A school teacher who frequently complained about racist language was unfairly dismissed, after senior leaders threatened a ‘wildcat strike’ if she returned to work. Personnel Today takes an in-depth look at the employment tribunal decision in Mairs v Trafford Council and Kings Road Primary School.
Ms Mairs, who had worked at Kings Road Primary School, Old Trafford since 2001, won her claims for unfair dismissal and race discrimination by victimisation at Liverpool employment tribunal last month.
The tribunal heard that Mairs, who is black, had complained of the insensitive use of race-related language and various “microaggressions” beginning in 2016.
In 2017-18, Mairs felt her teaching assistant, Mrs Gallon, was not supporting her as well as she supported other teachers. When she raised this with Gallon, the TA responded by pointing her finger and jabbing the air. Mairs lodged a grievance, suggesting potential unconscious bias on the part of Gallon, adding that many years before, Gallon had shared that her family were uncomfortable about attending an interracial wedding.
Gallon, on hearing there was a racial element to the grievance, lodged a counter-grievance alleging bullying. On investigation, another teacher, Mrs Hoodless, found there to be no racial element to the grievances and no bullying. Neither grievance was upheld, Mairs accepted the outcome, did not appeal, and worked with Gallon after the outcome.
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Another incident involved being asked by the head teacher to work on Black History Month. The claimant felt that giving black people black-related content to deliver was a microaggression.
A further example involved a parent who alleged racism and threatened to move their child from the school and wanted to discuss the matter with the head teacher, Mr Morgan.
However, he directed that Mairs should speak to the parent. Again, the claimant felt this was a microaggression, giving her the task of speaking to a black parent because she is black. She spoke with the parent as requested and did not make any complaint.
‘Cheeky monkeys’
On another occasion, Mairs raised concerns about naughty children being left to stand outside in cold weather. She felt this was inappropriate and added that black children feel the cold more than white children. Another example involved a photograph of a black child wearing a label which said “blackcurrant”. Mairs believed it was inappropriate and asked staff to be sensitive about labels.
The tribunal also heard that Mairs had objected to a visiting magician referring to pupils as “cheeky monkeys”. The head teacher Mr Morgan reacted by instructing all staff to remove any reference to monkeys from the school: library books and art displays were removed, and reception classes stopped singing the song Five Little Monkeys. This caused tension among the staff who saw this as Mairs’ fault.
Other incidents occurred, race-related or otherwise, including one of the school’s weekly idioms, which featured a picture of a Ugandan family, apparently in poverty, to illustrate the phrase “making ends meet”. Mairs was also omitted from some meetings and a colleagues’ WhatsApp group.
The tribunal described the tone of emails that Mairs sent to senior leaders as “harsh and inappropriate”. One read: “Although wanting our school to be fully inclusive for all, unfortunately for me being black that will never happen. There is no escape from racist thoughts or behaviours. There are some really horrible people in this school who think they can do as they please… may they continue to tell lies to hide their non-inclusiveness… actions will always speak louder than words.”
The tribunal heard how the senior leadership team (SLT) felt that the claimant was a difficult colleague to work with because she often complained formally about matters that could be resolved amicably. She would escalate concerns above the person she had first gone to before giving that person time to respond.
Some staff went to SLT members saying it was difficult to work with Mairs because of their fear of her complaining generally and, specifically, of her accusing them of being racist. Staff said they were afraid to use the word “black” in any context for fear of being accused of racism.
The judgment stated that the SLT felt a disproportionate amount of time was taken up responding to Mairs’ emails, and the concerns of other staff about her propensity to accuse people of racism. But no one spoke to the claimant about her behaviours or the manner or content of her complaints face to face.
Leadership lodges grievance
Six members of SLT decided to lodge a collective grievance against Mairs, which included that her complaints were “alarmingly frequent” and made directly to the head teacher. The grievance listed nine individuals or categories of people, about whom the claimant had complained.
They said: “Our primary goal is to achieve a positive outcome whereby the claimant ceases the unreasonable, negative, intimidating behaviour outlined above. Our wish is that the claimant continues working within our organisation, but in a positive and reasonable way… all staff should feel comfortable… without fear of being labelled racist or unprofessional.”
In July 2019 the content of the grievance was shared with the claimant by Morgan with HR present. There was no disciplinary investigation, nor performance management issue raised by Morgan or HR at the time, but HR raised mediation as a possible way forward.
Mairs was shocked by what she read and took time over the summer to think about how she could move forward with six of her managers against her. She met her union representative whose advice led Mairs to lodge her own grievance in October 2019, asking for it to be investigated alongside the SLT’s grievance. Mairs remained off sick from September onwards.
Following a meeting with an investigating officer, Mr Hanif, Mairs sent supplementary information relating to the grievances: “The SLT complained about not being able to use the word black. This can only be discrimination about the colour of my skin. They are unable to use the word black, which indicates how uncomfortable they are around their black colleague. This again is racial discrimination and more commonly known as blackophobia.”
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The SLT wrote to Hanif saying that Mairs’ grievance was “retaliatory action”, vengeful and amounted to harassment, describing it as “slanderous and malicious”.
The SLT letter said: “We are edging closer to a position of irreconcilable differences where each member of the SLT and teaching staff fears being subjected to unfounded and malicious grievances by the claimant … fears ongoing and permanent damage that could be done to our professional reputations … by such vicious allegations.”
Viciously pursued claims
In March 2020, Hanif’s investigation concluded that Mairs’ grievance was malicious “aimed at deflecting and steering away issues raised by the SLT”. He made eight recommendations that included formal mediation between Mairs and SLT.
An appeal outcome in September 2020 found Mairs’ grievance to be malicious because it would not have been made if the SLT had not lodged their grievance and that the issues raised had been resolved previously. It was a reaction to the SLT grievance and done in “bad faith”.
It recommended a formal investigation into the breakdown of the relationship but this was not instigated and Mairs remained off sick. An occupational health report in November 2020 recommended a return to work. The school consulted the SLT about this and each member of the SLT refused to work with Mairs or threatened to leave if she returned.
One SLT member wrote: “I wish to give formal notice that should this employee return to work at Kings Road I would be completely unable to enter the building and continue with the job I love so dearly. I cannot and will not work in an establishment where I do not feel safe … malicious treatment by one individual … viciously pursued hateful and unfounded claims against our staff … Can we genuinely be offered any assurance that this behaviour will cease?”
The next day, the claimant was suspended from her role by the chair of governors Mr O Keefe. His letter gave the reason for suspension as the irretrievable breakdown of the working relationship with the SLT. It said that suspension did not constitute disciplinary action and that an investigation into the irretrievable breakdown would take place.
Breakdown in mutual trust
This investigation concluded that Mairs’ counter-grievance alleging blackophobia was of such gravitas that it had contributed to the SLT’s perception that there was a “breakdown in mutual trust and confidence”, that mediation would not work and that a dismissal meeting should take place.
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A letter was sent convening a dismissal meeting, initially for September 2021, with Mairs now having been out of school for two years. A dismissal hearing eventually happened in January 2022, and the claimant was dismissed in February 2022 because of the irretrievable breakdown in the relationship.
Mairs received her final salary payment in May 2022 but an appeal against her dismissal was held in September 2022.
Mairs’ union representative wrote to the appeal panel before the hearing saying: “We believe that the panel failed… in choosing to dismiss without first ascertaining whether enacting the recommendations (Hanif) may repair the professional relationships. This decision is of serious detriment to [the claimant] and we therefore ask the governors on this panel to … overturn … that decision and reinstate…
“[The claimant] has repeatedly accepted the recommendations…; the suspension and subsequent dismissal have been triggered by SLT’s threat to engage in a wildcat strike.”
Nevertheless, the dismissal was upheld on appeal.
Blackophobia
In its judgment the tribunal panel established that Mairs’ counter-grievance, citing race discrimination, constituted a protected act. It rejected that it was made in bad faith.
“The tribunal finds that the claimant honestly believed that SLT’s motivation was because they were afraid that if they raised a concern with her she would accuse them of racism. This is what she meant by use of the term ‘blackophobic’. She honestly believed that SLT would not have lodged a collective grievance about matters in their grievance without having previously raised them with the individual teacher on a one-to-one basis, if that teacher had not been black,” said the panel.
It found Mairs to be a credible witness. The judgment continues: “The respondent referred to the claimant’s grievance as ‘the counter-grievance’ to advance its argument that the claimant’s grievance was in bad faith because it was retaliatory and that because she had not raised them before the SLT grievance, she had not previously thought the allegations were racist.
“The tribunal accepts the submission that the claimant accepted in cross-examination that she thought she had had a good working relationship with each member of the SLT who later signed the grievance against her, as late as June 2019. The claimant had a good performance review in June 2019. The tribunal accepts her evidence that choosing not to act on something at the time does not mean that it was not perceived at the time to be racist.”
The SLT members’ letters refusing to work with Mairs were strongly worded, said the judge. They used “highly emotive language” which appeared “excessive”.
“The striking similarity of content, vocabulary and the timing of the letters … showed the tribunal that the writers had colluded to put their letters together,” said the judgment. “The tribunal finds that it was those letters that led to the claimant’s suspension, the next day, and ultimately dismissal.”
The judgment found that the respondents’ actions rendered the dismissal unfair. The dismissal hearing “appeared to have predetermined” that the relationship had broken down and that Mairs should be dismissed. The respondents could have maintained Mairs’ employment and further, they failed to consider a possible alternative of the claimant remaining employed as a teacher in the region, within the [Local Education Authority] but not at the school. “This failing, on its own, renders the dismissal unfair,” said the judge.
The tribunal unanimously found that the decision to dismiss “fell outside the range of responses of a reasonable employer”.
The complaints of unfair dismissal, race discrimination by victimisation, unauthorised deduction from wages and breach of contract for pay due, all succeeded. A hearing to establish compensation will be scheduled later this year, but the tribunal said it would reduce the claimant’s basic award to reflect her conduct prior to dismissal.
“Her letter writing to her head teacher was inappropriate, her propensity to escalate matters over her manager’s heads and colleagues’ heads without giving them adequate time to respond was inappropriate,” it said. “The tribunal would reduce the basic award by 33% to reflect the fact that the claimant was a difficult colleague for the reasons set out in the factual findings.”
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