A sixth-form academy in north London has lost an employment tribunal because of its “failure to take on board” the complaints of a 71-year-old teacher about working in a classroom with no windows during Covid.
Lorraine Naidoo, a part-time English as a second language teacher, took the 16-19 Haringey Sixth Form College, to an employment tribunal over its actions in 2020.
Naidoo’s classrooms had no limit on the number of pupils to make sure they were social distanced and one had a window that wouldn’t open, a judgment published this week said.
She repeatedly raised her concerns because of her age, as older people were at higher risk of serious illness if infected with Covid-19.
Judge Jeremy Lewis backed her claim of indirect age discrimination.
While there was a general risk assessment, the tribunal judges said there was a “serious failure” to adequately consider if additional requirements were needed.
Judge Lewis, who signed the judgment, said there was also a “wholly unreasonable failure” to comply with ACAS fairness practices.
Haringey said it was “disappointed” and is considering an appeal. A separate hearing will consider compensation for Naidoo.
‘Stuffy and smelly’ room
Naidoo used two classrooms, one of which had a single window that was sealed shut.
The space tended to become “stuffy and smelly” in the summer, she claimed, which health and safety guidance has suggested is a sign of poor ventilation.
The sixth form said there was a system to draw in fresh air, but the judges said such systems were “recognised as less than satisfactory”.
Judge Lewis also said there was “no evidence” the sixth form was unable to buy carbon dioxide monitors before the government rolled them out in September 2021.
Naidoo was moved to a “smaller teaching room without notice” on one occasion.
In a risk assessment, Naidoo asked for each pupil to have their own table to help physical distancing, and windows that could be opened.
But Judge Lewis said there was a “failure to take on board and take into account” her concerns.
Naidoo was signed off with work-related stress at the end of September and never returned.
An occupational health report indicated that her concerns on the lack of safeguards was an “obvious impediment to her health recovering”, the judgment said.
It wasn’t until October 9 that a “nine-point plan” was sent by the sixth form that included the suggestion to “cap your group size”. It also said she could request personal protective equipment “at any time”.
But Naidoo said it didn’t “sound like the detailed formalised plan I requested”. Judge Lewis also said in “large part” the nine points were “merely a restatement of existing practice and guidance rather than being additional measures”.
In her formal grievance, Naidoo said her risk assessment was “ignored” and “made me feel that I was alone in dealing with the increased serious health risks I was being exposed to at work.”
Judge Lewis said the sixth form “did not deal with the issues raised promptly” and that there was “no adequate investigation” in response to Naidoo’s grievances.
There was a “wholesale and wholly unreasonable failure” to comply with the ACAS code of practice, which sets out principles for handling disciplinary and grievance situations in workplaces.
‘Timely reminder on health and safety’
Esther Maxwell, partner at Shakespeare Martineau, said the finding was a “timely reminder for schools and colleges to ensure that they take the health and safety obligations seriously, especially for the more vulnerable parts of their workforce”.
A sixth form spokesperson said it was “very proud” of how it dealt with the “many challenges arising from the pandemic, to ensure we continued to deliver a high-quality teaching and learning experience for our students, whilst doing our very best to comply with Covid guidelines, rule, recommendations and regulations and keep all within our college community safe”.
Its Covid data “evidenced the extremely low infection rates” at the sixth form, “with no serious cases of Covid-related illness”.
Naidoo started at the sixth form in 2008, but retired to work part-time in 2012. She had worked for less than three weeks of the September 2020 college year, which Haringey said was “unfortunate” as she was unable to see “the many measures we put in place for all in our college community, with a great deal of success”.
The Health and Safety Executive spot checks of schools in March 2021 found that 80 per cent had a good understanding of what it meant to be Covid secure.
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