Teacher awarded over £460,000 in racial discrimination and unfair dismissal case
In Mrs C Burton-York v Diocese of Westminster Academy Trust, the employment tribunal (ET) considered whether Mrs Burton-York, a black Afro-Caribbean teacher, had been racially discriminated against, as well as unfairly dismissed.
Mrs Burton-York started working as a teacher of geography at Douay Martyrs School in 2004. In April 2012, the school joined the Diocese of Westminster Academy Trust. Around 2012, Mrs Burton-York was appointed as a head of year (HOY).
In April 2016, Mrs Burton-York had a month off work for a surgical procedure. At the time, she was the HOY for year 11. When she returned to work Mr Corish, the headteacher, said that he suggested that for the remainder of that academic year, she should not perform her HOY duties. Mrs Burton-York, however, stated that Mr Corish suggested that she not act as a HOY at all for the following year, but that she would be paid as HOY. She stated that Mr Corish refused to put it in writing, though, so she refused the offer.
In Autumn 2016, the heads of year were told that there would be a potential reorganisation. At the beginning of February 2017, Mr O’Reilly, one of the deputy headteachers, told them that they would need to reapply for their posts and that if they were unsuccessful then they would no longer be a HOY. He also told them that there would be a further round of recruitment to fill any vacancies which were left. There would still be five heads of year (for that age range), but they were not guaranteed to be appointed to those posts.
The only written document that was sent to staff in relation to the proposal was an email sent on 7 February 2017. The email invited comments on the proposal in writing by 28 February 2017, but did not discuss whether the process was one of dismissal and re-engagement on a different contract. The email said nothing about the process at all, including whether or not there would be interviews, or what would be tested during the interview, and whether there would be any other selection criteria applied.
Four candidates for five vacancies
Of the existing five heads of year, one decided not to apply, meaning that there were four candidates for five vacancies. The four candidates were interviewed by the same panel over different days and were asked the same 10 questions. For each question, the interviewer marked the candidate out of five. However, the panel did not add up the scores for every candidate. After the interviews had finished, the panel got together and had a discussion. No documentation was produced during or after this discussion and there had been no decision, before the interviews, that there would be a particular score below which a candidate would not be appointed. The panel decided that candidates 1, 2 and 3 would each be offered a HOY post and that Mrs Burton-York would not be.
On 30 March 2017, Mrs Burton-York was told that she was not to be appointed as HOY. She was not provided with any written feedback, not given the opportunity to work on whatever areas of weakness had been perceived and to reapply again for the two remaining vacant positions and she was not told that she could appeal.
Meeting regarding TLR
A meeting was held on 28 November 2018, between Mrs Burton-York and Mr Corish to discuss the types of activity she might do which would be commensurate with the TLR that she was still entitled to receive. Mrs Burton-York was not satisfied with the meeting and went home due to ill health. She never resumed her duties before resigning a little over 12 months later.
On 31 January 2019, Mrs Burton-York submitted a grievance. Her complaints related to references, which had been written by the school. A few days later, Mrs Burton-York added additional issues to her grievance, including the HOY issue and complaining about being treated ‘differently’ and about not being given ‘equal opportunities’.
The chair of governors, Ms O’Grady, responded to Mrs Burton-York stating that most of her complaints were out of time and that the additional complaints were outside the scope of the grievance policy. In the outcome letter, Ms O’Grady wrote that the consultation process for HOY had been correctly followed and rejected Mrs Burton-York’s assertion of a breach of the Equality Act.
No contact from the school
When the academic year started, the school did not contact Mrs Burton-York. On 29 November 2019, she wrote to Ms Doyle (the headteacher’s assistant) about her pay and expressing dissatisfaction about the way her absence was dealt with. A colleague of Ms Doyle’s, Ms Smith, replied to Mrs Burton-York to say that her half pay had ceased on 22 November. Mrs Burton-York replied to that email disputing her pay, but there was no further reply from the school.
On 20 December 2019, Mrs Burton-York resigned. The ET stated that they accepted that her resignation was caused by a number of factors, including her opinion that she had been discriminated against, harassed and victimised. She also believed her health had been damaged. The trigger for her resignation was that her sick pay entitlement had run out and that she had made enquiries about possible extension, and about what the school might do to assist her return to work, including an OH referral but had received no response.
Mrs Burton-York brought complaints of unfair dismissal, breach of contract, harassment related to race and direct discrimination because of race. In total, there were 20 allegations made. Of those, the following succeeded.
Allegation 2: Harassment/discrimination by requesting that Mrs Burton-York relinquish her HOY 7 role
The ET found that the headteacher had not satisfied them that the decision to ask her to step down as HOY was not connected to race. Therefore, this allegation succeeded in relation to direct discrimination.
Allegation 3: Harassment/discrimination by a) not reappointing Mrs Burton-York in a HOY role and b) not redeploying her to another role commensurate of TLR1 when she had been told she would be redeployed
Out of the four candidates being considered for HOY roles, only Mrs Burton-York was not offered a position. The ET found that she was treated less favourably than other HOYs, who are of a different race to her.
There was no documentation for the specific reasons that her interview was deemed to make her below the (unwritten) pass/fail standard.
There was also no accurate explanation for several matters, including the lack of transparency about the fact she was told she could not reapply if not appointed the first time around.
Therefore, allegation 3(a) succeeded in relation to harassment. However, in relation to allegation 3(b) the ET did not accept that the school ever told Mrs Burton-York that she ‘would’ be redeployed.
Allegation 9: Harassment/discrimination by giving inaccurate, misleading and/or negative references to various schools
The ET found that the school had not been able to prove that race did not influence the references. Therefore, it held that the reference contents were direct discrimination because of race, and subjected Mrs Burton-York to a detriment.
Allegation 18: Was there a dismissal and, if so, was it an unfair dismissal?
The trigger point for the resignation was the fact that the school had stopped contact. The school admitted that it did not follow-up after the April 2019 OH report, or to contact her about potentially coming back to work, with or without adjustments.
The ET concluded that the school’s failure to reply to Mrs Burton-York’s emails ‘was conduct calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties’. Mrs Burton-York resigned in response to that breach.
Therefore, the ET found that there was a dismissal, and that the dismissal was unfair.
Allegation 19: Breach of contract
The ET found that Mrs Burton-York had resigned in response to the school’s repudiatory breach and that she had not waived that breach.
At the remedy judgment, the school was ordered to pay £462,973.77 for, amongst a number of issues, unfair dismissal, financial loss during and after employment (plus interest), pension loss, injury to feelings and personal injury (plus interest) and an additional sum for grossing up (this is the additional amount covering income taxes due on the total amount calculated).
Summary and advice
This case demonstrates that schools should ensure that there is proper consultation throughout the whole process of a reorganisation. The selection criteria must be clear and transparent. If an interview process is being used as the method for selection, then the scheme of marking must be clear and all paperwork completed.
When an employee is absent due to sickness, then the school’s absence policy should be followed. The school should keep in touch with the absent employee, rather than ignoring them, and arrange regular meetings to discuss the possibility of a return to work.
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