University worker suspended for alleged grade tampering unfairly dismissed, tribunal rules

Judge criticises employer’s ‘overly hasty reaction’, saying it could have asked for an explanation from the staff member in the first instance

University worker suspended for alleged grade tampering unfairly dismissed, tribunal rules

A former university worker was unfairly dismissed after she was wrongly suspended for alleged grade tampering, a tribunal has ruled. 

The Newcastle-upon-Tyne Employment Tribunal found Durham University had wrongly suspended a worker following a media investigation into alleged grade tampering on entrance exams for grammar schools. 

The tribunal found Dr S Stothard, who worked for the university’s Centre for Evaluation and Monitoring (CEM) from December 2011 until her resignation in November 2018, had been constructively dismissed because she was suspended and subjected to disciplinary action, despite not being properly told the details of the alleged offences.

The tribunal also found Stothard, who had colitis – a condition that causes inflammation of the inner lining of the colon – was subject to disability discrimination because Durham University failed to provide a reasonable adjustment by not giving her these details or a timeline for when the investigation or suspension would conclude. 

The tribunal heard Stothard worked as an entrance test project manager for CEM, which runs exams for England’s 163 grammar schools. Stothard was the person who led on setting entrance test questions sat by candidates. 

On 27 September 2018, Stothard received an email from The Buckinghamshire Grammar Schools (TBGS), a company overseeing 13 grammar schools in Buckinghamshire, referring to an enquiry it had received from education sector magazine Tes. The enquiry concerned a story alleging that TBGS had been illegally marking admission tests differently to favour candidates who lived in the county – a claim that TBGS denied.

Get more HR and employment law news like this delivered straight to your inbox every day – sign up to People Management’s PM Daily newsletter

In a meeting on 28 September, Emma Beatty, executive director of CEM, advised her organisation’s leadership team that she had carried out a preliminary investigation into the allegation made in the article. She said she was concerned CEM employees had potentially been knowingly involved in manipulating entrance test results and that an investigation would be launched. 

The decision was taken at the meeting to suspend Stothard during the investigation. Joanne Race, director of HR and organisation development at Durham University, explained at the meeting that there was a need to protect the integrity of any potential evidence for an investigation. She said there was a desire to ensure Stothard and another worker were “protected from any subsequent allegations that they had tampered with any evidence”.

Stothard was informed of her suspension later that day, and the suspension was confirmed in a letter dated 1 October. On 12 October she wrote to Race to raise a grievance against the decision to suspend her and start a formal disciplinary investigation. She noted that CEM was not named in the Tes article, that she believed the suspension was a “knee-jerk reaction without any evidence of wrongdoing”, and that the suspension was a “serious breach of trust and confidence on the part of the university”. 

On 16 October, an HR business partner replied to Stothard to say the suspension was a “neutral act” that was within disciplinary regulation, and therefore a grievance could not be raised.

Stothard raised two further grievances on 23 October. She said Race had breached confidentiality in delegating her original grievance to others in her department and that the refusal to deal with this original grievance was a further breach of trust and confidence. Race replied by email the same day to suggest a meeting with Stothard, but the two were not able to meet, the tribunal heard.

On 6 November, Race asked that Stothard’s suspension be reviewed and wrote to the pro-vice chancellor of CEM to inform him that the third-party investigation body had secured all the evidence necessary for its investigation. As such, she said, there was no longer an HR-related reason for continuing Stothard’s suspension and she could return to work.

Race wrote to Stothard the next day and explained the investigation was “almost concluded” and that her suspension would be lifted with immediate effect. However, at this point Stothard was unwell, the tribunal heard. On a visit to her doctor on 12 November, Stothard was given a medical certificate stating she was not fit for work until 26 November. The note said Stothard suffered from “work-related stress causing flare up of colitis”. 

On 22 November, Stothard wrote to Beatty to resign from her role. In her email, Stothard said she felt she had “no alternative other than to resign” based on the university’s decision to “unfairly suspend” her, which “completely destroyed the trust and confidence in our working relationship”. 

She said: “At no stage have I been provided with any adequate explanation as to what I have allegedly done wrong; I have been wrongly subjected to disciplinary action; my grievances have been ignored.” 

The ET ruled Stothard had been constructively unfairly dismissed and subjected to disability discrimination given that Durham University had failed to make reasonable adjustments.

In his ruling, judge Sean Morris said the suspension was an “overly hasty reaction in all circumstances”, and Stothard was put at a “substantial disadvantage” because of her disability. 

The tribunal found the allegations of grade tampering were very serious and to be “accused by one’s employer is clearly calculated to seriously damage the relationship between employer and employee and, secondly, such damage was not avoided on the basis that the suspension of the claimant was a neutral act”.

The tribunal said a “very practical alternative” to suspension would have been to ask Stothard for an explanation of whether there might be any basis for the allegations made by Tes

Joanne Moseley, senior associate at Irwin Mitchell, said suspending someone was a “serious step”, and employers must have a good legal reason for doing so. “It should not be an automatic ‘knee jerk’ reaction to allegations of misconduct – which is what happened here,” Moseley said.

“It’s usual for employers to argue that they need to suspend someone to prevent them tampering with evidence but, as this case demonstrates, they have to substantiate those claims.” 

She warned employers to be “particularly careful” before suspending employees without evidence. “As this case demonstrates, if you suspend someone without a good legal reason, it is likely to damage the relationship of trust and confidence and may entitle the employee to resign and claim constructive unfair dismissal, provided they have at least two years’ continuous service.”

Commenting on the ruling to People Management, Race said Durham University was “carefully considering” the tribunal’s judgment. Stothard could not be reached for comment.