Ngwenya v Cardinal Newman Catholic Secondary School

Where disciplinary charges allege that an employee made complaints in bad faith, an Employment Tribunal need not make a separate finding of the employee’s actual state of mind. It must determine whether the employer genuinely believed, on reasonable grounds following a fair process, that the misconduct alleged had occurred.

A Tribunal is not at fault for failing to address a comparative-treatment point which was not advanced as a material issue. In any event, differential treatment does not show unfairness where the employees’ circumstances are materially different.

A teacher was dismissed for gross misconduct after the school found that he had made unfounded allegations of racial discrimination maliciously, vexatiously, frivolously and in bad faith. The dismissal was upheld internally on appeal.

The Employment Tribunal at Huntingdon dismissed his unfair-dismissal claim. It found misconduct to be the reason for dismissal, the investigation and disciplinary process fair, and dismissal within the range of reasonable responses.

On appeal, the teacher contended that the Tribunal had failed to address bad faith and had failed to consider allegedly inconsistent treatment of another teacher. The central issues were whether either omission disclosed an error of law.

1. Appeal dismissed. The Employment Tribunal was entitled to uphold dismissal for misconduct.

2. The disciplinary charges expressly alleged that the complaints, including allegations of racial discrimination, were vexatious, malicious or frivolous and had been made in bad faith. That formulation required the disciplinary decision-makers to consider the employee’s motive and purpose.

3. The Employment Judge adequately addressed that issue. The school had considered the surrounding circumstances, correspondence, the employee’s language and other material bearing on motive. The Judge was entitled to conclude that the school genuinely believed, on sound factual grounds and after a fair process, that the complaints had been made maliciously, vexatiously or frivolously and in bad faith.

4. The Judge did not have to make an additional, independent finding that the employee had in fact acted in bad faith. His task was to determine whether the employer was entitled to reach its disciplinary conclusion. The finding that the misconduct destroyed the employment relationship also made it unnecessary to determine the school’s alternative case of some other substantial reason under Employment Rights Act 1996.

5. The comparative-treatment point had not been raised or pursued as a material issue before the Tribunal. It was therefore not an error for the Judge to omit express reasons on it. Further, the point could not have affected the result: the other teacher promptly retracted and apologised for one email, whereas the employee persistently made numerous allegations against several members of staff and never retracted or apologised.

• Employment Appeal Tribunal: Appeal dismissed: [2015] UKEAT 0308_14_0806.
• Employment Tribunal, Huntingdon: The unfair-dismissal claim was dismissed by Employment Judge Adamson following a hearing in November 2013. A reserved judgment was issued on 5 December 2013, and reconsideration was refused later that month.