The Learning Trust & Ors v Marshall, EAT, 18 July 2012  

Where an employee has brought a grievance regarding allegations of discrimination, will a failure to investigate these allegations properly in itself be discriminatory? Not necessarily, said the Employment Appeal Tribunal in The Learning Trust & Ors v Marshall [2012]; it entirely depends on why the failure took place.

Background

Mrs Marshall was a teacher at Benthal Primary School from 1996 until her dismissal in 2008. The facts of the case were extensive and complicated, however, in summary, between 2003 and 2005, Mrs Marshall had extended absences from work due to pregnancy related illness, maternity leave, bereavement and then depression. A year after her return to work in 2006, Mrs Marshall complained that the school had not awarded her Performance Management Point 3 (which would have meant a pay increase). However, the original decision not to award her the performance management point was upheld. When a new head teacher was appointed, Mrs Marshall requested that this matter be reopened, but he refused to do so. This lead to Mrs Marshall's first grievance.

A further grievance was lodged in relation to the restructuring of the school. The infants school then merged with a junior school on the same road. Mrs Marshall applied for the role of "Key Stage 1 Co-ordinator" in the new structure, but was unsuccessful (although she was given a similar role at the same level). The role went to a different teacher who was on a lower grade than Mrs Marshall. Mrs Marshall lodged a grievance alleging that her non-appointment amounted to discrimination on the grounds of race and sex. None of her grievances were upheld.

Disciplinary proceedings were commenced against Mrs Marshall which related to "vexatious and malicious" allegations against the head teacher, refusing to carry out reasonable instructions, a breakdown of trust and confidence and finally, failure to notify the school of a criminal conviction (Mrs Marshall was convicted of perverting the course of justice in April 2006). The disciplinary proceedings ran alongside the grievances she had submitted. On 15 May 2008, she was dismissed. She appealed, but the appeal was dismissed.

The Tribunal's Decision

Mrs Marshall brought proceedings against the Learning Trust (which ran the school), the head teacher, the Governing Body of the School and the London Borough of Hackney (her employer). The daunting list of 53 agreed issues that faced the Tribunal ranged from direct race discrimination to whistle-blowing and unlawful deduction from wages to failure to make reasonable adjustments.

Whilst the Tribunal decision did not find for Mrs Marshall on all her claims, it was critical of the Respondents and found that Mrs Marshall had been the victim of sex and race discrimination, had been subjected to detrimental treatment for whistle-blowing, had been unfairly and wrongfully dismissed, had been subject to racial discrimination regarding the investigation and conduct of grievance hearings, her dismissal and the payment of holiday pay, and had suffered disability discrimination relating to a failure to make reasonable adjustments.

In relation to the grievance hearings, the Tribunal stated that:

"…the Respondents failed to conduct thorough or reasonable investigations into the Claimant's grievances. As her complaints included allegations that she had been treated less favourably on the grounds of her race it must follow that the failure to investigate that allegation in a thorough and reasonable manner was an act of race discrimination."

The Respondents appealed a number of the decisions of the Tribunal, including the allegation of race discrimination regarding the grievance process.

The Employment Appeal Tribunal Decision

The EAT found that the Tribunal's findings in relation to discrimination had been flawed to such an extent that the case would have to be completely reheard by a fresh Tribunal.

The important finding of the EAT relates to the alleged racial discrimination Mrs Marshall had been subjected to as part of the investigation and conduct of the grievance hearings. The EAT stated that the Tribunal's finding was legally wrong and that:

"Contrary to the Tribunal's opinion, it does not follow that a failure to investigate an allegation of discrimination thoroughly (or at all) is necessarily itself discriminatory. Whether failure to investigate an allegation of discrimination is itself discriminatory will depend on why the failure took place."

The EAT quoted the case of RBS v Morris which stated:

"It is easy for tribunals to slip into thinking that the incompetent or inadequate investigation of a claim of discrimination is itself an act of discrimination; but that does not follow."

The key question in cases like this is what was the reason for failing to investigate? If the employer failed to investigate because of the employee's race, sex or some other protected characteristic then it will be discriminatory; if, on the other hand, the reason was nothing to do with a protected characteristic then it will not.