"5. ... The claimant commenced employment with the respondents as a teacher of mathematics on 23 August 1993 and worked at Hazelhead Academy until his employment was terminated on 30 January 2004.

6. In around February 2003 whilst marking preliminary exam scripts for

the higher mathematics class the claimant perceived there to be a number of discrepancies and errors in the markings of papers marked by his colleague Gwen Johnston. The claimant marked the errors and discrepancies with post-it stickers and gave them to the head of department Mr J Cameron. Mr Cameron asked the claimant to speak to Mrs Johnston himself. The claimant refused and demanded that Mr Cameron check them. Mr Cameron took the scripts and passed them to Mrs Johnston for checking. Mrs Johnston looked through the scripts and returned them to Mr Cameron indicating a willingness to accept the claimant's comments. The claimant was not satisfied with the outcome. He was dissatisfied about what he described as the 'twelfth script'. This was a reference to one of the twelve scripts which he had handed to Mr Cameron. He intimated his dissatisfaction to Mr Cameron. Mr Cameron advised that the marks would remain unchanged. The claimant accused Mr Cameron of pulling rank.

7. The claimant took no further steps in relation to the exam scripts until May 2003.

8. On or about 27^th May the claimant was involved in what he called an

'incident' involving Mrs Johnston. As a result of that incident he determined to take the matter regarding the marking of the preliminary exam papers further. He took his criticisms of Mrs Johnston's marking to Mr Wood, the Rector. As a result Mr Wood spoke to Mrs Johnston. He wrote a report dated 3 June 2003 (R50 pages 97 and 98). That report was the result of an investigation into the incident between the claimant and Mrs Johnston on 27 May 2003. In his conclusions Mr Wood states:

'It is clear to me that relationships between Mr Kerr and Mrs Johnston have deteriorated considerably since the difficulties encountered in staffing the mathematics trip to Paris in February and I am concerned that this might adversely affect the work of the mathematics department. Mr Kerr is convinced that Mrs Johnston played a significant role in persuading Ms McLean to withdraw from the trip. Whether or not that is the case Mr Kerr has begun to compile a list of his observations of what he regards as professional shortcomings on Mrs Johnston's part. In particular Mr Kerr drew to my attention flaws he had identified in Mrs Johnston's recent marking of examination papers. I had Mr Cameron investigate these. Mr Cameron satisfied himself and me that there was no undue cause for worry. Mr Kerr told me that he felt he had been treated shabbily.

I have spoken both to Mr Kerr and Mrs Johnston about my concerns and that whatever their differences I expect them to behave professionally towards each other and to co-operate in all matters relating to the work of the mathematics department. They have both agreed to do this. Mrs Johnston stated that she would welcome the opportunity to meet with Mr Kerr and myself to discuss matters openly and hopefully to come to some resolution. I conveyed this invitation to Mr Kerr. Mr. Kerr rejected this opportunity and stated that he had taken legal advice and intended to pursue matters in court.'

Mr Wood formed the view that the claimant was suffering from stress and advised him of the respondents' counselling service.

9. The written findings of Mr Wood's investigations were copied to

Mr Kerr and to Mrs Johnston. The next time the claimant saw the Rector he accused the Rector of 'covering up'. The claimant felt aggrieved. He opened the locked cabinet containing examination papers and removed a number of these.

10. The claimant had previously had professional dealings with Mrs A

Darling, the Area Education Officer and contacted her by telephone. She asked him to put any complaints he had in writing.

11. On 6 June the claimant separated two students who were fighting. He

escorted one to the Rector's office. The other escaped. As a result of his intervention the claimant claimed that he injured his finger.

12. The claimant went off sick at around that time. Whilst off sick he

determined to put his criticisms in writing. This he did on 23 June 2003 (R51 pages 99 to 103). In that letter he complained that his previous criticisms had not been properly investigated. He made a number of extremely critical observations regarding Mrs Johnston. He lists his complaints as follows:-

'(1) How I injured myself in the workplace and my view of the reasons why this took place.

(2) The stress caused in the workplace as a result of a fractured, fragmented, punctured and discontinuous executive.

(3) My job description as a mathematics teacher at Hazelhead Academy.

(4) My job description as a mathematics teacher at Hazelhead Academy relative to others in the mathematics department.

(5) How my job description and the job description of others in the mathematics department relate to the development plan.

(6) A detailed discussion of the contents of the recent letters I have sent to the Rector of Hazelhead Academy.

(7) My future employment with Aberdeen City Council.'

At no point in that letter did he direct Mrs Darling's attention specifically to the detail of his complaints regarding the marking of the examination scripts.

13. Also by letter dated 23 June 2004 (pages 105 to 123) the claimant

wrote to Mr Wood. In that letter he complained that there was a witch hunt against him. He made further complaints about Mrs Johnston stating that she disrupted the educational process 'for her own selfish and deceitful ends'.

14. He made reference to an incident involving Mrs Johnston in May 2003.

In general the terms of that letter to Mr Wood were disparaging, unpleasant, personal and not constructive. He carried out a direct comparison of his own employment circumstances with those of Mrs Johnston. He accused Mrs Johnston of doing little whilst he considered himself to be hardworking and industrious.

15. Upon receipt of that letter Mr Wood passed it to Mrs Darling.

16. The claimant deliberately held back his medical sickness certificate

submitting it in time for school starting. On 15 August the claimant telephoned Mrs Darling. He asked for a meeting. A meeting then took place on 18 August. The claimant attended with a witness. Mrs Darling was present with Mr Capstick from the Human Resources Department. During that meeting the complainant complained that Mr Cameron had failed properly to conduct an enquiry into the discrepancies regarding the exam papers. Mrs Darling asked the claimant for any papers he held. The claimant refused to hand over papers saying that he wished to take his complaint to the Scottish Qualifications Authority. The meeting on the whole was extremely heated. Mrs Darling found the claimant's behaviour at the meeting to be aggressive. He made disparaging remarks concerning Mrs Johnston. At that meeting Mrs Darling agreed to investigate the following complaints:-

1. That there was a 'marking scam' in operation in the mathematics department in relation to the higher prelim examinations.

2. That once identified, the matter was 'covered up' by the principal teacher of mathematics.

3. That when he made a further complaint to Mr Wood the matter was not dealt with to Mr Kerr's satisfaction.

4. That Mr Kerr's involvement in an event and alleged incident in which he sustained an injury to his fingers resulted in an exacerbation of his osteoarthritis.

17. Mrs Darling interviewed Mr Wood, Mr Murray, deputy head teacher

and Mr Cameron. As a result of her interviews, and in particular that of Mr Cameron, Mrs Darling formed the view that the papers had been marked appropriately. She further formed the view that the incident in which the claimant injured his finger had been properly dealt with.

18. She then suffered a bereavement in her family and went off sick.

19. During the period of Mrs Darling's sick leave no steps were taken by

the respondents to conclude the investigation which she had begun. Upon returning to work in November she reported to her line manager Mrs Landels. It was agreed that Mrs Fenton would investigate Mr Kerr's other complaints. These complaints were:-

'The issue of health and safety around security in Hazelhead Academy specifically about one parent's easy access to the school.

The issues about lack of supervision on coaches transporting pupils on an outing in 2001 and 2002 and about the deployment of staff during those outings.

The issue about implementation of the school's development plan, about the claimant's role and workload relative to the workload of other teachers.'

20. Mrs Fenton met with the claimant and his witness on 24 November.

The purpose of meeting the claimant was to try to better understand his complaints. As a result of that meeting Mrs Fenton visited Hazelhead Academy on 4 December and made a return visit on 5 December. She spoke to the organisers of the school outing complained of and took statements. As a result of her investigations she reached a conclusion regarding the claimant's complaints and wrote to him on December 18 (R81).

21. Mrs Darling also concluded her investigation at around the same time

and wrote to the claimant on 12 December 2003 (R80). In that letter she indicated her rejection of the allegation of a marking scam or a cover up.

22. The respondents then indicated to the claimant that he should return

to work. The claimant refused to do so and did not return to work again. On 22 December 2003 the claimant completed the respondents' standard resignation form (R84). In that form he stated the cause of resignation as being 'Utter disgust at the acts of bad faith and dereliction of duty by Mr Wood and Mr Cameron'. He also wrote on 22 December to Mrs Landels and Mr Wood (R86 pages 240 - 308).

23. The tribunal considered the terms of section 98 of the Employment

Rights Act 1996. It found that the claimant was dismissed within the meaning of section 95(1)(c). In reaching this conclusion the tribunal had regard to the investigation into the allegation made by the claimant of a 'cover up'. In particular, the tribunal had regard to the investigation by Mrs Darling. The tribunal found that the investigation by Mrs Darling was not a thorough and fair investigation. She stated in evidence that she regarded herself as conducting a qualitative review. She was, however, unable to explain or clarify what she meant by this. It was clear from her evidence that she did not look in detail at the investigations by Mr Wood or Mr Cameron and subject the actions of Mr Cameron or Mr Wood to critical appraisal. Further, the tribunal had regard to the delay in carrying out this investigation. Whilst the tribunal was of the view that Mrs Darling was not at fault in the circumstances for that delay, the tribunal found that taking account of both the delay and the inadequacy of the investigation the claimant was dismissed.

24. In that the claimant was dismissed the tribunal found that he was

dismissed unfairly."

"25. Having made these findings, however, the tribunal had regard to a

number of circumstances relevant to this case. In particular the tribunal had regard to the claimant's own demeanour and conduct as evidenced by productions and spoken to by witnesses. The tribunal found that the claimant deliberately withheld papers from Mrs Darling, being papers which he acknowledged related to the investigation she was carrying out. Further, the tribunal had regard to the extremely unprofessional and insulting language used by the claimant both in his letters of complaint to the respondents and at his meeting with Mrs Darling. The tribunal also had regard to and accepted the evidence of the Rector that he found the claimant's behaviour so disruptive and threatening that he took advice independently regarding his own position. Similarly the tribunal had regard to and accepted the evidence of Mrs Darling that she found the behaviour of the claimant so threatening that this behaviour contributed to the length of period off work.

26. In these circumstances the respondents' task of carrying out a thorough

investigation was rendered more difficult.

27. In considering the question of reinstatement the tribunal had regard to

the terms of sections 113 and 116 of the Employment Rights Act. The tribunal found that it would be unjust to order reinstatement due to the claimant's contribution to his own dismissal. For that reason the tribunal refuse the request for reinstatement.

28. Regarding an alternative remedy of re-engagement the tribunal again

had regard to the claimant's contribution to his own dismissal and found that it would not be just to order his re-engagement.

29. In considering whether to make a basic award of compensation the

tribunal had regard to the terms of section 122(2). With regards to the conduct of the claimant the tribunal considered that any basic award be reduced to nil.

30. In considering whether to award a compensatory award the tribunal

had regard to the terms of section 123(4) and (6). The tribunal found that the claimant made no attempt to find work choosing instead to devote himself to the pursuit of his various complaints against the respondents. The tribunal further found that it would be just and equitable in all the circumstances to reduce any compensatory award to nil.

31. Were it not for the aforementioned reductions the tribunal would have

awarded a compensatory award restricted to three months' wage losses (£5,248.50 net). This would be on the basis that the claimant would find work within that period. The evidence which was accepted by the tribunal was that there was considerable demand for Mathematics teachers. The claimant did not claim Job Seeker's Allowance or Income Support."