Wife (teaching ssistant) sacked for gross misconduct

[finaldj]

My wife has been dismissed on the grounds of:-

Failure to follow a management directive

Insubordination

 

All of which have constituted to gross misconduct

 

My wife already had an 18 month final written warning which was part of a disciplinary in June 2011 because of her lateness to work part of her case in that was about parking outside of school grounds, damage to the car and continued abuse from the local residence.

 

There wasn’t enough parking in school 2009 a lot of staff had to park outside of the grounds due to building work going on in the school and the local residence didn’t like staff cars on their street. Our car was damaged 3 times, letter headed notes were stuck on the car from the school asking staff not to park between numbers **and** as it was illegal “stating the highway code” but the police had been out and they said parking was ok.

 

All this evidence went into the hearing but was overlooked by the school governors and gave her a final written warning although she had to admit that some of her lateness was her fault.

Sept10 – Oct 11 all staff were parking in school grounds. Nothing was said and cars were double parking.

 

October holidays 2011 school principle issues a management directive to allocated parking for some staff in bays. All teachers got parking; none of the support staff were issued with parking permits and were told to park off site. Wife argued her case and was told no she didn’t meet the criteria and she would be disciplined if she parked inside….she did and ended up on a disciplinary. She had a meeting to put her point across and was asked why she didn’t find alternative parking and explained why and didn’t know anywhere else to park as some streets were permit parking and any further would be too far to walk to get into work. HR adviser argued that she is the face of the school and if neighbours complained she should move her car. She said why should I its parked legal even the police said. I pay my tax I can park it where I like that’s legal. HR stuck to her story and still argued she is the face of the school and they have a right to get involved if the local residence complain about it and the school were right to do so.

 

They decided after that meeting it was going to the governors and on the 1 dec sacked her for the above regardless of the problems she was having outside of school and because she was already on a final warning which was part of the parking problems. The school claimed they didn’t get involved outside of school parking, but then we had evidence they did and the governors were only interested that she had gone against a management directive.

 

They had evidence to show her 2 front tires were in a yellow boxed area of the school and thus “could” prevent school delivers taking place and emergency services being able to access parts of the school. She argued that all deliveries had taken place during that time so it wasn’t a problem but they didn’t want to know she also argued how could 1 car prevent deliveries and emergency services but 30+ double parked cars didn’t for a whole year. It fell on deaf ears.

 

We have put an appeal in because they didn’t mention anything about parking problems which constituted to the loss of her job and 90% of her defence was all about the parking issues.

The head made a statement on the 7th November saying that if my wife found alternative parking before the hearing he would consider the situation resolved.

 

On the 18th November she emailed the school to say she had now found a safe spot outside of school and was wondering if this would be acceptable “gave the address to school” they ignored her email and sent a letter 2 days later for the governors meeting. Their response to the finding parking was too little too late.

 

Since we put the appeal in we have photo evidence of staff parking in areas of the school they shouldn’t and I wish to ask anyone’s help that can we use this evidence as new evidence in an appeal case or will they say no?

 

Sorry its long winded and I appreciate any advice.

Edited December 17, 2011 by finaldj

[papasmurf1cx]

What was her reason why she should be allowed to park within the grounds?

[finaldj]

Her reason given was because her car had been damaged 3 times while she was in school working. not just hers but another member of staff and that also she had been given abuse from the local residence not just her but other staff. one staff member had to report a matter to the police because one of them was threatening her while she was sat in her car.

 

Also my wife was supporting special needs pupils in main stream school that can't be left with the teacher so had to find cover because a call would come in from a resident asking her to move her car so when she went out to see what the problem was they were trying to say her car was parked illegal but in fact it was parked legal and the traffic police had been out to look a few times and didn't have any issues. they even pulled her out of a lesson 1 time because the police had actually called into the school over a complaint but said the police had looked and said they didn't see and issue and would go back and talk with the neighbour

 

The school also had emails go round on there internal email system throughout the day from time to time asking odd members of staff to move their cars because of local residence complaints. while most found something else my wife refused to move hers because she said its parked legally while it may benefit the school and the local residence so the school doesn't get hassled it doesn't benefit me and I pay car tax and its parked legal so why should she move unless the school is going to pay her car tax for her.

 

So the school wasn't interested and simply stated in their interests she is the face of the school and it doesn't look good on them if the residence want the car moving and they are complaining all the time while other staff move theirs she refuses legal or not she is out to intimidate the residence. she said she wasn't and parking further away would mean a 15 min walk to work so why should she its parked legally.

 

So when the permit parking came into force they said she didn't meet the requirements which were time started and distance traveled. when in actual fact no support staff got parking only the teachers. she argued that for a year parked in the school resulted in no damage to her car and no residence complaining about her parking and no work related stress for her but they fell on deaf ears.

[papasmurf1cx]

Ok, can you explain what exactly the status of the 'special needs' pupils that she teached? Was this her sole job and what happened to the special needs pupil when she was abstracted on the parking issue? Can the special needs pupil be described as 'disabled' as per the Equality Act 2010?

 

The way I am thinking is this. Forget the parking issue. She will not win on this aspect of the case because the emotive issue on parking spaces has been made. The criteria on the allocation is what you need to focus on. The parking in the street is legal... end of. It is the way the on site parking has been allocated is the unfair aspect. That is what she was arguing about and without actually mentioning this in her grievance the facts dictated that a discriminatory practice was being alleged. The school should have recognised this and dealt with it accordingly.

 

The school should have looked at the allocations in respect of needs. Needs of disabled teachers eg a wheelchair user or someone that has breathing problems or walking problems. Then they should have looked at the needs of their pupils AND THOSE ASSOCIATED WITH THE DISABLED PUPILS ie the special needs pupils your wife works with, then they should consider all the others. Her abstraction from the teaching role, and any of the others that similarly have teaching duties with special needs pupils, discriminated against the special needs pupil (disabled as defined by Equality Act 2010)

 

Now Associated Discrimination is a new concept and expert advice should be sought before taking it to a Tribunal, but it is worth going that route. It may be worth submitting another grievance alleging victimisation and associated discrimination against the governors over failing to uphold your allegation against the unfair allocation of spaces and being dismissed for alleging Associated discrimination.

 

What do other caggers think?

 

In the mean time perhaps you need to speak to an employment lawyer. Have you legal protection cover on your home contents insurance? Worth a look!!

[honeybee13]

Hello there.

 

Does your wife have union support?

 

My best, HB

[Marieleeza]

Ok, can you explain what exactly the status of the 'special needs' pupils that she teached? Was this her sole job and what happened to the special needs pupil when she was abstracted on the parking issue? Can the special needs pupil be described as 'disabled' as per the Equality Act 2010?

 

The way I am thinking is this. Forget the parking issue. She will not win on this aspect of the case because the emotive issue on parking spaces has been made. The criteria on the allocation is what you need to focus on. The parking in the street is legal... end of. It is the way the on site parking has been allocated is the unfair aspect. That is what she was arguing about and without actually mentioning this in her grievance the facts dictated that a discriminatory practice was being alleged. The school should have recognised this and dealt with it accordingly.

 

The school should have looked at the allocations in respect of needs. Needs of disabled teachers eg a wheelchair user or someone that has breathing problems or walking problems. Then they should have looked at the needs of their pupils AND THOSE ASSOCIATED WITH THE DISABLED PUPILS ie the special needs pupils your wife works with, then they should consider all the others. Her abstraction from the teaching role, and any of the others that similarly have teaching duties with special needs pupils, discriminated against the special needs pupil (disabled as defined by Equality Act 2010)

 

Now Associated Discrimination is a new concept and expert advice should be sought before taking it to a Tribunal, but it is worth going that route. It may be worth submitting another grievance alleging victimisation and associated discrimination against the governors over failing to uphold your allegation against the unfair allocation of spaces and being dismissed for alleging Associated discrimination.

 

What do other caggers think?

 

In the mean time perhaps you need to speak to an employment lawyer. Have you legal protection cover on your home contents insurance? Worth a look!!

 

The disability discrimination element occurred to me too Psmurf. Any cases I have read have involved parents claiming discrimination because the employer would not support time off or reduced hours the worker needed to look after a disabled child. This case might qualify because the worker has a responsibility for special needs pupils and could not leave them at short notice to go and sort out parking disputes.

 

Even though the needs of the pupils were not specifically mentioned during the disciplinary process, the school would have been well aware of it and failed to give priority for inside parking to those teachers and assistants who were responsible for special needs children.

 

Were the children disabled? Were the children disadvantaged if the assistant left them at short notice, presuming that the teacher was still there? These are the questions to answer. Is the OP's wife in NUT the teachers' union?

[papasmurf1cx]

Marie that was what I was alluding to. Trouble is that I did not know whether this would apply hence me advising to get specialist advice especially as it involves 'outside the family' disability or potential disability, which would be another legal hurdle to definitively prove.

[Marieleeza]

Marie that was what I was alluding to. Trouble is that I did not know whether this would apply hence me advising to get specialist advice especially as it involves 'outside the family' disability or potential disability, which would be another legal hurdle to definitively prove.

Yes it would be a new way of looking at the legislation and only a solicitor could do that. Do you think that the EHRC might be interested in this as it is breaking new ground?

[becky2585]

I think you'd struggle with the association point here. The dismissal doesnt seem to have anything to do with that and additionally I think her pupils would be considered too remote for that line to succeed.

 

It also appears as though the insubordination poInt does have some merit, whatever the reasons behind it.

 

One point though. An 18 month final written warning may not have been fair or justifiable. If that's the case, the ET would have to consider whether a lesser sanction or no sanction should have been imposed. If this warning was unfair, so could any subsequent dismissal on the back of that warning be unfair.

 

It may not be enough to win. But it may give them grounds to worry and therefore make an attempt to settle, should you bring a claim.

[papasmurf1cx]

Yes it would be a new way of looking at the legislation and only a solicitor could do that. Do you think that the EHRC might be interested in this as it is breaking new ground?

 

NO. They are worse than useless to be honest. It is individual cases that move it forward in my opinion.

[papasmurf1cx]

I think you'd struggle with the association point here. The dismissal doesnt seem to have anything to do with that and additionally I think her pupils would be considered too remote for that line to succeed.

 

It also appears as though the insubordination poInt does have some merit, whatever the reasons behind it.

 

One point though. An 18 month final written warning may not have been fair or justifiable. If that's the case, the ET would have to consider whether a lesser sanction or no sanction should have been imposed. If this warning was unfair, so could any subsequent dismissal on the back of that warning be unfair.

 

It may not be enough to win. But it may give them grounds to worry and therefore make an attempt to settle, should you bring a claim.

 

That is why I refer to expert advice. I am unclear as to the specifics. Being remote might not be a defence to victimisation as an issue of discriminatory practice was raised, even if not specifically alluded to, in the grievance.

[finaldj]

Thanks for the comments even though you've lost me a little.

 

Her Union were Unison although they did say because she had gone against the Management Directive and the school hadn't broke any rules and she already had an 18 month final warning then they said the chances were high that she would get the sack and this rung true.

 

Part of the 18month written warning was because of latness to work and while most of this was because of the parking disputes some of it she had to hold her hand up and admit was her fault, I did think 18 month was a very harsh as she had no other warnings so went straight to a stage 3 more or less. on that case though the school used "failure to follow a management direction to present to work on time" "health and safety risk with not knowing where she was" "failing the needs of the children by not being in morning handover"

 

It was something like that but her parking was brought into the dispute as well as her line manager putting some wrong times down but they decided her action were sufficient enough to warrant an 18 month final warning.

 

I think she said she would post here at some point and explain things in better detail. but she was suspended on the 7th November so as to not disrupt the investigation that was a week after she had been parking in school grounds. 11th of November a meeting took place to put her case to the investigating officer, HR adviser and her Union. they asked in the week she parked in the grounds why didn't she move her car she said I was hoping that school would look at her evidence and perhaps give her a parking permit. they said it wasn't going to happen and while she was suspended she should have looked for a parking space.

 

She explained again about parking permit and holding on and not knowing where to park that was safe for her and wouldn't disrupt her lesson giving the school a reason to discipline her for leaving and moving her car all the time. they as I explained went on about her being the face of the school outside of and during working hours and she wasn't going to get a permit. so after another week she found a suitable parking space outside of school. sent an email on the 18th november to inform them then 2 days later got a letter to say it was going to the governors for the 1st of december and didn't even reply to the email about finding parking.

 

However her pack arrived 4 days later and in that pack was a statement signed by the principle on the 7th November saying that if my wife found alternative parking before the hearing he would consider the situation resolved. She put this to the governors who said that it was "too little too late"

 

I'm just wondering nobody commented on this and I was wondering if there was a case we could use on this?

[papasmurf1cx]

"I'm just wondering nobody commented on this and I was wondering if there was a case we could use on this?" ??????????????? I think I commented on it widely above. You said that she was legally parked on the street what is there to talk about over that? I doubt whether you will find a case where there is authority about parking permits, the law doesn't work like that. It looks at principles. In your wife's case it is the fairness of allocation of the permits where you need to concentrate because that is why she was consistently late or abstracted from her work. The fact that the school took sides against your wife and for the local residents who were merely p**sed off with an inconvenience of staff taking their spaces. No-one has any 'right' to park in the highway merely to 'progress' along it. Stopping in it is an obstruction. Authorities tolerate it because of modern living problems. The law will back you wife up as to her lawful parking. So attack the reason she had no permit.

 

In regard to the previous warning, the law will ignore the facts around it. They will merely take into account that it existed. The law will look at the circumstances around the problem that led to her dismissal and whether that was fair and lawful I am saying that she should 'use' the fact that she was entitled to the permit because of her special needs pupils. It is explained above, you need expert advice to be sure though that what we are saying is right.

 

Further, it is curteous to answer the questions that caggers post not ignore them. That is the way you progress your problem and try and solve it. We get it your wife had a parking problem at work that got out of hand, you don't need to repeat the same facts, otherwise you will bore people and they will merely stop posting responses to you.

[becky2585]

In regard to the previous warning, the law will ignore the facts around it.

 

That is absolutely incorrect. Previous warnings and their validity will be taken into account in unfair dismissal cases. If the previous warning was not given in good faith, or was not procedurally correct, then a finding of unfair dismissal could be found on the back of it. This was actually affirmed by the courts in the past few weeks.

[papasmurf1cx]

Thanks Becky for updating me on this.

[finaldj]

Firstly I was aware that I did answer all questions I wasn't sure I missed any?

 

Because there was more than 1 person replying to me it put me in a position to try and fill some gaps in be that it repeated because the 18month warning and the last disciplinary were kind of the same thing so questions were raised on both.

 

You did go off the track a bit about special needs and how that would effect parking which is something I never thought of which could possibly help, it's a route she never thought of going down.

 

So here is what is happening so far, she put in a case for an appeal already and this was accepted by them pending them getting professional advice as to whether they should proceed to a hearing or not. with it now being the holidays she told me they probably wouldn't do anything until after.

 

Again I apologies if I have missed a question asked. As an update not sure if I mentioned this to avoid repeating myself......the appeal went in thursday last week but since then my wife has called into the school and noticed cars parked where they shouldn't be over a 2 day period, not really understanding how an appeal works I was on the understanding you needed new evidence and while she could argue over the special needs pupils which is a good idea I was thinking of using these photos taken of the cars parked where they shouldn't in the grounds as new evidence as well.

 

Another thing the school have refused to give her a reference but she has worked there for 8 years and the only reference they did do was year started and finished, her job title and grounds for being sacked. I'm aware an employer doesn't have to give a reference but there must be some legal standing because of the length of time she worked there, she was thinking of going to Acas for advice.

[finaldj]

just a small update on this.....

 

They have accepted that an appeal can go ahead and we got a letter today.......

 

In line with the schools disciplinary policy and procedure. I am writing to notify you that the appeal hearing will be difficult to set up within the 20 working days due to the limited availability of governors and your union representative

 

I will contact you again as soon as a date has been fixed.

 

Just some advice really we haven't spoken to the Union yet but can't see them having a problem with time especially 20 days notice. so will contact them on monday but I was wondering can they do this just more or less say we will contact you whenever?

 

We have submitted new evidence but nothing that would in this case hold it up like this for them to investigate and they never stated it in the letter just wondering where I would go from here?

[papasmurf1cx]

It is not unusual for them varying their own policies when there are admin problems. They have to be genuine though and reasonable in length. They cannot be used as an excuse not to hear the appeal or case. Write to them and ask when they think they can comply with their own policy on this matter and hold them to that date. In these processes you may need time too and again no reasonable request should be refused. Give and take until you can show they are taking the p*ss.

[finaldj]

Thanks for getting back to me.

 

I will be contacting them on monday and tomorrow I will pull out the school policy have a re-read through. In an appeal case can further evidence be submitted along the way or can we only use what we sent in at the time we sent the appeal in?

 

If so I will start putting an appeal pack together as mentioning what you guys said about the special needs pupils would come in handy as it was never brought up in the last meeting.

[papasmurf1cx]

I think strictly speaking you are only allowed the former. But do not be bound by this. The knew the facts and as the facts are the same out in the new allegations.... anything that is in during the employment dispute is what the ET will consider. So make the allegations and let the ET sort it out as whether it was unfair, discriminatory and unlawful.

[BobTooU]

Hi findalj

I am/was a teacher and have been through a school disciplinary. It is fairlyobvious they wanted your wife out. 18 months final written warning may beconsidered an overly sever sanction for a first offence. School DisciplinaryPolicies can be different, but ours states anything over 12 months may beissued in exceptional circumstances and these must be cited.

Policies within schools can vary but I am sure you can submit new evidenceat the Appeal (usually 5 days prior). Do not expect the Appeal Panel to overturn the original Panels decision 'it will not happen'. But you must provide asmuch new evidence as possible otherwise going to Tribunal and saying 'we havenew evidence but the school have not seen it' will be no use to you at all.

You must read the schools Disciplinary Policy (which they MUST have providedyou with) inside out. Jot down every breach they have made. Some Headmastershave narcissistic characteristics and do not like you questioning them. Showingthem insubordination is the worst possible affront to them and the consequenceswill be dire for the perpetrator. This does not make it right. You need toidentify all areas of differential treatment. i.e the new cars parked there.What has happened to them. Did you raise any concerns (in writing) were youtreated differently after disclosure? If yes, you have some protection.

I hope you settle your issues, good luck

BobTooU

[ms_smith]

Hi finaldj,

 

I am a human rights activist with proven record of successfully won cases against big companies and here is my advice:

 

I think I would concentrate, with any defence for your wife, on arguing, during that appeal meeting, that given the time they gave her to find any alternative parking spot - from 7 November (suspension) to 11 November (meeting date) - that it is not a reasonable time (knowing that a reasonable approach is something every employer is bound by law to restrict any time-disputed issues as well to) to find a secure but foremostly convenient for any residents around, parking space. That was not even a week!

 

Since they themselves, the school, stress it out how important it is to maintain good relations with residents being the face of the school, I would simply fight back with exacty the same argument and see what happens.

 

Forget about other evidence you have, they may rightly dismiss it. Concentrate on this aspect of having found parking space and informing them about it on 18 November while they ignored it completely, given the circumstances.

 

Naturally, your wife, as anyone else in those circumstances, was traumatised by experience that her car was damaged 3 times in the past having parked randomly and that she received a verbal abuse while it was clear and confirmed by the police that she did park legally, so it would take anyone in this kind of situation more time, courage and caution to search for a new parking space along residential space, which she managed to achieve and informed the school about on 18 November. Make sure she brings this subject up at the appeal. Otherwise, they won't guess themselves that these are, in fact, mitigating factors.

Edited January 14, 2012 by ms_smith

[ms_smith]

 

Since we put the appeal in we have photo evidence of staff parking in areas of the school they shouldn’t and I wish to ask anyone’s help that can we use this evidence as new evidence in an appeal case or will they say no?

 

 

In any event they will say it is not strictly related to your wife's case. Also, you would need to show that the school knew about other staff parking where they shouldn't but didn't do anything, in comparison to your wife's case. That might be very difficult to prove and unless you have anything to prove it right now, you risk antagonising them against your wife's case.

 

There will always be someone who will break the rules in the meantime as for the parking but that is down to them to deal with it. I know, it is very irritating because some may be very lucky to get away with it completely.

Again, concentrate on your wife's case.

Good luck and keep us informed.

[ms_smith]

That is absolutely incorrect. Previous warnings and their validity will be taken into account in unfair dismissal cases. If the previous warning was not given in good faith, or was not procedurally correct, then a finding of unfair dismissal could be found on the back of it. This was actually affirmed by the courts in the past few weeks.

 

Yes, 18 months of warning seems quite strict but any court, I reckon, would find it reasonable for any school to apply it since those teachers and teacher's assistant bear utmost responsibility for kids foremostly, should assistant's or teacher's conduct hold worrying cracks in attitude towards their job.

[ms_smith]

We get it your wife had a parking problem at work that got out of hand, you don't need to repeat the same facts, otherwise you will bore people and they will merely stop posting responses to you.

 

Do not listen to him, finaldj . The more we can read about your case, the better picture we have of your attitude as well so that a strong defence can be built by eliminating any of your wrong reasoning so that it doesn't clash with any final arguments we propose.