Award for £173,000 for unfair dismissal and age discrimination claims

The following case of Mrs J Ware v London Borough of Ealing and The Governing Body of Horsenden Primary School is a reminder of the huge awards that can be made by the employment tribunal (ET) if a claimant succeeds in their claim.

During her employment at the school, Mrs Ware was employed in three part-time roles of attendance/medical officer, pool plant operator and ‘seahorse’ swim school co-ordinator. At the time of her initial appointment in 2013, she was 62 years old.

New leadership

In July 2018, a new headteacher and deputy headteacher were appointed. After Covid lockdowns, the school started to increase external bookings for its swimming pool in a bid to boost income. During this time there were more pool closures.

Restructuring

In November 2021, Mrs Ware was called to a meeting with the headteacher where it was discussed that her role of attendance/medical officer would potentially be combined with the role of welfare officer. The headteacher proceeded to indicate that she had in mind Mrs Ware would relinquish her role of attendance/medical officer to focus on the swim school co-ordinator role. This resulted in a significant drop in income for Mrs Ware. During the meeting, the headteacher said “We’re not all going to be here forever”. Following the meeting Mrs Ware confirmed that she had no intention of retiring and raised her concerns about the merging of roles.

Disciplinary investigation

In December 2021, the headteacher started an investigation into the number of closures of the swimming pool. Mrs Ware was excluded from the initial investigation. She was subsequently invited to a disciplinary investigation meeting in relation to the pool closures, and informed the allegations amounted to gross misconduct and may result in dismissal. The following day, Mrs Ware asked for a list of dates the pool had been closed and was later suspended for threatening behaviour and trying to influence the outcome of the investigation.

It later became clear that in fact Mrs Ware only had 30 minutes per day to devote to the pool. Had the headteacher spoken to Mrs Ware earlier, the entire disciplinary procedure could have been avoided. Most concerns were matters that went beyond Mrs Ware’s responsibility.

No meaningful consultation

In January 2022, the headteacher proposed a re-organisation of the swimming pool management. No meaningful discussion took place with Mrs Ware about the restructure and the impact on her roles. Her role was subsequently deleted, and she was not provided with any clear details about the new roles or advised of alternatives to dismissal. The headteacher was of the opinion Mrs Ware would not be interested in a full-time post and Mrs Ware has not indicated any interest in the new roles.

Redundancy

On return to work, following the lifting of her suspension, Mrs Ware was told to refrain from her role of pool plant operator. She remained at home until May 22 when she received an email with an ultimatum of accepting redundancy or returning to work in her attendance/medical officer and swim school roles. No mention was made of the pool plant operator role. Mrs Ware reluctantly accepted the redundancy package.

ET claims

Mrs Ware brought claims for unfair dismissal and age discrimination relating to various issues around the treatment she had received. She believed she was being removed from her role because of her age and assumed proximity to retirement. The school denied the claims and maintained Mrs Ware was dismissed due to a reorganisation.

Unfair dismissal

The ET found the school had failed to act reasonably and failed to follow a fair process in dismissing Mrs Ware. The school had failed to follow its own restructuring policy, to engage in meaningful consultation, to provide job descriptions for the new roles, to consider alternatives and advised Mrs Ware she would have to apply for a role because roles were being advertised externally.

Age discrimination

The ET further found Mrs Ware had been discriminated against because of her age. The comment of “We’re not all going to be here forever” was inherently ageist and was not capable of being objectively justified. The ET further found the dismissal itself was direct discrimination because of her age.

Award

Mrs Ware was awarded a total sum of £173,038.16.

Advice to schools

It is important that school policies and procedures are followed with regard to any formal procedure such as a restructure or dismissal process. In the above case, the failure to follow the correct procedure had resulted in the school not being able to show that age played no part in the reason for the treatment.

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