Teacher who told Ofsted that school ‘hid naughty pupils in squash courts’ during inspection was unfairly dismissed, tribunal finds

Judge rules disciplinary process was ‘completely inadequate’ and that claimant’s concerns were protected disclosures

A teacher who outed his school for allegedly hiding poorly behaved pupils on a squash court during an Ofsted inspection and posted concerns about his workplace on social media was unfairly and wrongly dismissed, a tribunal has ruled.

Mr G Thomas, a former PE and maths teacher at Berwick Academy in Northumberland, told the Newcastle employment tribunal he had “no other option” than to post on social media after he had not been listened to in more formal settings. 

But the Academy’s investigating officer said that with “such stand-alone comments publicly made, I would[...] conclude it may be considered as disloyal and in breach of policy”.

Judge Tudor Garnon told the tribunal that the investigation and disciplinary process leading to Thomas’ dismissal were “deeply flawed on many grounds”.

Berwick Academy said that the social media posts, which it judged as “derogatory or offensive”, were the “sole reason for dismissal” as they were not protected disclosures, which Thomas had claimed.

However, the tribunal determined the posts were, in fact, protected disclosures and as the identity of the headteacher at the time, Ms Widdowson, was already in the public domain, no duty of confidentiality was owed.

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The tribunal also upheld “well-founded” claims for untaken annual leave and breach of contract relating to missing property, but dismissed a claim for unlawful deductions from wages.

Thomas was appointed as a core PE and GCSE maths teacher at Berwick Community High School (BCHS), now Berwick Academy, in September 2010.

The tribunal heard that, historically, Thomas and Widdowson, who was appointed as headteacher in April 2013, had been at “loggerheads”. Thomas had spoken out about his concerns for the school at a public meeting and Widdowson’s approach, but no action had been taken by the trustees.

A month later, while on sick leave, Thomas found out that children had been hidden in squash courts during an Ofsted inspection after receiving text messages from a colleague and parents saying some pupils known for misbehaving were removed from lessons to the courts, out of sight of the inspection team.

The tribunal heard this was the “last straw” for Thomas, and he formally raised his concerns to Ofsted through its online teachers’ portal, as well as sharing what he had sent with the Department for Education (DfE), his trade union and local MP.

The judge ruled his sharing of concerns with Ofsted were clearly protected disclosures, and noted Thomas later received requests for further information from Ofsted and the Department for Education (DfE). 

Garnon said the children being held in the squash courts, and the way in which the school dealt with the issues raised during the tribunal, led Thomas to conclude that trying to get the school to act was a waste of effort and his only option was to follow “an external whistleblowing route and trust the system to support [him]”. 

Widdowson resigned from her post at the end of February 2018 before the published Ofsted report labelled the academy as “inadequate” – the lowest of four grades.

On 1 March 2018 Thomas received a Facebook alert from Dr Henderson – a parent of a child at the school and a journalist at the Berwick Advertiser, which had published articles critical of the school, strongly voicing her concerns over the conversion of BCHS to Berwick Academy and the lack of scrutiny and accountability to the community. 

Thomas replied to Henderson – commenting on the local newspaper’s Facebook page – agreeing with some of her comments, but asking her not to excuse Widdowson as headteacher using “blunt” terms about her “ability to manipulate, persuade, bully and lie” while “the governors have been abject”.

These posts were reported to Mr Wilkes, the acting headteacher at the academy, who started a disciplinary process. 

An investigation into misconduct was held by Mr Griffiths, the acting deputy headteacher, and Ms Dalkin. Both were appointed by Wilkes. 

On 29 March 2018, the claimant said “the frustration of not being listened to had led him to use social media, no one was listening to concerns” raised earlier with the school leadership team (SLT) so he had “no other option”. 

Dalkin suggested he provide evidence of context and another meeting took place on 10 May. She concluded that the comments were “disloyal” and in breach of the school's policies.

“The investigation was one-sided and completely inadequate,” Garnon said, adding that Dalkin’s report concentrated on the posts and policies, despite the claimant providing “context documentation” such as his grievance and appeal, Ofsted's acknowledgment emails, a letter from Northumberland County Council, submissions to the DfE and his own statement. 

He also said Wilkes’ involvement was “considerable” in the process because he chose Dalkin to investigate, chose the HR adviser, and chaired the meeting in order to have someone there with dismissal powers and did not consider the full picture or ask “the essential question of why [Thomas] had made [the] posts.”

“The investigation and disciplinary hearing taken together were very unfair procedurally,” Garnon said, adding that Griffiths may well have been influenced to take a narrow view of the allegations “because dismissal was the result some people wanted due to the claimant’s whistleblowing being likely to cause them embarrassment”. 

An appeal was also held and the panel upheld the dismissal. 

At a remedy hearing on 14 June 2021, Thomas was awarded damages of £4,002 on the claim of breaches of contract; £755.50 for missing property and £3,246.50 for wrongful dismissal.

On the claim of unfair dismissal, Thomas was awarded compensation of £42,827.10, comprising a basic award of £3,429 and a compensatory award of £39,398.10.

The claim for compensation for untaken annual leave saw Thomas awarded £3,293.28.

Berwick Academy’s chair of school trustees, Donna Goddard, told the Berwick Advertiser the school was disappointed with the employment tribunal's decision.

"The academy wishes to move forward and continue working with relevant stakeholders to deliver the highest standards of education to its current and future pupils,” she added. 

Goddard also said the allegation that children hidden in squash courts during an Ofsted inspection in January 2018 was subject to an extensive internal investigation once it was brought to the academy's attention, but there was no evidence to substantiate the allegation.

Thomas told People Management that, although the tribunal ruled that he was wrongfully and unfairly dismissed, his teaching career was “ruined”. 

“The [tribunal] process allowed a failed school leadership, supported by their HR and legal representatives to create a version of events that they could spin, evidence and defend,” he added.