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Teacher wins unfair dismissal and victimisation claim after being given ‘unusually damming reference’

Makbool Javaid, Partner - Simons Muirhead Burton

In Mr I Haq v (1) United Learning Trust, (2) Alyson Littlewood, (3) Ed Saville Mr Haq is a British Indian man. He joined Marsden Heights Community College as a Geography teacher in 2015. In Spring term 2021, concerns were raised as to Mr Haq’s performance through the school’s system of coaching/professional development review.

Mr Haq did not accept that those concerns were genuine and strongly objected to the idea that he should be required to accept “informal support”. This resulted in periods of sickness absence through the 2021-2022 academic year.

Mr Haq was dismissed by a decision of the Attendance and Dismissal Committee on 6 July 2022. He claimed that the dismissal was unfair and an act of race discrimination.

Employment Judge Sharkett also recorded that Mr Haq had raised with her that he wished to bring a claim of victimisation, based on the fact that headteacher, Alyson Littlewood had made negative comments about him to a prospective employer.

The Tribunal found that the reason for dismissal in this case was the respondent’s perception that the claimant refused to engage with the ‘informal support’ process and the breakdown in relationships which was precipitated by this refusal.

When Mr Haq failed to return to work on 6 July, and failed to attend the dismissal meeting, the respondent formed a genuine belief that there was no realistic prospect of return. However, Mr Haq had a sickness certificate which was due to expire only a few days later. In the ET’s judgment, any

reasonable employer would have waited for the expiry of Mr Haq’s sickness certificate on 11 July, to see whether he did return to work or, instead, whether another sickness certificate was produced. It was outside the band of reasonable responses for this employer to fail to do so.

Essentially, this was a procedural unfairness point and there is an 85% chance that Mr Haq would not have returned to work and only a 15% chance that he would have managed a sustained and successful return. The Tribunal therefore concluded that his compensatory award should be reduced by 85%.

The Tribunal found that Miss Littlewood’s failure to adequately explain her decision to give a “no” answer to the “honest and trustworthy” question was a critical factor in concluding that the decision to provide a reference in this form was tainted by victimisation. Miss Littlewood’s response to the reference request was motivated by what she saw as the unjust claims of discrimination and harassment that had been levied against her. There was absolutely no attempt made in the reference to include any positive material, even though Mr Haq was a long-standing member of staff who had not encountered any problems prior to the events giving rise to this case. The panel members, drawing on their industrial experience, considered this to be an unusually damming reference which had a punitive flavour.

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