Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   394/12

 

 

 

CLAIMANT:                      Angela Frances McKenzie

 

RESPONDENTS:              1.       Board of Governors, Riverside School

                                        2.       North Eastern Education & Library Board    

 

 

 

DECISION

 

The decision of the tribunal by a majority is that the claimant was unfairly dismissed.

 

 

Constitution of Tribunal:

 

Chairman:              Mrs Ó Murray

Members:              Mr R Gunn

                              Mrs V Walker

 

 

Appearances:

 

The claimant was represented by Mr B Harron of the Irish National Teachers Organisation.

 

The respondent was represented by Mr A Sands, Barrister-at-Law, instructed by the Education and Library Boards Solicitor.

 

 

The Claim

 

1.       The claimant claimed constructive dismissal alleging that the respondent breached the implied term of trust and confidence due to a series of events culminating in a last straw event on 5 December 2011.  The respondent denied dismissal.

 

The Issues

 

2.       The issues for the tribunal were as follows:

 

          (1)    Was there a breach of contract in the form of a breach of the implied term of trust and confidence in that the behaviour alleged, which culminated in a last straw event on 5 December 2011, cumulatively amounted to such a breach of contract?

          (2)    Was the breach of contract sufficiently serious to warrant the claimant treating herself as dismissed?

 

(3)    Did the claimant resign in response to the breach and not for some other unconnected reason?

 

          (4)    Did the claimant delay too long in resigning and should she therefore be deemed to have waived any breach of contract?

 

(5)        If successful, did the claimant fail to mitigate her loss?

 

Sources of Evidence

 

3.       The tribunal heard evidence from the claimant on her on behalf.  For the respondent the tribunal heard from Mr Colin Ward the current principal of the respondent’s school and Mrs Barbara Black one of the school governors at that time.  Mrs Black is now Chair of the board of governors.  The tribunal also had regard to the documents to which it was referred during the hearing.

 

The Law

 

4.       The case of Western Excavating – v-  Sharp Limited 1978 IRLR 27 outlines the four key elements of constructive dismissal which the claimant must prove as follows: -

 

(i)     there must be a breach of contract by the employer;

 

(ii)    the breach must be sufficiently serious to justify the employee resigning;

 

(iii)    the claimant must leave in response to the breach and not for some other unconnected reason; and

 

(iv)   the employee must not delay too long in terminating the contract in response to the employer’s breach as otherwise she may be deemed to have waived the breach of contract.

 

5.       As regards the delay point there is no fixed time within which an employee must make up her mind to resign in response to a breach of contract; the surrounding circumstances are key.

 

6.       Under the “last straw” principle, an employee can be justified in resigning following a relatively minor event if it is the last in a series of acts, one or more of which, amounted to a breach of contract, and cumulatively the acts amounted to a sufficiently serious breach of contract to warrant resignation amounting to dismissal. 

 

7.       The case of Malik [1997] 3 All ER 1 confirms that there is an implied term in the employment contract that the employer will not conduct itself in a manner likely to damage the relationship of trust and confidence between the employer and the employee.  If the employer breaches that term, it can amount to repudiation of the contract.

 

8.       Breach of the implied duty of trust and confidence and the “last straw” principle are dealt with in Harvey on Industrial Relations and Employment Law Division 1 from paragraph 429 onwards.  The principles derived from Harvey which are relevant to this case are as follows:

 

          (1)    The implied term that an employer should not undermine trust and confidence is potentially of wide scope.  It can include extremely inconsiderate or thoughtless behaviour and an example given by Harvey is that refusing to investigate a complaint promptly or reasonably can fall into this category.  It involves conduct of the employer which causes serious damage to the employment relationship. 

 

          (2)    Prompt redress of grievances is of fundamental importance so being dismissive of a grievance can amount to breach of the implied term.

 

          (3)    The last straw relied upon does not of itself have to be a breach of contract.  It must however contribute to the breach of contract.  The question is whether the cumulative series of acts taken together amount to breach of the implied term. 

 

          (4)    If a breach of contract has occurred the tribunal must then look at whether it is sufficiently fundamental by looking at the impact of the breach on the relationship between the parties.

 

          (5)    On the issue of waiving the breach, the claimant must have made up her mind soon after the conduct complained of.  In relation to the length of any delay, there is no fixed time within which a claimant must make up her mind: it depends on the circumstances including the employee’s length of service and the nature of the breach.

 

Findings of Fact and Conclusions

 

9.       The respondent’s school is a school which caters for children with special needs.

 

10.     The claimant specialised in the teaching of children with Autistic Spectrum Disorder (ASD) and she was instrumental in setting up a specialist class within the school to deal with children with ASD.  The class was called J4.

 

11.     At the time relevant to these proceedings there were four children in the claimant’s class and there was the claimant, as teacher, and two classroom assistants (CAs).  The claimant job-shared with another teacher who was the teacher in the class on the days in the week when the claimant was not at work.

 

12.           It was common case that the children in the claimant’s class could display challenging behaviours which could cause a risk to the safety of themselves, other children or staff.  It was also common case that the behavioural issues were escalating in the period leading up to the summer of 2008 and, in particular, that one child (whom we shall call “X”) had behaviour which was becoming increasingly more difficult to deal with.  This led to the claimant, her job-share teacher and one of the two CAs writing to the principal in March 2008 indicating their concerns about the potential danger in the class due to the increase in serious incidents and asking that the issue be addressed specifically in relation to staffing levels.

13.     The problems with X had become so severe in the summer of 2008 that he was sent home early from a Mencap Summer Camp as they could not deal with his behaviour and he was moving from part-time towards full-time residential care in a specialist residential unit at Rainbow Lodge.

 

14.     It was common case that X’s behavioural issues were exceptional and were getting worse. 

 

15.     At the Board of Governors meeting on 18 September 2008 it was noted that the Governors were fully aware of the significant deterioration in X’s behaviour during the summer holiday and records their:  “... grave concerns about many aspects of risk in this case.”.

 

16.     On 9 October 2008 the chairman of the Board of Governors wrote to the Chief Executive of NEELB setting out the difficulties including the issue of X’s behaviour and indicating that his behaviour was causing such a risk on that day that the school had to ask the residential care home to send someone to bring him out of school early.  The home sent a taxi and: “two large male adult escorts arrived with a harness to take him from school”. 

 

17.     On 13 October 2008 a meeting took place about X’s behaviour.  The claimant was not at that meeting but the principal and VP were at it.  In the notes it is noted that:  “It would be useful for school to have a male member of staff as the additional support”.  This referred to support in the classroom.

 

18.     In response to the concerns raised by staff about the escalating behaviour the governors and management sought additional funding for another CA who was appointed in October/November 2008.  They also asked the Children's Challenging Behaviour Service (CCBS) to be involved.  CCBS was a relatively  new organisation which provided a service whereby it would assess children displaying challenging behaviours with a view to coming up with a plan, underwritten by a psychologist, setting out how to deal with different levels of challenging behaviour.

 

19.     Adjoining the classroom was a “chill-out room” where the claimant (prior to September 2008) had placed X, on occasion, to enable him to calm down when he displayed some of the extreme behaviours.  On occasion the claimant used a lock on the door to ensure that X could not leave the room until he had calmed down.  This had been done by the claimant with the knowledge of the school principal Mrs Rankin who agreed with her approach.  The claimant was never admonished or disciplined in relation to her use of the chill-out room.  Mrs Rankin’s view later changed so that by September 2008 she no longer agreed with that approach.

 

20.     There were various terms used by the parties namely 'timeout', 'chill-out' and 'seclusion' and in this decision we will use the term 'seclusion' for the concept of keeping a child in a chill-out room against his will whether by locking the door or by holding it closed as a method of dealing with challenging behaviour.

 

21.     In view of the escalating problems with X and with another child in the class, the claimant had discussions with Mrs Rankin in the summer term of 2008 and it was agreed that padding would be put in the chill-room over the summer to minimise the risk of a child harming him or herself when in the room.

 

22.     When the claimant returned to work in September 2008 she found that the padding had been installed in the room but the lock had been removed from the door and the door now swung outwards.  In addition an observation window had been put in the door instead of a spy hole.  The net effect of the change was that the only way to keep the door closed was for a member of staff to stand against it.  The claimant was not strong enough to do this with X.  This is how the claimant found out about Mrs Rankin’s change of approach to the use of seclusion.

 

23.     On 18 February 2009 it was agreed by all sides that a very serious incident took place when the claimant was assaulted by X.  The claimant felt that she had narrowly avoided serious injury.  She was in fact injured and took a day off work.  In response to the incident a second teacher was put in place to assist.  The claimant, through her trade union representative, also requested that a risk assessment be carried out so that strategies could be devised to deal with the ongoing problems with the behaviour of X in particular.

 

24.     At the meeting between the claimant and Mrs Rankin on 19 February 2009 after the incident, the claimant made clear her view that the third CA who had been appointed should be changed.  The claimant had previously made clear to Mrs Rankin on several occasions that she was dissatisfied with this additional classroom assistant because she had no more physical ability to deal with X than the claimant had and was therefore no additional help to her in dealing with the extreme behaviours that X was displaying on an ongoing basis.  

 

25.     The claimant on 19 February 2009 had asked Mrs Rankin if D (a male classroom assistant from another class) could move into her class and she was told that he could not.  The claimant was told that there would have to be an interview process for any such post and that if D was moved he would have an unfair advantage in any subsequent competition.  The reason the claimant had asked for D to be moved in was because she knew that D would have the physical strength to deal with X.

 

26.     On 25 February 2009 Mr Ward (who was at that stage the Vice-Principal) carried out observations in the class with a view to carrying out a risk assessment.  Ultimately the risk assessment was never completed but Mr Ward wrote a brief report on his observations.

 

27.     The report done by Mr Ward essentially laid the blame on the claimant for any behavioural issues which had been raised.  Specifically Mr Ward strongly criticised the claimant’s teaching methods and her management of the class and concluded that the reason for the behavioural issues was because of deficiencies in the claimant’s teaching and management.  Mr Ward’s assessment led to him recommending to the principal, Mrs Rankin, that the claimant be removed from the class.  At no stage was the claimant told about this adverse assessment.

 

28.     On that same day (25 February 2009) the psychologist Dr Bankhead of the CCBS was in the classroom carrying out the necessary assessments in order to compile the CCBS plan.  The CCBS plan included as one option that child X could be kept in the chill-out room against his will by holding the door.  Dr Bankhead therefore included in the plan the option of seclusion.

         

29.     The second teacher was removed the week after the observation.  This led to the claimant going off sick as she felt she could not return until more measures were put in place to safeguard the safety of her, the children and the other staff. 

 

30.     On the 12 March 2009, the CCBS plan was put to all staff except the claimant and one classroom assistant, and those staff signed up to the plan. 

 

31.     The claimant and one of the CAs had a meeting with management and Dr Bankhead about signing the plan on 19 March 2009.  It is clear from the evidence that the claimant had concerns about the plan and whether it would work given her experience with X.  Her particular concern was about implementing the seclusion element of the plan in the absence of someone who was strong enough to hold the door of the chill-room closed when required. 

 

32.     The second classroom assistant had two meetings with Mrs Rankin and signed up to the plan on 20 March 2009 being the Friday before the implementation of the plan on Monday 23 March 2009.

 

33.     The claimant gave unchallenged evidence to us that the other staff who signed up to the plan were aware that the decision had been taken to move D from the other class in place of the other CA.  The claimant was not told at her meeting on 19 March 2009 that D could be moved despite the fact that he was actually moved on the 23 March 2009.

 

34.     Mr Ward could not help us with any evidence on the date it was decided to move D nor on the reason for that decision.  We all found his evidence implausible on this point given his heavy involvement in this issue before that.  We therefore had no evidence before us other than the claimant’s uncontested evidence about the other staff signing the plan because they knew D was being moved.  As the plan was being implemented on 23 March 2009 the latest date on which that decision to move D was made must have been Friday 20 March.  We do not understand why the claimant was not told that D was being moved as this met her major concern that she needed someone strong enough in the classroom to hold the door closed to the chill-room when it would be required to deal with X’s extreme challenging behaviour.  We accept the claimant’s evidence that the final CA to sign only did so because she had been told that D was moving.

 

35.     The claimant received a letter from Mrs Rankin dated 23 March 2009 advising her that it had been decided to move her from her class because she had failed to sign the plan.  The detailed letter makes no reference to the fact that it had been decided that D was moving into the class and he had in fact moved on the date the letter was sent.  We find this omission very surprising and significant given that this was something that the claimant had specifically requested from Mrs Rankin only a few weeks before.

 

36.     From the evidence above, we infer and find that the reason the claimant was not told that D was being moved was in case she might reconsider her decision and sign the plan as the decision to move D would have been crucial for her in so doing.  We do not accept that the reason the claimant was moved from J4 was because she did not sign the plan.  We find that the reasons for the claimant's removal from J4 were firstly, her opposition to Mr Ward and Mrs Rankin and her views on seclusion and secondly, Mr Ward’s adverse assessment of her abilities as a teacher in his observation on 25 February.

         

37.     The claimant raised a grievance which was investigated by Mrs Black and was not upheld.  The claimant’s grievance letter is dated 22 April 2009 and refers to the following matters: the inconsistent and ineffective approach by both members of management (ie Mrs Rankin and Mr Ward) to the use of time-out; the appointment of an inappropriate CA; the failure to carry out an appropriate risk assessment; requiring that the CCBS plan be signed without sufficient discussion; the delay in the CCBS plan; the ongoing risks of physical danger; the removal of the claimant from the class.  The redress requested included: an acknowledgement that the situation was not addressed quickly or effectively and that the claimant’s experience was not adequately recognised; written policies addressing how staff could raise concerns effectively and a policy agreeing methods of behaviour management for pupils with extreme needs.

 

38.     Mr Ward’s comments recorded in his report following his observation of the claimant in the classroom, were repeated and expanded upon in the course of his statement to Mrs Black as part of the grievance procedure.  Mr Ward stated as follows:

 

                  “In my assessment Mrs McKenzie was the significant risk in the classroom, as her ineffective teaching, classroom management, and approach to managing pupils with challenging behaviour increased the likelihood of aggression.

                  …

                  It was Mrs Rankin’s decision to remove Mrs McKenzie from J4, but one which I fully supported.  In fact following my risk assessment I recommended this action.

                  …

                  My risk assessment analysis highlighted that Mrs McK created many of the  risks by her teaching methods and classroom management.  The classroom environment has been significantly safer since Mrs Marshall began teaching in class full-time and the CCBS plan was implemented.”

 

39.     Mr Ward’s strongly-worded comments indicated that the behaviour of X stemmed from the claimant’s ineffective teaching and management.  This assessment ignored the fact that X was found by the school to be exceptionally difficult to manage and ignored the fact that two outside specialist agencies, namely the Mencap Summer Camp and Rainbow Lodge, had found his behaviour exceptionally difficult.

 

40.     At the heart of the dispute between the claimant and Mr Ward was the use of seclusion as one method of dealing with difficult behaviour.  In evidence to us Mr Ward stated categorically that locking a child in a room is never appropriate in any circumstances, is unnecessary and is in fact “illegal” under the British Institute for Learning Difficulties (BILD) guidelines.

 

41.     The written policy of the school lists the use of a locked door as one of three methods of dealing with difficult behaviour as listed by BILD guidelines.  When Mr Ward was directed to that part of the written policy, he qualified his earlier evidence to say that this method of physical intervention could only be used in an emergency situation where it was unplanned and only after it had been approved in a plan by a psychologist.  Mr Ward therefore changed his evidence to us on this matter and this tainted his evidence for us.  The tribunal as a whole therefore found Mr Ward’s evidence unsatisfactory and contradictory in relation to the school policy.

 

42.     In Mr Ward’s view it was never appropriate to use seclusion.  On a reasonable reading of the school policy we find that seclusion (including the use of a locked door) was available as a method of intervention.  In practice, this was what had happened in the claimant’s class without her being told that she was doing anything wrong until the period after September 2008 when she was told that that could not be used.

 

43.     The claimant’s internal appeal to the Board of Governors Panel was not upheld and the claimant exercised her contractual right of appeal to a Labour Relations Agency (LRA) external panel.

 

44.     The LRA panel looked at whether the processes and procedures were adequately followed and upheld her appeal.  Essentially the LRA criticism was of the whole process, namely the investigation and the internal appeal.  The LRA found that the issues raised by the claimant in her grievance had not been adequately explored and tested due to the deficiencies in the procedures and processes that had been adopted and carried out. 

 

45.     The LRA panel made several recommendations but it was recommendation 3 which was key to the case before us.  Recommendation 3 stated as follows:

 

                  “To facilitate an effective return to work by Mrs McKenzie, and to overcome the loss of trust and confidence that the process to date has evidenced on both parties (management and Mrs McKenzie) serious consideration should be given to a process of mediation to address outstanding issues of concern”.

 

46.     The recommendation for mediation was therefore to facilitate the claimant to return to work and to address outstanding issues.

 

47.     The claimant had gone on maternity leave in November 2010 and this meant that the mediation could not begin until her return from maternity leave.  We do not find there to have been undue delay in the setting up of mediation in these circumstances.

 

48.     The claimant was due to return to work on 23 November 2011 and received a letter  dated 9 November 2011 from Mr Ward (who was then principal) advising her of the class that she had been allocated which was not the ASD class.  We find it odd that there was no reference in that letter to the fact that the mediation was in the offing particularly as one of the main reasons for the mediation was to facilitate the claimant’s return to work. 

 

49.     The claimant interpreted the letter as a continuation of the school ignoring the matters which remained outstanding between them and she felt that mediation would make no difference.  She was minded to resign at that point but was persuaded not to by her union as the purpose of mediation was to discuss any outstanding problems between the parties.

 

50.     The claimant’s outstanding issues to be dealt with at the mediation were as follows:

 

          (1)    That she had been treated differently to the other staff in relation to signing the plan because she did not know that D was coming to her class and this would have addressed the major issue she had with the implementation of the plan.

 

          (2)    That the substantive grievance needed to be dealt with.  That grievance related to, amongst other things, the inconsistent approach in the school to time-out/seclusion and moving the claimant from her class.

 

(3)        That Mr Ward should withdraw his comments about her teaching abilities which she first became aware of when she saw them in the course of the LRA appeal process.

 

51.     The respondent’s witnesses indicated that in their view the outstanding issues to be dealt with at the mediation were in relation to facilitating the claimant back to work in terms of the class that she was assigned to and in terms of ensuring that there was reconciliation with other staff who had been hurt by comments made by the claimant during the grievance process.  The respondents indicated that they wanted to “draw a line in the sand” and move on and made it clear to the tribunal that in their view there was nothing outstanding in relation to the substantive grievance. 

 

52.     The respondent indicated to us that it accepted the report and recommendations of the LRA panel but Mrs Black in particular did not agree with some of the findings.

 

53.     A mediation meeting was arranged for 5 December 2011.  At the first plenary meeting of the parties on that day, Mrs Black and Mr Ward read prepared statements to the claimant and the claimant read her prepared statement to them.  There was then a coffee break (of approximately 20-30 minutes) for each side to consider their response to the statements and a second plenary meeting took place which the claimant opened by giving her reaction to the statements made by the respondents.

 

54.     Mrs Black made it clear to the claimant at the meeting that she did not want to discuss the substantive grievance as her view was that the grievance had been thoroughly investigated and thoroughly dealt with by the appeal panel and the governors wanted to move on to look to the future.  Mrs Black was at pains to tell us that she accepted the findings and recommendations of the LRA but the fact was that she did not agree with the primary LRA finding that the grievance had not been thoroughly investigated.  We find that it was unreasonable for Mrs Black to maintain at the mediation meeting that she would not discuss the substantive grievance issues in the light of the LRA findings.  The outstanding grievances should have been part of the discussions at the mediation and we can understand why the claimant took grave exception to Mrs Black’s stance.

 

55.     One of the statements which the claimant took exception to in Mr Ward’s mediation statement was his response to the LRA recommendation that the school review guidance on conducting investigations and record keeping.  He stated as follows:

 

                  “The school and the governors have always followed the procedures laid down by the NEELB for conducting investigations and appeals.  If a similar situation arises again the school will seek further advice from the NEELB and LRA when carrying out any investigation and appeal.”

 

56.     The claimant took this to mean that Mr Ward did not accept that there was anything wrong with the way her grievance had been dealt with.  Mr Ward in evidence to us stated that this was an acceptance that things had not been done properly but would be done properly in the future.  We do not accept the interpretation put forward by Mr Ward.  The statement clearly indicates that the school and governors felt they had done nothing wrong and this was borne out by the discussion which followed in the second plenary session in the mediation. 

 

57.     Mr Ward’s attitude in this regard was underscored by the following statement in his mediation statement.

 

                  “I believe the issue was not that the policy or legal position was not clear, it was that Mrs McKenzie disagreed with it and wanted to adopt a different approach”.

 

58.     This statement ignores the following clear recommendations and findings by the LRA panel in relation to the use of seclusion: 

 

          (1)  “The fault is rather the lack of securing and implementing an agreed understanding of what to do and when”. 

 

          (2)    “It is clear to the panel that inconsistent perceptions like this require urgent discussion and agreement for an appropriate way ahead”.     

 

          (3)    “The school should consider how best to communicate clear advice on the policies adopted in the school to be followed by staff, and confirm the legality of the positions adopted as necessary”.

 

59.     Mr Ward made it clear that he was not prepared to discuss his comments which had been in the risk assessment and in his statement in the grievance procedure.  In evidence to us he stated that he did not predict that these might be issues for discussion at the mediation meeting.  We do not find it credible that Mr Ward did not predict that his comments might be an issue for the claimant at the mediation. 

 

60.           Mr Ward made clear to the claimant at the mediation meeting that he stood over his comments but that he was willing to discuss the assessment when the claimant returned to school.  For the claimant this was a key issue to be thrashed out during the mediation as it struck at the heart of her competence and ability as a teacher.

 

61.           We find unanimously that it was not unreasonable for the claimant to seek clarity over the precise policy to be adopted and that she would require the necessary tools (namely a strong enough CA) in order to implement the form of seclusion recommended by the plan which involved holding the door of the chill-out room to keep X in when necessary.

 

Conclusions of the Majority

 

62.     The majority of the tribunal find that it was unreasonable of Mr Ward to adopt the position he did in the mediation and can fully understand why the claimant reacted so badly to his implacable refusal to discuss matters which were key for the claimant.

 

63.     The majority finds that the mediation came to a halt because of the intransigence of Mr Ward and the unreasonable stance taken by Mrs Black.  The respondents alleged that they wanted to draw a line and move forward but required the claimant as part of the process to accept the authority of the principal, the validity of school policies and that she had caused hurt to others and would have to reconcile with them.  This added insult to injury in circumstances where the heart of the dispute was over the unclear policy on seclusion and over the moving of the claimant because of an undisclosed adverse view of her abilities.  The LRA panel had found that the policy was unclear and the claimant had practised seclusion with the full knowledge of Mrs Rankin.  The CCBS plan also allowed for seclusion in some circumstances. 

 

64.     The claimant left the mediation and decided that day that she would have to resign as she could no longer work with Mr Ward as the trust and confidence had gone given his view of her abilities as a teacher in the context of the events of the previous few years. 

 

65.     She contacted her trade union representative that afternoon on the 5 December 2011.  Her TU representative persuaded her to think it over given the gravity of the step she intended to take and she took that advice in order to be sure of her decision.  Given the imminence of the Christmas holidays she decided not to send a letter to the school as it would sit over the holidays and sent the letter on 1 January 2012.  In these circumstances the majority of the tribunal finds that the three-and-half week gap between the last straw event and the letter of resignation was not unreasonable as it was reasonable to consider trade union advice and the Christmas holidays intervened.  There was no gap between the last straw and the actual decision to resign.  The claimant was a teacher of 18 years' standing and we can therefore fully understand why she took some time to consider taking the drastic step of resigning. 

 

66.     Essentially the claimant started out as someone who was raising legitimate serious concerns, and the respondent’s reaction to her concerns was to categorise her as the sole problem.  This led the respondent to move the claimant out of her class without confronting her with her alleged deficiencies and without telling her that one of her major concerns was to be addressed by the moving of D into the class.

 

67.     The relationship seems to have foundered on the issue of the appropriateness and legality of the use of seclusion whether by the use of a lock or by someone holding a door closed.  We wish to make clear that we express absolutely no view on whether seclusion is appropriate or not for use in a school.  The key facts for us in this regard are the following:

 

          (1)    The policy of the school was, at the very least, unclear and this was a major finding of the LRA panel. 

 

          (2)    The claimant had used seclusion in the past with the knowledge of the principal who agreed with its use.

 

          (3)    The use of seclusion was sanctioned by the CCBS plan.

 

          (4)    Seclusion was in fact successfully used after the plan came into effect.  The appointment of D seems to have been important to the plan’s success.

68.           The reasons given by the claimant for her resignation in the  letter of 1 January 2012 can be summarised as follows:

 

          (1)    The Governors' stance that the claimant's treatment in the grievance procedure was correct and that the LRA findings were therefore incorrect;

 

          (2)    the refusal of Mr Ward to discuss his adverse report on the claimant;

 

          (3)    the continued attitude of Mr Ward that the claimant alone was the problem in the class;

 

(4)        the refusal of the governors to address issues objectively;

 

(5)        a lack of support from management meant that the claimant's health and health and safety would be at risk in the future.

 

69.     In summary the majority of the tribunal finds that the facts reflected in the summary set out at paragraph 68 (1) – (4) above, cumulatively amounted to a fundamental breach of the implied term of trust and confidence.  The breach was sufficiently serious that it justified the claimant resigning in response.  The following circumstances are also relevant to that conclusion:

 

           (1)   removing the claimant from her class in circumstances where she was not told that D was moving into the class when management asked her to sign the CCBS plan when they knew that this would meet her key concern about implementation of the plan;

 

         (2)    using the non-signing of the plan as cover for removing her from her class when this was really motivated by her challenge to Mr Ward and Mrs Rankin on the ability to use seclusion and because of the undisclosed adverse report by Mr Ward on her abilities as a teacher;

 

          (3)    the implacable and unreasonable refusal by Mrs Black and Mr Ward to discuss the key issues in the mediation thus ignoring the LRA panel findings and recommendations in the knowledge that these were key for the claimant in facilitating a return to work.  Against the background of the facts set out above, this was the act which amounted to a last straw. 

 

70.     The claimant’s contract allowed for an appeal to the independent LRA panel.  One of the LRA panel’s main recommendations was for mediation to deal with outstanding issues.  The respondents’ failure to let the mediation deal with the outstanding issues amounted to a breach of the implied term of trust and confidence.  This was a fundamental breach as one of the outstanding issues between the parties related to the claimant's ability and competence as a teacher.  The actions of the respondents (in the form of Mr Ward and Mrs Black) in the mediation therefore amounted, of themselves, to a fundamental breach of contract in addition to being a last straw.  The breach was fundamental because it struck at the heart of the contract as it essentially maintained the stance that the problem was the claimant’s ability and competence as a teacher and thus continued to ignore the fact that outside agencies had found the behaviour of X to be exceptionally demanding, warranting exceptional interventions.

 

71.           The claimant did not waive the breach and did not delay too long in resigning.

 

Conclusions of the Minority

 

72.     The minority member of the tribunal finds that the mediation was halted by the claimant and could, had it run its course, have moved the parties from their entrenched positions.  The minority member finds that the claimant was unreasonable in walking out of mediation because she was involved in an independent process that could have moved the parties closer together.  The minority member finds that the unreasonable stance of Mrs Black and the refusal of Mr Ward to discuss his views of the claimant as a teacher did not amount to a  breach of contract at that time.  Neither the respondents nor the claimant appeared to have taken on board the comments of the LRA panel that mediation should restore trust and confidence on both sides.  That was understandable at that early stage of the mediation process.

 

73.     The minority of the tribunal finds the gap between the alleged last straw and the resignation to be too long.  It was reasonable for the claimant to take some time to consider her response on the failed mediation on 5 December.  The claimant  obtained advice from her trade union on 5 December and it should not have taken three-and-a-half weeks for her to decide to send her letter of resignation.  The point about the school closing for Christmas could not have impacted on the claimant’s capability in making her decision to resign nor did it impact on the practicability of the postal delivery of her letter of resignation.

 

Remedy

 

74.     The tribunal will reconvene, if necessary, for a remedies hearing as further detailed  information will be necessary on mitigation of loss and precise pension loss figures must be provided by both sides.

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:     30 July to 1 August 2012, Belfast.

 

 

Date decision recorded in register and issued to parties: