McIntosh v St Mark's Primary School

In a victimisation claim, an Employment Tribunal may find that a detriment following a protected act was caused by other aspects of the employee’s conduct rather than by the protected act itself. The question is one of the employer’s operative reason.

An appellate court must read the Tribunal’s reasons as a whole. It should not isolate a conclusion from the wider findings, particularly in a factually complex case. Reasons are sufficient where, read fairly and in context, they enable the parties to understand why the Tribunal rejected the asserted causal link and the conclusion was open on the facts.

The Claimant, formerly the deputy headteacher of the Respondent school, brought claims of direct race discrimination, victimisation and unfair dismissal under the Race Relations Act 1976. The Employment Tribunal dismissed all claims.

The Claimant had inadvertently circulated a document to staff which included a description of the headteacher as a bully and a “closet racist”. The Tribunal held that the email was a protected act and that her suspension and referral to disciplinary proceedings were less favourable treatment. It nevertheless found that those steps were not taken by reason of the protected act.

Her appeal was confined to the victimisation findings concerning suspension and the commencement of disciplinary action. She contended that the Tribunal’s reasons were perverse or inadequate, especially in light of the chronology.

1. Appeal dismissed. The Employment Tribunal’s conclusion that the suspension and referral to disciplinary proceedings were not on the ground of the protected act was adequately reasoned and was not perverse.

2. The Tribunal’s reasons had to be read as a whole, rather than by treating paragraphs 65 and 66 as an exhaustive and self-contained account of its reasoning. In a complex case involving a number of disciplinary issues, other findings could properly explain the Tribunal’s conclusion about the Respondent’s operative reasons.

3. The protected character of the attachment lay in its use of the word “racist”. The Tribunal was entitled to distinguish that allegation from other aspects of the Claimant’s conduct, including the dissemination of criticism of the headteacher, the resulting breakdown of trust and confidence, and the sensitivities within the small management team.

4. In relation to suspension, the Tribunal’s wider findings supported its conclusion that the material reason was the background pattern of difficulties and the effect of the Claimant’s conduct on working relationships, rather than the protected act. The fact that some later matters could not have influenced the suspension did not render the overall conclusion perverse.

5. The reasoning was still clearer in relation to referral to disciplinary proceedings. By then the Claimant had not withdrawn the statements, concerns had arisen about her interactions with colleagues, and she had had an opportunity to use the appropriate procedures to make a complaint. The Tribunal could conclude that the Respondent acted for those reasons and not because she had performed a protected act under the Race Relations Act 1976.

The Tribunal’s judgment was therefore upheld. Permission to appeal to the Court of Appeal was refused.

• Employment Appeal Tribunal — unanimously dismissed the Claimant’s appeal: [2014] UKEAT 0226_13_0302. Permission to appeal to the Court of Appeal was refused.
• Employment Tribunal, London (South) — dismissed claims for direct race discrimination, victimisation and unfair dismissal. The decision and reasons were sent to the parties on 8 August 2012.