The School, an independent co-ed prep school for children aged 3-13 in Tunbridge Wells, Kent dismissed Sue Allington, aged 60, for refusing to accept a change to her employment contract, namely a requirement to undertake study to obtain a Level 6 degree or QTS or, alternatively, accept a demotion to a teaching assistant role. Mrs Allington had been employed by the School since 2002. She had three A Levels but she did not have a degree and did not have any teaching qualifications. She was a Year 2 class teacher and a games teacher. She had responsibility for lesson planning, delivering lessons, assessing pupils and report writing.
A new Head, Emma Neville, was appointed on 1 April 2017. The School was struggling to attract new pupils and retain existing pupils, and faced competition from other independent prep schools nearby. A large part of her remit as new Head was to explore ways in which the School could improve its pupil admission and retention rates.
No issues had been raised with Mrs Allington in relation to her performance as a teacher, nor had any parent complained about her teaching or that she was not a qualified teacher, subject to comments made on two separate occasions to Ms Neville, shortly after she had started working at the School, on the topic of Mrs Allington’s lack of qualifications. The children of these parents continued to be taught by Mrs Allington. As a result of these conversations, Ms Neville formed the view that it was essential that, going forward, in order to improve pupil retention and admission rates, the School’s strategy should be that all its teaching staff who had sole charge of planning, delivery of teaching and assessment must be qualified teachers.
In June 2018, Ms Neville met with Mrs Allington and informed her that she wanted to withdraw her Year 2 teaching role because she wanted a qualified teacher to do this instead. She said that “…government directive is that schools should only employ qualified teachers as a basic requirement”. She said that there were two options available, either Mrs Allington could gain the necessary QTS qualification with the encouragement and support of the School or she could become a full-time teaching assistant. If the latter, she would face a 40% drop in salary and her pension would be impacted.
Ms Neville then purported to start a consultation process with Mrs Allington and she made clear that if an agreement could not be reached, the School would give notice to terminate Mrs Allington’s current contract and offer to re-engage her on a new contract as a teaching assistant. No agreement was reached. Mrs Allington’s employment ended on 31 August 2019 and she presented claims before the employment tribunal for unfair dismissal and age discrimination.
The School contended before the tribunal that to maintain its competitive edge and to meet the ever-increasing levels of parental expectation it needed to introduce the requirement for qualified teachers. The tribunal held that the School had not shown that it had undertaken even the most basic research to conclude that having all qualified teachers would maintain a competitive edge or that it would meet ever-increasing parental expectation. There was no evidence that any pupils were withdrawn from the School due to unqualified teachers, nor that pupils left in Year 2 as a result of Mrs Allington being an unqualified teacher. There was no evidence of prospective pupils going elsewhere due to the presence of 2 unqualified teachers out of 77 teachers.
Regarding the purported requirement that schools should only employ qualified teachers, it was conceded that there was in fact no requirement for teachers in the independent sector to be qualified. The relevant guidance stated that independent schools have always been permitted to employ unqualified teachers and from 2012 this applied to the state sector too. Ms Neville contended instead that it was considered best practice and it was an aspiration for the School to have staff teaching in the classroom who are qualified.
The former Head, Mr Westcombe, gave evidence, stating that he had met well qualified teachers whose capabilities fell far short of Mrs Allington’s.
The School contended that it had a sound business reason in its mind which was to impose the requirement for a qualification on the one relevant employee who did not have the qualification. The tribunal considered that this barely passed the low hurdle of establishing a valid reason for dismissal.
In considering reasonableness, the tribunal was not satisfied that there was any merit in the reasons for dismissal advanced by the School and when weighed against the consequences for Mrs Allington in terms of loss of status and the loss of the salary attaching to the teaching element of her post, it decided that the School had not acted reasonably in dismissing Mrs Allington.
The dismissal was held to be substantively unfair (it fell far outside the range of reasonable responses) and procedurally unfair. The consultation process was criticised by the tribunal.
The age discrimination claim also succeeded. The tribunal held that those in Mrs Allington’s age group of 60 – 65 were at a particular disadvantage in having to comply with the School’s requirement regarding a teaching qualification because they would not have time available to complete the qualification and get the benefits that would flow from it before retirement. The tribunal noted that the School believed it had a legitimate aim (only employing qualified teachers) and that the requirement imposed on Mrs Allington was a proportionate means of achieving this aim. However, the tribunal disputed that this was a legitimate aim – because of the lack of evidence to support it. In relation to justification, the tribunal reviewed the evidence relating to the proportionate means of achieving a legitimate aim and concluded that to implement the new requirement while Mrs Allington was still employed was disproportionate to its stated aim. Mrs Allington should not have been dismissed. The total compensatory award was £141,334.64 of which £14,000 related to injury to feelings.
Comment
This case serves as a reminder that a school needs to construct carefully its business case for a proposed change to an employee’s terms and conditions and the importance of having evidence in support. This reasoning applies to a range of proposed changes such as withdrawal from the Teachers’ Pension Scheme. The case also highlights what can happen if a Head feels under pressure and is a reminder of the role of a governing body in providing oversight and being a ‘critical friend’ to a Head. The value of good legal advice in evaluating such decisions cannot be overstated.
