explore adjustments for his return to work as head of maths.
Alternative role
In September, Wright met with deputy head teacher Claire Jarman to discuss adjustments to the head of maths role arising from the NAS recommendations. Wright described the meeting as positive.
However, by November, Jarman had emailed Wright to propose he returns to a different role, that of “high performance coach” (HPC).
The tribunal accepted that Kilmartin had told Jarman that Wright returning to his old role was not an option and concluded that Jarman was put in a difficult position. The panel said it was clear that Wright had concerns about the new role, as it appeared to have less responsibility and was therefore a demotion.
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The following week, Wright’s solicitors wrote to Jarman expressing concerns about the new role. In January 2019, Kilmartin wrote to Wright suggesting further mediation but Wright raised another grievance regarding his removal from the head of maths role.
School governor Des McGuckian wrote to Wright in April 2019 with the formal grievance outcome. This required him to accept the HPC role until he was ready to return to his normal role.
“I believe that, before you can come back as subject leader, that mutual trust needs to be reset and built up over time. A move into the HPC role would allow this to happen,” he wrote.
Wright appealed the grievance outcome. Correspondence followed and the tribunal heard that Wright was “placed under some pressure to accept the HPC role”.
Working under protest
On 30 May, Wright wrote that he was willing to “return to the HPC role at first instance In order to transition back to my permanent subject lead role” but that he would do so “under protest”.
Further correspondence followed where Wright confirmed that he stood by his grievance appeal and that his outstanding employment tribunal claim “does not go away as I have the right to pursue this whilst employed and not be victimised because of it”.
McGuckian replied a day later: “While you have accepted the offer to return as high performance coach, the conditions under which you have done this indicate that this grievance is not resolved in your mind (in particular that you would be ‘working under protest’ in that role) and that it will continue to be an issue for you should you return to [Cardinal Newman Catholic School].
“I do not believe that this represents a satisfactory position for either you or the school… I feel that, in spite of our best efforts, we have now exhausted all avenues in terms of trying to find a mutually acceptable resolution to the ongoing areas of disagreement.”
McGuckian notified Wright that his employment was being terminated, ending on 31 August 2019.
In December 2019, Wright was notified that his appeal was not upheld.
Reasons for dismissal
At the tribunal hearing, the school argued that the reason for Wright’s dismissal was capability or some other substantial reason – a breakdown in working relationships and personality clash – but the tribunal concluded that “the real reason the claimant was dismissed was because he would not accept the HPC role unconditionally”.
The school governors did not like the fact that Wright said he would agree to work in the new role “under protest” and that he would continue to pursue his employment tribunal claim.
The panel concluded: “It would not be within the band of reasonable responses to dismiss an employee for a reason which effectively amounted to victimisation.”
It found the school’s contention that Wright was dismissed on capability grounds to be without merit: “There was simply no evidence upon which the respondent could genuinely and reasonably have concluded that the claimant was not capable of performing his job (medically or otherwise).”
The judgment continued: “The tribunal rejected any suggestion that a relationship breakdown with [the head teacher] and/or the SLT was the cause of dismissal. For his own reasons, [the head] did not want the claimant to work at the school and certainly did not want him to return to his head of maths role.
“The respondent’s case as to a breakdown in relations was undermined by its own case and the fact that the school was in fact willing to continue to employ the claimant in the HPC role. The tribunal could not quite understand the logic of the respondent’s argument given that the claimant would ultimately have been answerable to [the head].”
It added the relations between Wright and senior colleagues were “clearly capable of being fixed” and “whilst there were problems, they were not substantial”.
“Without a potentially fair reason, the dismissal was inevitably unfair,” said the panel, and it followed that it was an act of victimisation.
Unfavourable treatment
The tribunal concluded that the reasons for Wright’s unfavourable treatment were his persistence in complaining, continual raising of grievances, subject access requests and the manner in which he did this.
The judgment said: “Even to the end, the claimant announced that if he accepted the HPC role, he would be ‘working under protest’ and would continue with his tribunal claim, as of course he was entitled to do.
“The question for this tribunal is whether that persistence, or, as pleaded by the claimant, ‘pursuing his complaints tenaciously’, and the manner in which he went about this, was the reason for the claimant’s treatment and whether they arose in consequence of his autism and/or other disabilities.”
The panel concluded that the “claimant’s behaviours which led ultimately to him being dismissed, arose out of his autism”.
Wright’s claims of unfair dismissal, victimisation and discrimination arising from disability were all upheld; a claim of failing to make reasonable adjustments failed and was dismissed.
By consent between the parties, Cardinal Newman Catholic School will pay Wright the gross sum of £850,000, comprising £750,000 compensation for injury to feelings, loss of earnings (past and future), pension loss and interest arising out of the discrimination and victimisation claims, £75,000 for personal injury plus interest and £25,000 for legal costs. This sum is in addition to a basic award of £9,190 already paid by the respondent.
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