Unfair Dismissal and Ulterior Motives – Tribunal Fell Into Substitution Trap

Determining the true reason for an employee’s dismissal is one of the hardest tasks undertaken by Employment Tribunals (ETs). That was certainly so in one case in which a school’s head teacher was accused of having an ulterior motive for dispensing with the services of its veteran maintenance manager.

Concerns had been raised that a right of way across the school’s land was being used by sportsmen carrying firearms who shot clay pigeons on a neighbouring site. The school had a strict policy against unknown visitors and, following a disciplinary process, the manager was dismissed on the basis that he had failed to inform the school of the problem and the potential child protection and safeguarding issues that it posed.

In upholding the school’s challenge to that decision , however, the Employment Appeal Tribunal (EAT) ruled that the ET’s conclusions were not supported by its findings of fact. It had not found the head teacher’s account of what was, in her mind to be untruthful and had failed adequately to explain its conclusion that she had an ulterior motive. When considering the fairness of the disciplinary process and the sanction imposed, the ET had also fallen into the trap of substituting its own views for those of the head teacher. The case was remitted for a fresh hearing before a differently constituted ET.

In upholding his unfair dismissal claim, and awarding him £39,854.23 in damages, an ET noted that the head teacher had previously issued him with a final written warning in respect of performance concerns, notwithstanding his 20 years of unblemished service. That and the head teacher’s hostility towards him was the real reason for his dismissal. The head teacher had not been sufficiently impartial; the investigation had been inadequate and dismissal fell outside the range of reasonable responses.

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