Teaching assistant harassed and victimised by head who told her: ‘I can do what I want’

Tribunal finds school guilty of disability discrimination against employee with fibromyalgia 

Teaching assistant harassed and victimised by head who told her: ‘I can do what I want’

A teaching assistant was harassed and victimised by the headmaster of her school, an employment tribunal found as it ruled in her favour in a disability discrimination case.

Mrs S Clifford worked as a volunteer teaching assistant at Aycliffe Village Primary School in County Durham from September 2005, becoming an employee in February 2006. 

From 2015, her relationship with headmaster Jed Gargen began to deteriorate, the Teesside employment tribunal was told. Judge Johnson said the fact Gargen told his employee he could “do whatever he liked” and said he did not want her to return to work after sick leave –  among other incidents – amounted to disability discrimination, harassment and victimisation.

The tribunal heard that Clifford, who has fibromyalgia and chronic fatigue syndrome, experienced constant pain on a daily basis, and her health had deteriorated since her first diagnosis around the year 2000. 

She said that in March 2014 her pain had increased to the point it was affecting her work. She would leave work “exhausted and require a couple of hours sleep to recuperate”. Despite this, with the aid of pain relief, she managed to perform her contracted hours. 

Clifford informed Gargen that she was struggling to work in the school’s reception class due to her disability around Christmas 2015. 

She complained the “cacophony of noise and constant grabbing” by the children was difficult because of her condition. She was referred for an occupational health (OH) report in July 2016. 

OH recommended concentrating Clifford’s working hours earlier in the day and week given the fatigue she described was worse in the afternoons and towards the end of the week. Additionally, it recommended she be given flexibility in sitting and standing duties, where she could alternate her position for comfort. 

She was off work from 10 October until 7 December 2016, due to “possibly” work-related stress exacerbated by a dispute between Durham County Council and its teaching assistants.

A second OH assessment recommended Clifford be given flexible working hours, additional rest breaks and the school arrange the workplace so less physical exertion was necessary.

Clifford returned to work on 8 December and was moved out of the reception class. She alleged that halfway through her phased return, Gargen said she would have to return to reception. 

She challenged this decision and was allegedly told by the headmaster: “I can do whatever I like”. 

Clifford was assigned in January 2017 to carry out “back to back interventions” two afternoons each week, working with groups of children who were either low or high achievers. 

In February, she asked Gargen for two minutes to walk around between interventions to loosen her body. Gargen responded a couple of days later that “we are all under pressure and working hard” and that if she did not like it: “There’s the door”. 

Around the same time, Clifford agreed to assist a special educational needs child who had a swimming lesson with her class, but realised the time taken to do so impacted on timetabling. She said Gargen was “annoyed” and asked her: ‘Why are you causing so many problems? You are making mountains out of molehills over this’.” 

She took sick leave from 9 to 15 February for work-related stress and when she phoned to announce her planned return to work, claimed Gargen told her he did not want her to come back until her condition subsided. When she explained she was disabled and had a permanent condition, she was apparently told her headmaster “did not ever want me back”.  

Clifford commenced a period of sick leave on 6 March and did not return to work. She raised a formal grievance a few weeks later and attended a grievance meeting with the chair of governors on 3 May. 

In a letter dated 16 June, the governors informed Clifford of the grievance outcome, recommending she undergo a period of mediation with her headmaster. They also said all meetings between the two should be monitored by another staff member and written up. 

Clifford brought claims of unlawful disability discrimination in July, and her employment was terminated in December with three months’ notice. 

Judge Johnson ruled Clifford had been discriminated against due to her disability, victimised and suffered harassment by her former employer. He added that Gargen had further victimised and harassed Clifford when he informed other members of staff at a meeting on 3 May that she had raised a grievance against him. 

Andrew Willis, head of legal at HR-inform, said the case highlighted the difficulty where the person carrying out the alleged harassment was the senior most person within the organisation. 

“Internal harassment and bullying policies need to be aware of this and ensure there is an alternative process to follow in these cases, such as identifying a member of HR to raise concerns to,” Willis said. 

He added that providing an alternative individual to raise concern with would not only provide a process to tackle harassment but also encourage employees to speak up rather than feel they have nowhere to turn.

A remedy hearing is listed to consider any compensation to be awarded. Clifford could not be reached for comment. 

Helen Lynch, head of legal and democratic services at Durham County Council, said: “We have cooperated fully with the tribunal and are now carefully considering the ruling. As this is an ongoing legal matter, it would not be appropriate for us to comment further.”