About Me

I’m a Barrister at Atlantic Chambers looking at various aspects of Employment Law including new developments in case law and legislation.

The Reporting of Mrs Carol Hill -v- Essex County Council

The media reporting of Employment Tribunal cases, like any form of Court reporting, at times, can be inaccurate.  This is due not only to the complex and confusing nature of Employment law but due to a variety of other factors, not least increased journalistic workloads.  The manner in which Employment Tribunal cases are heard potentially also poses difficulties to journalists, particularly if witness statements are “taken as read” by the Tribunal, meaning the statements are not read out by the witnesses during the hearing but read in private by the Employment Tribunal.  Even if journalists hear the evidence they may not have access to the documents.

This is noticeable from the case of Mrs Carol Hill, referred to in the press as the “Dinner Lady” who was dismissed from her job at Great Tey Primary School, Essex in September 2009 (I anticipate Mrs Hill’s job title was probably that of Midday Assistant or Lunchtime Supervisor).

Background to Mrs Hill’s claims

From what can be discerned from the various newspaper accounts, on 24th June 2009 Ms Hill found a seven year old pupil tied to a fence and being whipped with a skiing rope by another pupil in the Primary School playground.  The seven year old was sent home with a letter which informed her parents that she had been injured in a “skipping rope incident” but no mention was made of the child being tied up or whipped by other pupils.  On the evening of 24th June 2009 Mrs Hill met the child’s parents at a Scouts meeting and discovered the parents had not been given a full account of the incident and told them what she saw.

On 25th June 2009 the child’s father requested to see a copy of the school’s official report on the incident and alerted the Primary School’s headmistress, Mrs Crabb, to the fact that he had been informed of the details of the incident by Mrs Hill.  In July 2009 Mrs Hill was suspended for “breaching pupil confidentiality”.

It appears that Mrs Crabb gave evidence during the Employment Tribunal hearing that Mrs Hill was sacked for committing the “offence” of “going to the press”.  Mrs Crabb described that Mrs Hill’s actions in talking to the child’s parents about the incident amounted to a breach of confidentiality which would have normally earned Mrs Hill a final warning.  However as Mrs Hill had also talked to a journalist (from the Essex Gazette) Mrs Hill had brought the school into disrepute and had to be dismissed.

The case was heard at Bury St Edmunds in November 2010.  It appears that Mrs Hill presented claims for unfair dismissal.  It also appears that Mrs Hill claimed she had made a protected disclosure (i.e. blew the whistle).  I anticipate that she therefore alleged that her dismissal was automatically unfair under Section 103A of the Employment Rights Act 1996 on the basis that she claimed she had been dismissed for making a protected disclosure.  It is not clear whether Mrs Hill claimed notice pay on the basis of breach of contract (wrongful dismissal).

The Employment Tribunal reserved its decision and newspaper reports of the Employment Tribunal’s decision started to surface on 6th January 2011.

The Newspaper Reports

The Guardian’s headline on 6th January 2011 was “School dinner lady was unfairly sacked” and is fairly representative of the newspaper reports on that day.  However in an article entitled “Confusion over dinner lady’s tribunal” within the East Anglian Daily Times (“EADT”) on 6th January 2011 the EADT reported the contents of joint statement from the Essex County Council and Great Tey Primary School which said:

It is completely inaccurate to suggest that Mrs Hill has won her claim for unfair dismissal.  Furthermore there has been no judgement on the fairness, or not, of the dismissal and the tribunal makes it clear there is need for further representation from both counsels to decide this point. On a number of critical points the employment tribunal ruling has found against Mrs Hill including that she was not acting in good faith when speaking to the press and did so for the purpose of personal gain. The claimant’s predominant motive was self-interest and to a lesser extent antagonism towards Mrs Crabb. The tribunal also ruled that disclosures were not protected under the Employment Rights Act therefore she was not acting as a whistleblower. The council and school will now be considering all the options before making any further decisions or announcements.

In light of the EADT article and the Council’s/School’s statement that “The tribunal also ruled that disclosures were not protected under the Employment Rights Act therefore she was not acting as a whistleblower”, it was surprising to see an article in the Morning Star the following day, on 7th January 2011 entitled “Britain – Playground whistleblower was unfairly dismissed”.  Although the newspaper reports evidence a dispute as to whether or not Mrs Hill had been unfairly dismissed I could find no suggestion that Mrs Hill was successful in her whistleblowing claim on the basis of raising protected disclosures.  Mrs Hill quite clearly should not have been described as a “whistleblower” in the employment law sense.  The Morning Star’s headline appears to run precisely contrary to the Employment Tribunal’s decision that Mrs Hill had not raised a protected disclosure.  Admittedly “Playground whistleblower was unfairly dismissed” is a more enticing headline than a potentially more accurate headline along the lines of, “Lunchtime Assistant’s dismissal found to be procedurally unfair”, although I would guess that my suggested headline would have been a more accurate summation of the Judgment, as will be further seen below.

What about the Council’s/School’s statement found within the EADT that it was “completely inaccurate” to suggest that Mrs Hill had won her claim for unfair dismissal?  The Daily Mail’s article on 7th January7 2011 reported that the Employment Tribunal had ruled “that the governors had not carried out a reasonable investigation into the allegations and that the disciplinary and appeal hearing were not fair”.  The Daily Mail reported that a spokeswoman from Unison, Mrs Hill’s Trade Union had stated:

The tribunal has upheld Carol Hill’s complaint of unfair dismissal.  The employment tribunal found that Carol’s dismissal was procedurally unfair, in that the (school) did not carry out a reasonable investigation into the allegations against Carol, and that the disciplinary and appeal hearings were not fair hearings and that the Employment Tribunal would consider whether Mrs Hill should be compensated and reinstated at a remedy hearing on 2nd February 2011.

The Daily Mail however also reported that the Council and school had disputed Unison’s interpretation of the Employment Tribunal’s “lengthy judgment” and had claimed it was “inaccurate” to say that Mrs Hill had won her claim for unfair dismissal.

The Sunday Times on 9th January 2011 described Mrs Hill’s Judgment as a “partial victory in her fight to regain her job”.  Another seemingly misleading reference to whistleblowing was made within the first paragraph of the article where the Sunday Times described Mrs Hill as “the dinner lady sacked after inadvertently blowing the whistle on bullying at her village school”.  Even if Mrs Hill had raised a protected disclosure how anybody could “inadvertently” blow the whistle I am not sure.

The Employment Tribunal’s Judgment

Even after reading a number of the newspaper reports it is difficult to piece together exactly what claims were made and who exactly was successful at the Employment Tribunal hearing without having access to the Employment Tribunal’s written Judgment.

My best guess is that Mrs Hill was unsuccessful in her claim that she was automatically unfairly dismissed due to making a protected disclosure.  The weight of the reports suggest however that the Employment Tribunal upheld the Claimant’s claim for general unfair dismissal on the basis that her dismissal was procedurally unfair.  Given this I do have to question the accuracy of the Joint Statement from the Council and Primary School that “there has been no judgement on the fairness, or not, of the dismissal and the tribunal makes it clear there is need for further representation from both counsels to decide this point”.  I find it very difficult to believe that so many newspapers together with Mrs Hill’s Union would have reported that the dismissal was procedurally unfair if this was not stated within the Judgment.  I am not however sure as to whether the Employment Tribunal found the dismissal substantively unfair or whether the Judgment even made any comment on this.

I think the question that can quite properly be raised in this case is whether a merely procedurally unfair dismissal could be classified as a true victory at all for Mrs Hill.  Technically it always now is.  Given that Mrs Hill’s disciplinary process commenced following the 6th April 2009 the Council will not now be able to argue that under the now repealed Section 98A(2) of the Employment Rights Act 1996 that the failure to follow a procedure did not in itself render the dismissal unfair.  Under the pre-6th April 2009 law, if the statutory dismissal and disciplinary procedures had been complied with but an employer had failed to follow “a procedure” this did not in itself render the dismissal unfair if the employer could show that it would have decided to dismiss the employee if it had followed the procedure.

I can only guess that the reference to “further representation from both counsel” in the Council’s/School’s statement may be in respect of the remedy hearing on 2nd February 2011.  It appears likely that one of the key issues that will be determined at the remedy hearing will be the issue of Polkey i.e. whether there should be any deduction from Mrs Hill’s compensation to reflect the likelihood that if a fair procedure had been followed that Mrs Hill would have been dismissed in any event.  I also imagine that the Council may wish to argue, further or alternatively, that Mrs Hill contributed to her dismissal and that any compensation should be reduced by up to 100% on this basis.  It could be that the Council believe they have a strong case in these respects and will seek to argue for a complete reduction to both the compensatory award and basic award to render Mrs Hill’s victory nothing more than pyrrhic.

Conclusion

I feel it would be wrong to be overly critical of the newspapers or the journalists who have reported on this matter as there are many factors at play as to why the reporting of this Employment Tribunal case and many others is not what it could be.  A number of the reporting journalists are likely to not have attended the hearing itself; I noted a tendency for the local press reports to be more accurate than the national reports.

It is perhaps however a sad indictment as to the complexity of Employment Tribunal cases that following an Employment Tribunal hearing and a Judgment being sent to both parties there can be a situation where it is not clear as to which side has “won” and where both sides claim victory.  However, I think it is likely in this case that the appearance of both sides claiming victory in this matter is at least partially due to Mrs Hill being successful in some claims and not others and the employer trying to save face after a potentially adverse finding of procedurally unfair dismissal.

Leave a Reply