Soh v Imperial College of Science, Technology and Medicine (Victimisation Discrimination: Protected disclosure), Court of Appeal - United Kingdom Employment Appeal Tribunal, September 03, 2015,  UKEAT 0350_14_0309
|Resolution Date:||September 03, 2015|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Soh v Imperial College of Science, Technology and Medicine (Victimisation Discrimination: Protected disclosure)|
Appeal No. UKEAT/0350/14/DM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 7 July 2015
Judgment handed down on 3 September 2015
HIS HONOUR JUDGE DAVID RICHARDSON
MRS G SMITH
MR M WORTHINGTON
DR Y-A SOH APPELLANT
IMPERIAL COLLEGE OF SCIENCE, TECHNOLOGY AND MEDICINE RESPONDENT
Transcript of Proceedings
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VICTIMISATION DISCRIMINATION - Protected disclosure
UNFAIR DISMISSAL - Reasonableness of dismissal
On the question whether there were protected disclosures, the Employment Tribunal did not precisely apply the statutory test laid down in section 43A of the Employment Rights Act 1996. Darnton v University of Surrey  IRLR 133 and Babula v Waltham Forest College  ICR 1026 applied.
On the question whether the Claimant acted in good faith, the Employment Tribunal applied the law correctly and reached a conclusion which was not perverse. The fact that an allegation is made in defence to a complaint does not necessarily mean that it is made in bad faith. Not every ``ulterior motive'' is necessarily in bad faith. Street v Derbyshire Unemployed Workers' Centre  ICR 97 discussed.
On the question of unfair dismissal, the Employment Tribunal effectively started from its own finding as to the Claimant's state of mind when its task was to consider the decision maker's reasons and decide whether they were reasonable. In this and other respects it did not apply the test in section 98(4) of the Employment Rights Act 1996.
Appeal also allowed on subsidiary points relating to contributory conduct and an item of expense claimed.
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HIS HONOUR JUDGE DAVID RICHARDSON
Dr Yeong-Ah Soh (``the Claimant'') was employed by Imperial College of Science, Technology and Medicine (``the Respondent'') as a full-time lecturer in its Department of Materials until her dismissal on 11 January 2012. She brought proceedings against the Respondent on wide-ranging grounds. Following an 18-day hearing the ET sitting at London Central (Employment Judge Sarah Goodman presiding) delivered a Reserved Judgment dated 19 March 2014.
The Claimant made many complaints of unlawful race discrimination, harassment and victimisation. They were set out in a Scott Schedule containing no fewer than 289 allegations. The ET rejected these complaints in their entirety. We are not concerned with them in this appeal but we should record the painstaking care with which the ET dealt with them in its Reasons.
The ET rejected the Claimant's case that she was subjected to detriment and dismissed because of public interest disclosures; she appeals against that finding and the Respondent seeks to support it both for the reasons that the ET gave and on other grounds. The ET found that the Claimant was unfairly dismissed and that there should be a reduction of 20 per cent for contributory fault. The Respondent appeals against both these findings. The ET gave judgment for the Claimant in respect of a claim for expenses in the sum of £2,182.92. The Respondent appeals against that finding.
The Background Facts
The Claimant is a physicist with special research experience. She was an associate professor at Dartmouth College in the United States from 2003 until 2009. As the ET remarked, her credentials as a serious scientist are not in doubt.
The Claimant was first offered employment by the Respondent in September 2006. The offer was subject to a two-year probationary period. For various reasons she did not take up full-time employment until 1 July 2009. Her probationary period was extended until June 2010.
The Claimant took her first course of lectures in the spring term of 2010. It was the practice of the Respondent to seek feedback on lectures from students by means of a system of online evaluation (``SOLE''). The feedback was adverse. A formal performance review took place in August 2010. The Claimant was issued with a warning to improve. She undertook a second set of lectures in November and December 2010. Again, SOLE feedback was disappointing. By this feedback the Claimant was rated the worst of the 31 lecturers in the department.
The ET was critical of the way in which the Respondent handled the Claimant's probationary period. It was part of the Respondent's system that a lecturer should have an academic adviser during that period. The Claimant had two: Professor Alford in her first year of teaching and Dr McPhail in her second. Neither carried out the full responsibilities expected of an academic adviser. Professor Alford did not attend any of her lectures. Dr McPhail attended only two. The Respondent had informed the Claimant that Dr McPhail would be expected to meet her for at least six one-to-one sessions. Unfortunately, the Respondent did not also give this information to Dr McPhail, and he did not do so. He gave her feedback after the first lecture but not again.
By February 2011 Professor Alford was head of department. He met the Claimant informally on 3 February, warning her that she might fail her probationary period and offering her the option of a year's sabbatical. The Claimant submitted a grievance against him on 13 February 2011.
On 17 March 2011 a formal probation review meeting took place. Dr McPhail was a member of the panel. As the ET found (and as he later admitted himself) he exaggerated the extent to which he had met the Claimant to discuss her teaching. In a heated moment during the meeting he described the first of the two lectures he had attended as one of the worst lectures he had ever seen. The panel recommended that the Claimant's appointment not be confirmed. The Claimant instituted a grievance against Dr McPhail.
Where a panel recommends that an appointment not be confirmed, the Respondent's procedure provides for a second-stage review. This took place on 27 May 2011. By a letter dated 8 June 2011 the panel decided to extend the Claimant's probation until 30 June 2012, giving her a new academic adviser, recommending a mentor outside the department and laying down what was expected of the Claimant. The panel was critical of Dr McPhail's supervision.
As we have seen, to a significant extent the Respondent's concerns about the Claimant were based on student feedback through the SOLE system. The Claimant defended herself against assessment on this basis. She said her SOLE scores were poor because she did not ``dumb down'' the course as other lecturers did.
In her grievance concerning Professor Alford, submitted on 13 February 2011, she said the following:
``r. Through the conversations with the students, I also learned why I received a negative evaluation from a large number of students. The students stated the following: The content of my lectures were very challenging and half of the students are not interested in learning the material since they want to become bankers. Even though there are other courses that are also quantitative, such as strain and stress, they are not as hard for the students since half of the material they see in their 2nd year was already covered in their 1st year, and therefore they have less new material to learn. On the other hand, because they learn so little magnetism in their 1st year, almost all the material in magnetism is new to them, and therefore the course is hard. Also, they find other instructors more accommodating - they are used to being ``spoon fed'' - whereas I don't ``spoon feed them''. For example, some of the instructors told them what would be in the exam, and indeed the exam had those problems. One of my students appreciated that I did not ``spoon feed them'' because she learned that it was for her benefit in the long run. In addition, they are used to a passive style of learning, where the instructor delivers the material and the students quietly receive it. They want to learn the material at their own pace. I was the only instructor who really expected the students to answer questions, and that was unusual for them. Even though other instructors may ask them questions, they don't really expect the students to answer them.''
At the meeting on 27 May 2011 the Claimant stated the following in a presentation slide:
``... My course isn't easy, thus it leads to low SOLE scores. Some lecturers `dumb down' their lecture content to accommodate their students, but I'm not as accommodating which is why I have received low SOLE scores. If SOLE scores are to be used to judge teaching then this article should be taken into account. Students have told me that Dr McPhail spoon feeds them as to what is in the exam and I have the names of the students that have told me this.''
She was asked whether she was saying that Dr McPhail gave students the exam questions before the exams. She replied, ``Yes''.
Following the panel's meeting the Respondent took up with the Claimant what she meant by her statement concerning Dr McPhail. A meeting was held on 16 June for this purpose. The Respondent's record of that meeting was as follows:
``... at the meeting on Thursday 16th June ... you verbally confirmed that you did not intend to give the Probation Review panel the impression that Dr McPhail gives out the exam questions to his students. You explained that you had received reports from a couple of students that Dr McPhail provides more guidance to his students regarding the exams, but you emphasised that you were not told by the students [that] Dr McPhail gives out the exam questions.''
The Claimant was asked to confirm whether this was what she meant. After some delay she replied as follows on 6 July:
``... I clarified during the meeting on June 16, 2011 that some of the students had told me that Dr McPhail told them what would be in the exam and that indeed the exam had those...
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