Mr James Coker v Highdown School And Sixth Form Centre — 2019

The claimant was employed by the respondent as a maths teacher from 1 January 2015 until 31 August 2019. After his brother died and his son died in Nigeria in February 2019, he was granted five days special leave and then sick pay until 27 March 2019 on the basis of medical certificates. When the certificate period ended, he said he could return to work but flights were booked until early April, and he eventually returned to England on 24 April 2019 and attended work on 25 April 2019. At the meeting on 9 May 2019 the school told him that the period from 5 April to 24 April 2019 would be treated as unpaid leave and that an overpayment of £3,055 would be recovered over four months.

On the unlawful deduction claim, the tribunal accepted the school’s account that the claimant had been overpaid and that the deduction was a lawful recovery of that overpayment under section 14 ERA. It found there was no unlawful deduction from wages. The tribunal also rejected the claimant’s comparator evidence, holding that Mrs Bates and Mrs Neal were materially different because they were covered by sickness certificates for their entire absences, and that Mrs Solomon was not a relevant comparator.

On the race discrimination complaint, the tribunal found that the claimant had not proved less favourable treatment in relation to the return-to-work interview, the absence of a phased return, occupational health, counselling or employee assistance, the handling of his grievance, the response to complaints that he was bullied by students, the timing of payment of £60.39 for interview attendance, or being asked to provide his address details. It found that he had been given details of Westfield Health, that the 2 July 2019 meeting with Mrs Chadbone was an additional route to review matters outside the school grievance procedure, and that the bullying complaints had been acted on.

On unfair dismissal, the tribunal held that the claimant had not been dismissed. His email of 27 August 2019 expressed an intention to resign if the head teacher confirmed release from 1 September 2019; the head teacher replied on 28 August 2019 saying she was happy to release him from contract, and he started work at a new school on 1 September 2019. The tribunal treated that sequence, together with his conduct, as a resignation. It therefore rejected the unfair dismissal claim and also rejected constructive dismissal because the conduct relied on did not establish a breach of the trust and confidence term.