Teacher succeeds with claims for race discrimination and unfair dismissal against Multi-Academy Trust
In the recent case of Burton-York v Diocese of Westminster Academy Trust a Claimant succeeded with claims for race discrimination and constructive dismissal.
Is open evidence of racism needed in order for a case of race discrimination to succeed?
In Burton-York the Claimant, who describes herself as black Afro-Caribbean, had been asked to stand down as Head of Year by the Multi-Academy Trust (“the MAT”). The Tribunal accepted that she had been treated less favourably than other Heads of Year. The Tribunal commented that a difference in treatment and a difference in race would not by itself prove discrimination but that something more is required. In this case they found that there was something more. The MAT’s explanation for the removal of Head of Year status was that it was temporary and related to an ankle injury. The Tribunal did not believe that this was a credible explanation. On the face of it the removal was permanent and unrelated to the ankle injury. As such, the Tribunal found that the burden of proof shifted to the MAT to show that the detriment was unrelated to race. The Tribunal upheld the claim that it had been on the grounds of race, as the MAT did not have a credible explanation for the removal.
The Claimant had also complained about unfavourable comments made in references by a Head Teacher. The Tribunal found that the comments were more critical than those that would have been given by members of staff who were more familiar with the Claimant. For example one reference stated: “Ms Burton York has a history of not meeting key deadlines.” The Tribunal did not find that the explanation for the negative comments could be explained and so the burden again shifted to the MAT to show that they were not discriminatory. As the Head Teacher struggled to explain why the comments had been made, they were deemed to be discriminatory.
What evidence of discrimination is sufficient for Employment tribunals?
Employment Tribunals have long recognised that it can be difficult for employees to obtain evidence of discrimination. As such – provided the Claimant has presented enough evidence that a detriment may have resulted from discrimination – the burden then shifts to the employer to show that any detriment was not due to discrimination.
The Burton-York v Diocese of Westminster Academy Trust case shows us, whenever a key decision is reached that impacts on employment, employers should try to reduce the risk of a discrimination claim by ensuring they can provide a robust, transparent explanation for that decision, which is unrelated to a protected characteristic such as race.
Can failure to support an employee, during an absence, lead to a constructive dismissal?
Also in Burton-York the Claimant resigned after she had not been contacted by the MAT – for almost four months – during a sickness absence. When the Claimant contacted the MAT she did not receive any response. The Employment Tribunal found that the lack of contact from the employer was either calculated or likely to damage the relationship of trust and confidence. This meant the Claimant’s right for unfair dismissal was also successful.
This case also shows the need for employers to maintain the employment relationship during a lengthy sickness absence.
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All advice is correct at time of publication.