A further education lecturer has been awarded more than £50,000 after he was unfairly dismissed for bringing lessons forward in order to leave work early.
An employment tribunal unanimously decided that Mr Barbrook would not have been dismissed by New City College in Hornchurch, east London, had a fair disciplinary procedure been followed.
Employment Judge Howden-Evans ordered the employer, one of the largest FE college groups in the UK, to pay Barbrook £53,400 in compensation after finding the decision to dismiss fell beyond the band of reasonable responses.
She added that had a fair procedure had been adopted, there was “no chance that the claimant would have been dismissed. At most, he may have received a warning, but he was most likely to receive training on revised practices.”
Barbrook began working at Havering Sixth Form College in 1997, initially as a tourism lecturer and subsequently as course leader for sport. His employment transferred to the New City College group under TUPE in 2019. He had an “unblemished” disciplinary record.
In November 2020, during the Covid pandemic, he was suspended after New City College alleged that he had cancelled morning coaching sessions, falsified the student register, left work early without permission, and had not provided allocated teaching hours the previous month.
Unfair dismissal
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The claimant denied the allegations but was subsequently dismissed for gross misconduct in January 2021, which an appeal later upheld.
The tribunal heard that the college was aware of an informal practice of teachers starting the final lesson of the day during lunch “to engineer an early finish”.
Barbrook had a longstanding agreement with Havering Sixth Form College that his “offsite time” would be timetabled on a Friday afternoon so he could leave early to facilitate his three-hour drive home to Caerphilly.
The tribunal decision stated that there appeared to be “a desire to find acts of gross misconduct and the allegations and investigation veered off on a different path” when it established the claimant had not cancelled the afternoon class as originally alleged.
This suggested the respondent was “creating a case to fit the outcome it desired”. The judgment said: “However, when we looked at the information in front of the dismissing officer and the appeal officer, we accepted (just) that they both genuinely believed the claimant had committed these acts and that these acts amounted to misconduct.
“We accepted [that they] were not party to a sham process to facilitate the claimant’s dismissal; nor were they motivated by his sickness record or his decision not to pursue voluntary redundancy.”
Completely incurious
The judgment noted though that, far from having an open mind and looking for evidence that might support the claimant, the college’s investigation was “completely incurious” in its approach.
The tribunal heard that Mr Araniyasundaran, the investigator, had not seen key documents that supported Barbrook, including minutes of a meeting with students who confirmed when the claimant’s afternoon lessons had ended, and minutes of a meeting with Barbrook’s line manager in which she admitted giving verbal permission for the claimant to bring forward his afternoon lesson on Friday afternoon on two previous occasions.
Araniyasundaran had also not seen the claimant’s solicitor’s seven-page letter which set out a comprehensive account of the concerns about the procedures that had been adopted, extensive submissions as to whether Barbrook had committed acts of misconduct, and mitigation that ought to have been considered.
Superficial understanding
The tribunal also heard from the appeal officer Gerry McDonald, chief executive of New City College, who confirmed he did not undertake any fresh investigations as part of the appeal.
The judgment said: “During oral evidence it was evident Mr McDonald had a very superficial understanding of the claimant’s acts of misconduct – for instance, Mr McDonald had not appreciated that the claimant was teaching the same class before and after lunch on Friday afternoon – the claimant had merged their two lessons rather than moving a different class’s lessons forward.”
Given that the claimant’s appeal letter was eight pages long, the tribunal said it was “surprised” that the appeal outcome letter was only one page and one line long. The appeal’s findings could have applied to “almost any disciplinary appeal and demonstrate the very limited extent to which the claimant’s grounds of appeal were actually considered”.
The judgment said: “We are satisfied that the respondents’ decision to dismiss (and uphold that decision), and the standards by which those decisions were reached, fell beyond the band of responses open to a reasonable employer of a similar size and with similar administrative resources.”
A claim for disability discrimination did not succeed. In the remedy judgment, the total award amounted to £53,400, comprising a basic award for unfair dismissal of £14,300 and compensatory award for loss of earnings of £39,000.
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