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Case Study
Trade Union membership is high in educational settings and looks set to increase further in all organisations when the Employment Rights Bill comes into force. The case of Wood-Hope v Salford City Council & the Governors of Friars Primary School shows us how not to treat staff who take on duties as a trade union representative.
Ms Carmen Wood-Hope (“the Claimant”) started work at Friars Primary School in 2014. In 2017, she became the school’s National Education Union (NEU) representative.
A complaint was made against the new Deputy Head, and the Claimant attended the grievance meeting as the TU rep supporting the complainant (and not Mr Earnshaw). A year or so later, he became the Head Teacher, and further complaints against him arose. There was concern amongst staff about his plan to instigate impromptu classroom observations, contrary to what had been agreed with the Union. The Claimant was therefore involved with this matter by way of her TU duties and was pushed by Mr Earnshaw to reveal the names of those who were complaining. She refused to do so and was issued with an informal warning, but without recourse to any procedure or evidence.
Several months of negotiations were held over the issue of observations, including the threat of strike action, and the Head finally agreed to provide adequate notice. He appeared angry about this and told the Claimant that there were concerns with her work. The matters he challenged her on turned out to relate to a subject she did not teach.
The Claimant’s health began to worsen, and she suffered panic attacks requiring medical attention. She was signed off for work-related stress for a brief period. During this absence, an observation then took place without advance notification, contrary to what had been agreed with the NEU. As the school’s union representative, the Claimant sought to discuss this with Mr Earnshaw on her return to work. The same day as this conversation took place, the Claimant was summoned to a meeting and Mr Earnshaw informed her that she was to be the subject of a misconduct investigation. No further information or explanation was provided.
The threat of disciplinary action was later withdrawn, and instead, a performance improvement plan was introduced. Again, no explanation was given. The Claimant did not agree to the plan and was signed off sick with work-related stress. During her absence, she raised a grievance about the misuse of a performance improvement plan as a way to exert control due to her union activities. The school ignored this and the argument that the correct procedures had not been followed. Her allegations of bullying were not upheld.
Capability hearings then went ahead during her absence, and she was dismissed. The Employment Tribunal (“ET”) later found the decision to be “self-serving” and the process managed by Mr Earnshaw to be “designed to ensure her dismissal”.
The Claimant’s appeal against dismissal failed, and she brought claims of detriment and automatic unfair dismissal for engaging in trade union activities. Based on her work-related stress, she also claimed disability discrimination and failure to make reasonable adjustments.
Case Study
The ET found that Mr Earnshaw had set the Claimant up to fail, driven by personal animosity after she challenged him in her role as union representative. This hostility continued after dismissal when he provided poor references to block her future employment. With trade union activities clearly the primary dismissal reason, the tribunal ruled it was automatically unfair.
Even if the school had shown a potentially fair reason for dismissal, the tribunal said the process was unfair as Mr Earnshaw provided a report which the tribunal said was biased, focused on Ms Wood-Hope’s professional capabilities (instead of her sickness absence) and was aimed at ensuring dismissal. The chair of governors admitted in evidence that he considered unproven misconduct allegations and adopted Mr Earnshaw’s view that the support plan was a requirement, without questioning why it had been imposed. Of further concern was the conflict of interest for members of the appeal panel to have been involved previously, and related to those who had.
In respect of the detriment claims, the ET found that placing the Claimant on a performance improvement plan and dismissing her grievance were acts designed to force her out, either by resignation or dismissal, motivated by her union activities. As such, this claim was also upheld. In particular, the ET found that the introduction of the plan caused stress and anxiety that formed the basis of her disability claims.
In respect of her disability discrimination claim, the ET found that the employer had acted in ways that worsened the condition, causing stress-related sick leave, which ultimately resulted in her dismissal. The employer had also failed to consider (and then make) reasonable adjustments, further adding to the detriment she suffered. It was suggested that the removal of the performance plan, changing the person monitoring her absence and disregarding disability-related absence caused by the employer were all reasonable adjustments. As a consequence, both of her disability discrimination claims succeeded.
The Claimant was awarded £370,563. Her compensation included, among other things:
Significant interest was also paid on this sum.
Remember that under the Trade Union and Labour Relations (Consolidation) Act 1992, those who are engaged in Trade Union activities are protected from dismissal and detriment if the reason is to deter, prevent or penalise. Activities include representation at grievance and disciplinary hearings, negotiation with management and raising collective concerns.
This case seems to have featured a really hostile relationship, and it is perhaps surprising how blatant the behaviour was. In other cases, the link may be harder to spot or the treatment more subtle. Case law tells us that identifying the employer’s main purpose is a subjective question, and trying to establish the employer’s motivation can be tricky.
To avoid allegations of this type, always be clear on what action is being taken and why. Stick to procedures and provide evidence for decisions- don’t be “selective” like this employer was. Avoid overlap between personnel involved in one matter and anything that could look like it is related– impartiality is key. In particular, do not do as the school did and allow one person’s agenda to dominate– in this case, the Head was found to have “steered” all decision-making. Look for conflicts of interest, such as governors being related to decision-makers and then being asked to chair an appeal against those decisions.
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