Ms J Sealby v River Learning Trust (Gosford Hill School) — 2021

Ms J Sealby worked as a school counsellor for River Learning Trust (Gosford Hill School). The dispute arose when the school sought to change how her working day and rest breaks were treated after it identified an issue with the hours she would work when she reverted from a temporary increase in hours. On 12 October 2018 Mr Sellars wrote to terminate her contract and reissue it on new terms; the tribunal held that this was a dismissal for the purposes of section 95 ERA 1996 and that the respondent could not unilaterally withdraw that notice.

The tribunal rejected the respondent's case that the dismissal had 'vanished' after the grievance outcome. It held that the vanishing dismissal authorities concerned disciplinary appeals, not the grievance process here, and that the claimant's grievance was seeking mediation or an agreed settlement rather than simply accepting reinstatement on the basis that the dismissal would be withdrawn. The tribunal also found that the claimant's 22 October 2018 letter should have been treated as a grievance under the respondent's policy, but was not.

On fairness, the tribunal held that the respondent had not shown a potentially fair reason for dismissal and had not acted reasonably under section 98(4) ERA 1996. The respondent's aims of compliance with the Working Time Regulations and consistency with other support staff could have been achieved through the claimant's proposed third option, and dismissal was not within the range of reasonable responses. The tribunal also noted that the claimant had not been warned that dismissal was being contemplated, the notice period was backdated, and the grievance process and possible mediation were mishandled.

The tribunal rejected contributory conduct and Polkey reduction. It found that the claimant's refusal to agree to the revised terms was understandable and that her later negative construction of communications occurred after the dismissal and did not contribute to it. It considered that, had a fair process been followed, the claimant's employment would have continued, so a Polkey reduction was inappropriate. The claim for wrongful dismissal also succeeded because the respondent gave 12 weeks' notice rather than three calendar months, and the judgment records that 11 days' pay was due. The complaint of automatically unfair dismissal was withdrawn at the hearing and was not pursued.