12/02/2013

School dinner lady battles on in fight for justice

The law on the interrelationship between the right to freedom of expression and employee confidentiality has been clarified by the President of the Employment Appeal Tribunal (EAT), following an appeal on behalf of UNISON member, Carol Hill. The school dinner lady was sacked in 2009 after she informed a parent that she had found her daughter tied to a fence with whip marks to her leg. Earlier that day, she had taken the young girl, along with the culprits, to the head teacher.

Carol was suspended by Mrs Crabb, the head teacher of Great Tey Primary School in Essex in July 2009, and then, dismissed the following month after speaking to the press about her suspension.

An Employment Tribunal sitting in Bury St Edmunds in January 2011, found that Carol had been unfairly dismissed, but the same Employment Tribunal, at a Remedies Hearing in February 2011, took the view that Carol had contributed to her dismissal and therefore that it was right to reduce the amount of compensation that she should be awarded.

The EAT upheld all six of Carol’s grounds of appeal, and held that the Employment Tribunal had erred in law when reducing the compensation payable to Carol, and that all of the Employment Tribunal’s conclusions in relation to Remedy could not stand and must be decided anew.

Carol Hill said:

“I am delighted with the outcome. This appeal has never been about money, but about protecting the children in my care and my right to speak out about what I witnessed at school that day.

“It has been a very stressful ordeal but I feel a step closer to justice. I have been helped enormously by the support from family and friends, as well as my union, UNISON and the media who have highlighted my case.”

Dave Prentis, General Secretary of UNISON, said:

“Carol has been put through a terrible ordeal by the school and lost a job she truly loved. The value of someone being free to speak out against injustice must be upheld and this decision by the Employment Appeal Tribunal strengthens and clarifies this important principle.

“UNISON has long campaigned for staff to be able to speak up when they see wrongdoing in the workplace. This important principle was highlighted very recently in the Francis Report into Mid Staffordshire Hospital. Staff must be able to raise concerns without fear of recrimination in order to protect the people in their care.”

The EAT held that the Employment Tribunal had wrongly applied Article 10 of the European Convention of Human Rights (the right to freedom of expression), and that when making a deduction to the compensation awarded to Carol, the Employment Tribunal had adopted the wrong test and had failed to take into consideration matters which might be said in Carol’s favour.

The EAT also upheld the appeal against the Employment Tribunal’s finding that Carol had breached confidentiality. The EAT held that “the Tribunal did not clearly identify what precisely was confidential about the information that was supplied, nor second to whom it was confidential”. The EAT held that because the Employment Tribunal had wrongly approached Article 10, it may have placed more weight upon factors suggesting that Carol had been blameworthy than it would have done if it had carefully balanced Carol’s right to freedom of speech, against any matters which justified the school’s interference with that right.

The EAT was highly critical of the Employment Tribunal’s Remedies Decision and its interpretation of Carol’s right to freedom of speech saying:

“The Tribunal did not adopt the structured approach to article 10 which we consider is necessary, and instead adopted a homespun and inaccurate reflection of 10 (2), means that it may have placed more weight upon factors suggesting that the claimant had been blameworthy than it would have done if it had carefully balanced her right for free speech against the obligations to keep matters confidential to the appropriate authorities within the school so that the release of information might be sensitively controlled.”

And again:

“It is dangerous, in our view, for a Tribunal to attempt to explain in its own home spun language what are complex provisions which have been the result of careful balance in their legislative expression.”