Teacher Employment Tribunal / Union Negligence - help please?

[lawyerhelpplease]

Oof, this is sensitive and a bit complicated. Posting on behalf of an extended family member.

Mr A was 5 years qualified, teaching at the same school for children with behavioural and emotional difficulties for those 5 years. Manual restraint a common part of the job. No concerns from management apart from minor issues, resolved as part of usual process, in year 3.

He was depressed, school were aware, strong case that school pressures were cause, no help from school. Pupil complained a restraint was too harsh, supported by another member of staff - found no case to answer. Two weeks later same pupil and member of staff again reported restraint too harsh, this time observed by other members of staff - mixed reports about whether or not this was excessive. Mr A had been started on a new medication three weeks prior, known to affect changes in mood, irritability and judgement - he had not noticed changes but others around him had (verified).

School went through process of gross misconduct, Mr A fired, referred to TRA and DBS. Began process to go to Appeal - this was not submitted in time for the deadline, so is no longer possible, largely due to Union Rep not replying in time. At the current point in time, ACAS have been notified and Early Conciliation is being considered, although there is little he is able to request. The Union have now said that they would not support (fund) a Tribunal.

Mr A would like to know legal guidance about going to Tribunal. Another family member has offered to fund the Tribunal process. Does anyone have any recommendations for employment lawyers specialising in Teaching, especially in settings where restraint techniques are a daily part of the job? Would also be interested to know if there is any way of comeback on the Union Rep for not responding in a timely manner. He is looking for the Misconduct and DBS and TRA to be withdrawn, if that is even possible. Would not plan to return to the school (possible constructive dismissal at that point?) Thank you very much for any guidance and consideration.

Forgive my ignorance but aren't the referral separate to the TRA and DBS reviews. So once something is referred to TRA that is down to them to investigate and conduct their hearing. It doesn't matter what an internal Tribunal finds. So you may not get the result that you want.

Also if he wanted to appeal why did the teacher not ensure the appeal was lodged - if not with all the details then at least an intent to appeal and was waiting on the union rep.

What outcome does the teacher hope for? Does he want to continue teaching? Is that the best thing for his mental health or would he be better moving on and finding a new path?

Should he have alerted school to the change in medication?

They should have supported him much more. I’m not a legal person but have been an employee with mental health difficulties in a school.

Was it a long term problem?

Sorry but regardless of his health, restraint has to be proportionate.

Given the first complaint, he should have been extra cautious, so for the issue to arise again suggests to me he was unreasonable.

If he wasn't coping at work he should have been off sick. I know that's not what you will want to hear.

If the union are not supporting a tribunal, then they believe it stands a less than 50% chance of success.

On the information given I would agree. Your relative was aware that he was not coping at the time, he'd been made aware of concerns as to his restraint technique, yet he did nothing to adapt his behaviour (ask for support and retraining and/ take time off work).

The union will have an internal complaints procedure which could result in the rep being removed from the role but this is unlikely based on what you've said. They could also review the decision not to support tribunal. They do this when they don't believe you'll win so unless there's new information, they will likely make the same decision.

Did he make employer aware that he wanted to appeal but due to lack of availabilty from union rep he would go past the deadline? Theres a possible argument that a reasonable employer would allow more time but, honestly, based on the allegations

I kind of agree with the others. If the medication was messing his moods up, then in terms of H and S he should really have been off sick.

@Mumdiva99 Yes that's true, he can address the TRA directly. I think that is the plan.

re the appeal being lodged - the school were aware of the plan to appeal, they were negotiating dates, then the rep was off and didn't respond in time. Mr A had been very clear that they were appealing. But ultimately the rep was negotiating with the school, no direct contact with Mr A, and the rep responded after their cut off date, at which point the school said no appeal possible.

He's not sure if he wants to work as a teacher again, certainly not for the foreseeable future. But perhaps at some point in the future, perhaps short term or cover, and in a different setting where he is not not physically attacked, bitten and punched everyday. The current gross misconduct and DBS would mean he is unlikely to be get a job with any responsibility or contact with the public in the future. He is currently doing manual labour work, in a role by himself, outdoors, and is finding this much better for now (although at half his previous salary - children to support etc) .

@ArseInTheCoOpWindow no history of depression until he started the job. Became depressed 6 months after start. Dr records record work stress as a cause. He was actively looking for other work but no luck (probable loss of confidence).

re change in meds - he was often on different meds. Wasn't in the habit of regularly telling school, but they were generally aware - referred him to employee assistance program etc. Yes arguably he should have told them about every change but most people don't.

@notagainnotagain yes of course restraint has to be proportionate. The observers give mixed views on this. It isn't about walloping a kid - it's whether he used the exact correct method of restraint as trained to be used daily. This is why it's important to speak to someone with experience of this setting. Yes he should have been extra cautious - or alternatively, the school had reassured him that his technique was appropriate according to the previous compliant. He had always been praised for his 'behaviour management'.

@notagainnotagain and yes he absolutely should have been off sick. However the stress and depression and fear of not being able to provide for his family meant he wasn't thinking clearly. Many of us weren't aware of how bad things were - I certainly would have advised him to go off sick if I'd have known.

That’s interesting. So it’s a disability, and they did nothing to support and laid him open to this.

This is a school issue. It’s negligent and is ultimately their responsibility. Did they do a risk assessment on him? If not, they’ve left themselves wide open.

@CorrBlimeyGG thanks. I'm concerned that the union, or the rep at least, now are avoiding the tribunal as it would expose their failures.
But otherwise yes I see your point. I think it would be helpful for a lawyer experienced in employment law, specifically in teaching and in settings where restraint is used regularly, to go over the case carefully and give their opinion. I think that would be helpful to Mr A going forward, whatever happens next. Does anyone have any idea how we'd find someone? Google?

If the union rep was given explicit authority to negotiate but let the time lapse out, you could appeal to HQ national office. They could then instruct an appeal to Tribunal for an extension of time. There is quite a bit of case law around bad advice / negligence of advisors. The fact that the union is not proceeding might just mean they want to cover up their negligence which would come out in a Tribunal case. To those saying the union won’t fund so they must believe less than 50% chance of winning, this is not necessarily the case either. There are usually a number of criteria for funding cases.

When did the dismissal happen?

So it’s a disability

There's a big jump from someone taking ADs to meeting the definition of a disability.

I can recommend Thompsons. I would expect the TU to have referred the case to a solicitor (in deciding whether they would support it to tribunal), it's worth asking if they did this.

@JackieCollinshasnoauthority no he didn't make the school aware that the rep had missed the deadline. At that point he felt unable to have any direct contact with the school.

@JackieCollinshasnoauthority I suppose he may eventually make use of the union complaints process, to prevent the same thing happening to anyone else at least, but that isn't his focus currently, unless it would reopen the possibility of Appeal? He would much rather that this was dealt with at Appeal than Tribunal.

@ArseInTheCoOpWindow not sure if they did a risk assessment- I'll find out

@Scottishflower65 That is very helpful, thank you, re appealing to HQ national office. Is that Union HQ? Tribunal HQ? Should we get a lawyer involved to help with that? We are so new to all this.

CorrBlimeyGG

If he’s had it for 5 years and he’s been taking medication, then l think he will be covered under the equalities act. 5 years is quite a long time

@CorrBlimeyGG Why does date of dismissal matter? Sorry, trying to limit identifying info as there is already a lot of it! But if it is to do with where in proceedings things are, I can let you know. Thank you very much for the Thompsons recommendation, and I will ask if the TU referred to a solicitor.

If it’s still in early conciliation he can still do that himself without union rep and without a lawyer. There should only be costs if it goes to court and he loses so could always pull out before that if the employer doesn’t cave in which they might do at the last minute. I’ve done this (not with teaching) and the employer gave up and paid up once a court date was announced.

I recommend this barrister. He’s had success with clients along similar lines.
www.cloisters.com/barristers/adam-ohringer/?pdf=4091

A claim for disability discrimination relies on the employer being aware the employee had a disability. Unless seen by occupational health and a report provided, I doubt that would apply.

For an ordinary claim of unfair dudmissal, payouts are pretty small.

I would focus on the TRA.

They did know he was disabled. They knew about his condition.

OH is usually involved with absences but not always with disabilities. Not in teaching ime.That’s why anyone with a MH diagnosis needs a RA.

I

And I’m certain it would apply. It covers long term disability which 5 years is.

The onus is on the employer to provide the support, not for the person to ask for it. And people with MH are not akways likely to ask.

If there is no report are OH referral it is the schools fault. They are the ones who make the referral.

I’ve been in this exact position. They’ve been negligent.