Claim against CCMS successfully defended in the Industrial Tribunal
The Board of Governors of St Patrick’s Primary School (1)
The Council for Catholic Maintained Schools (2)
By Lisa Sturgeon
Napier and Sons was recently successful in defending a claim for CCMS and the Board of Governors of St Patrick’s Primary School, Derrygonnelly. The Claimant in this matter, Amy Montague, had been employed by the first named Respondent as a temporary teacher, both on a fixed term basis and on a daily basis, for various periods between 28th August 2012 and 22nd August 2014. She was then employed from the end of August 2014 on a 12 month fixed term contract until 31st August 2015. Her employment ended on that date.
The first named Respondent was a small Primary School which operated under the guidance of the second named Respondent.
On the termination of her employment, the Claimant brought the following claims against both the first and second named Respondent:
- Unfair dismissal, contrary to the Employment Rights (Northern Ireland) Order 1996.
- Public interest disclosure detriment (“whistleblowing”), contrary to the Employment Rights (Northern Ireland) Order 1996.
- Age Discrimination, contrary to the Employment Equality (Age) Regulations (Northern Ireland) 2006.
There was no claim of unlawful fixed term worker discrimination, contrary to the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002. It should also be noted that the Claimant withdrew her unlawful age discrimination claim shortly before the hearing commenced.
In May 2014, the Respondent advertised two positions, one a permanent full-time position and one a temporary one-year full-time position. The Claimant applied for both positions and was successful in obtaining the temporary full-time position for one year from 1st September 2014 to 31st August 2015.
On 2nd October 2014, the Claimant wrote to Garry Smyth, the Chair of the Board of Governors,
confirming that she wished to raise a grievance and was provided with a copy of the grievance
procedure. Her grievances were documented in a letter dated 6th November 2014.
The Claimant was invited to attend a meeting to discuss her grievance on 17th December 2014. This meeting was chaired by the Chair of the Grievance Sub-Committee. Also in attendance were two other members of the Grievance Sub-Committee.
The Claimant advised that she had prepared a submission and a set of supporting documentation and she duly provided the Grievance Sub-Committee with copies of the supporting documentation. The members of the Grievance Sub-Committee listened carefully to the submissions put forward by the Claimant and noted all of the supporting documentation.
Thereafter, the Grievance Sub-Committee arranged further meetings with other individuals, as part of the grievance investigation, from January to March 2015.
By letter of 28th April 2015, the Grievance Sub-Committee notified the Claimant of their decision in respect of her grievance hearing. The overall decision of the Grievance Sub-Committee was that the Claimant’s grievance was not upheld.
The Claimant was offered the right of appeal in respect of her grievance and, by letter of 27th May 2015, the Claimant exercised her right to appeal under the grievance procedure. The outcome of this grievance appeal was communicated to the Claimant on 27th November 2015. The Claimant was given a further right of appeal to the Labour Relations Agency but she chose not to exercise that further appeal. In any event, the Claimant alleged at a CMD, held on 7th January 2016, that she had not received the outcome of the appeal despite it being sent to her by recorded delivery in November 2015.
The Case Management Discussion was heard in this case on 7th January 2016 and the claim was originally set down for hearing in April 2016.
However, when the Claimant exchanged her witness statement she also disclosed 3 hours of recordings. These had not been disclosed as part of the original interlocutory process. An order was therefore sought for a transcript of those recordings.
When the transcripts were disclosed, a Pre-Hearing Review was sought to deal with the admissibility of the recordings. This Pre-Hearing Review was heard on 13th May 2016 and it was determined that the transcripts were admissible in evidence, despite none of the parties being aware of the fact that the transcripts had been recorded.
The case was eventually heard from 30th June 2016 until 5th July 2016. At the conclusion of the evidence, written submissions were exchanged on Friday 8th July 2016.
The Claimant gave evidence on her own behalf. She did not call any other witnesses to support her case.
On behalf of the Respondents, the Tribunal heard evidence from Mr Donal Cox of the Board of Governors, Mr Garry Smyth, Chairman of the Board of Governors, Ms Cathleen Gallagher, Vice Principal and Ms Eileen Glynn, Principal.
The outcome of this case was that the Claimant’s claims were unanimously dismissed on all counts.
In terms of the unfair dismissal aspect of the case, the Respondent argued that the dismissal was due to a combination of funding difficulties and the temporary nature of the contract. The Tribunal held that, because the teaching staff was due to be reduced by one, this was actually a redundancy situation as the requirements of the school had diminished. It was therefore a clear temporary fixed term contract where both contracting parties knew that it would end automatically on 31st August 2015 and where there had been no provision for, and no reasonable expectation of, renewal or extension. The Tribunal held that to arrange a selection process, with a selection group and selection criteria for the redundancy, would have been entirely artificial and would have ignored the reality of the situation. The Tribunal stated that the dismissal “must be considered against a backdrop of reality and common sense”. It must be determined having regard to all the relevant circumstances “in accordance with equity and the substantial merits of the case.”
While this case was a technical redundancy situation, the Tribunal took the pragmatic approach that redundancy steps do not automatically require it, especially when they would be taken “artificially and at unreasonable expense”.
A copy of the decision is can be found here.