Meredith Hurst Friday, February 22, 2013
In Hill v Governing Body of Great Tey Primary School  UKEAT/0237/12 the Employment Appeal Tribunal (EAT) considered whether a Polkey deduction had been correctly applied and whether the Employment Tribunal (ET) had approached issues of confidentiality correctly.
The Claimant was a school dinner lady with the Respondent primary school. One day during the summer of 2009 the Claimant was on duty in a school playground when she discovered that a seven year old pupil (C) had been attacked with a skipping rope by two older male pupils. During the incident, C sustained red marks on her legs and rope burns and scratches to her wrists. The dinner lady reported the incident to the head teacher. The school reported the incident to C's parents in writing, referring to it as 'a minor incident'. That evening, the Claimant spoke to C's mother at a Beaver Scout group. C's parents subsequently involved the police who investigated the incident. C's parents informed the Claimant of that the police were involved, telling the Claimant that the police may need a statement from her.
Following this the Claimant prepared a statement which she delivered to the Respondent school head teacher's secretary also providing copies for the governors of the school. The EAT found that the Claimant did not give this statement to the police. The next day the Claimant was suspended by the Respondent's head teacher pending investigation into alleged breaches of confidentiality. Following her suspension the Claimant contacted the local press to tell them that she had been suspended. The Claimant subsequently faced disciplinary charges, which alleged that she had:
- Broken confidentiality by speaking to the parents about the incident;
- Broken confidentiality by speaking to the local press;
- Acted in a manner likely to bring the school into disrepute by contacting the local press.
A disciplinary panel of governors from the school found that the three charges were proved and decided that the Claimant should be dismissed. The Claimant appealed against her dismissal however the appeal was also dismissed.
The Claimant brought an ET claim. At first instance the ET held that while the Respondent had potentially fair reasons to dismiss the Claimant the investigation and disciplinary process which they had followed was unfair. The ET found that the investigation was unfair because it had been carried out by the head teacher who was 'intrinsically involved' in the events. In addition the head teacher reported to the governors who sat on the disciplinary panel with a recommendation that the Claimant be dismissed. The ET found that this recommendation was likely to have an 'undue adverse effect' against the Claimant. In addition the ET found that the investigation was not as thorough as it might have been and that it was inappropriate for governors at the school to conduct the disciplinary hearing. Finally the ET found that the disciplinary panel was not impartial.
At the remedies hearing the ET found that the Claimant would have been dismissed fairly after two months if proper procedure had been followed and that the compensation for that two month period should be reduced by 80% on account of the Claimant's contributory conduct. The Claimant was awarded just over £300 in back pay and £49.99 in compensation.
The Claimant appealed arguing that the ET took an erroneous approach to making a Polkey deduction and in addition that the ET approached the issue of confidentiality by applying its own paraphrase of the qualifications to article 10 of the ECHR (Freedom of Speech) rather than using the legislative words. The EAT upheld the Claimant's appeal. It found that the ET did take an erroneous approach to making a Polkey deduction and that in relation to confidentiality it should have adopted a structured approach rather than using its own paraphrase of the qualifications to article 10 of the ECHR. The EAT found that this might have affected the assessment of contributory fault. The EAT remitted the matter to the Employment Tribunal to decide how much compensation the Claimant should be awarded.