M Ankamah v The Governors of St Mary Magdalene Church of England Primary School: 2302088/2024 M Ankamah v The Governors of St Mary Magdalene Church of England Primary School: 2302088/2024
EMPLOYMENT TRIBUNALS
Case No 2302088/2024
Between
Martha AnkamahClaimantThe Governors of St Mary Magdalene Church of England Primary SchoolRespondent
Before
Employment Judge Chairman:Mr Lee (instructed by Counsel) for respondentDate 21 July 2025
JUDGMENT
[1]The complaint of direct race discrimination is not well-founded and is dismissed.[2]The complaint of harassment on the ground of race is not well-founded and is dismissed.[3]The complaint of unfair dismissal is not well-founded and is dismissed;[4]The complaint of wrongful dismissal is not well-founded and is dismissed.
REASONS
[1]The claimant was employed as teaching support assistant. The claims in this case arise out of an incident involving the Claimant and a pupil – Child A – on 22 June 2023, the subsequent investigation, dismissal, and appeal against that dismissal.[2]The claimant brings the following complaints: 2.1. Direct discrimination on the grounds of race (s 13 Equality Act 2020) (“EQA”); 2.2. Harassment related to race (Equality Act 2010 section 26) 2.3. Unfair dismissal (Employment Rights Act 12006 s 94) (“ERA”). 2.4. Wrongful dismissal / Notice pay. The respondent defends the claims. It says:-[4]The issues were discussed at a case management hearing before EJ Hart on 18 November 2024. They were further discussed with the parties at the start of the hearing and agreed to be as follows:[1]Unfair dismissal1.1 It is not disputed that the claimant was dismissed by the respondent.1.2 What was the reason or principal reason for dismissal? The respondent says the reason was conduct. The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct.1.3 If the reason was misconduct, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:1.3.1 there were reasonable grounds for that belief;1.3.2 at the time the belief was formed the respondent had carried out a reasonable investigation;1.3.3 the respondent otherwise acted in a procedurally fair manner;1.3.4 dismissal was within the range of reasonable responses.[2]Wrongful dismissal / Notice pay2.1 What was the claimant’s notice period? The respondent says it was 9 weeks.2.2 It is not disputed that the claimant was dismissed without notice.2.3 Did the claimant do something so serious that the respondent was entitled to dismiss without notice i.e. was the claimant guilty of gross misconduct?[3]Direct race discrimination (Equality Act 2010 section 13)3.1 The claimant is black and compares herself to white or Asian staff.3.2 Did the respondent do the following things:3.2.1 Ms Wainwright report the Claimant to LADO;3.2.2 Ms Wainwright report the Claimant to the police for criminal investigation and prosecution for an alleged “assault by beating a child”;3.2.3 Ms Wainwright support the criminal prosecution of the Claimant in that:3.2.3.1 She put forward to the CPS two witnesses, Mr Simon and Ms Badesha, to testify again the Claimant; and / or3.2.3.2 She supplied the CPS with evidence to use in criminal proceedings.3.2.4 Subject the Claimant to a (flawed) disciplinary procedure/process in that:3.2.4.1 During the investigation Ms Wainright:3.2.4.2 During the disciplinary hearing, the respondent failed to provide or play the complete CCTV footage.3.2.5 Summarily dismissing the Claimant.(a) asked leading questions;(b) conveyed her own personal view when she was supposed to be independent;(c) ignored the fact that the Claimant was hurt in the incident; and / or(d) incorrectly stated that no witness saw the student hitting the Claimant.;(e) told the Claimant that “crossing your arms can be interpreted negatively” (meaning that the claimant folding her arms during the incident indicated that she had wanted to harm the student/ pupil).3.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says they were treated worse than Ranj Badesha and / or a hypothetical comparator (white or Asian staff member of comparable level and circumstances with the Claimant).3.4 If so, was it because of race?3.5 [If disputed: Did the respondent’s treatment amount to a detriment?][4]Harassment related to race (Equality Act 2010 section 26)4.1 Did the respondent do the following things: 4.1.1 The claimant relies on the same treatment as set out in paragraph 3.2 above.4.2 If so, was that unwanted conduct?4.3 If so, did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?4.4 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.4.5 If so, did it relate to race?[5]Remedy for unfair dismissal5.1 What basic award is payable to the claimant, if any? 5.1.1 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?5.2 If there is a compensatory award, how much should it be? The Tribunal will decide:5.2.1 What financial losses has the dismissal caused the claimant?5.2.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?5.2.3 If not, for what period of loss should the claimant be compensated?5.2.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? 5.2.4.1 If so, should the claimant’s compensation be reduced? By how much?5.2.5 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?5.2.5.1 Did the respondent or the claimant unreasonably fail to comply with it?5.2.5.2 If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?5.2.6 If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct? 5.2.6.1 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?5.2.7 Does the statutory cap of fifty-two weeks’ pay or £105,707 apply?[6]Remedy for discrimination6.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?6.2 What financial losses has the discrimination caused the claimant?6.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?6.4 If not, for what period of loss should the claimant be compensated?6.5 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?6.6 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?6.7 Should the tribunal award aggravated damages?6.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?6.8.1 If so, did the respondent or the claimant unreasonably fail to comply with it?6.8.2 If so, is it just and equitable to increase or decrease any award payable to the claimant?6.8.3 By what proportion, up to 25%?6.9 Should interest be awarded? How much? The Hearing 5. The hearing took place over 4 days. The tribunal reserved its judgment because there was insufficient time to deliver an oral judgment. 6. The start of the hearing was somewhat delayed by technical issues and the respondent’s failure to file physical bundles. The latter was resolved by late morning. The tribunal acceded to a request for Ms Rowe to give evidence via CVP. Ms Rowe was a volunteer governor who had moved to Scotland since the start of the claim and who had sole childcare responsibilities. The claimant did not object. Delays to the hearing timetable were due in part to extra time for Mrs Rowe’s remote participation and also to technical difficulties and time taken to view manipulate and cross-examine on the CCTV evidence in the hearing.
The Hearing
[7]The claimant informed the tribunal that she continued to experience anxiety and depression following the incident. We were asked to and agreed to provide breaks as and when required for C, and we noted Mr Ijezie’s request not to draw any adverse inference from behaviour or conduct of the claimant during the hearing. We record that we did not do so, but found nothing in the claimant’s demeanour, answers or conduct during the hearing that would have given a tribunal any reason to draw any such inference.[8]The tribunal also made an anonymisation order in respect of the identification of Child A. The tribunal rejected an application by the claimant to extend that restriction to include the name of the claimant. The reasons were given in a separate judgment provided to the parties. Pending the delivery of that judgment and proper consideration of the relevant balance of rights and interests the tribunal put in place an interim reporting restriction on both the identity of Child A and the name of the claimant.[9]The issues had been agreed between the parties.[10]It was agreed that remedy would be dealt with at a separate hearing if required but that any relevant evidence relating to Polkey or adjustments for contributory conduct would be dealt with at this hearing. In light of our judgment there will be no remedy hearing.[11]We had a hearing bundle of 413 pages and a supplementary bundle of 158 pages. We were also shown CCTV footage of the incident which was at the heart of this claim from cameras in the Lobby, the School Office, and the Reception area which all recorded parts of the incident as it developed.[12]The parties provided us with written opening statements, and the respondent had prepared a chronology and cast list.[13]We had witness statements and heard oral evidence from: 13.1. The claimant on her own behalf; 13.2. For the respondent:-[14]Mrs Ranj Badesha who was the deputy headteacher and who witnessed and was partially involved with the incident involving C and Child A which led to C’s dismissal; 14.1.1. Victoria Wainwright who was an executive coheadteacher. Mrs Wainwright conducted the investigation into the incident involving the claimant and child A; 14.1.2. Deborah Rowe who was a Foundation Governor and the dismissing officer; 14.1.3. Dr Peter Gregory who was a School Governor and who chaired the Appeal panel.[15]Both parties made closing submissions, and we have taken both parties’ submissions fully into account.
Findings of Fact
[16]We make the following findings of fact on the balance of probabilities and in light of the totality of the witness evidence we have read and heard and the documents to which we have been referred. We reference only those matters which we have considered necessary for our conclusions.[17]The claimant began her employment with the respondent on the 16th of September 2014, initially as a midday meal supervisor at a different school within the respondent’s foundation but from January 2015 she began working as a learning support assistant and was later moved to the respondent school.[18]The respondent was a mainstream Church of England school in the Woolwich area with a significant number of children with special educational needs. It was one of two schools within a Federation called the Koinonia Federation. The Federation employed an HR specialist.[19]The school and the Federation operated a number of relevant policies: 19.1. The Koinonia Federation Code of Conduct; 19.2. The Koinonia Federation Competency Framework; 19.3. Koinonia Federation Behaviour Documents 19.4. The Koinonia Federation Special Educational Needs and Disability Policy; 19.5. The Federation Restraint Policy; and 19.6. The Koinonia Federation Disciplinary Policy.[20]The provisions of these documents that are relevant to our decision are referred to in our analysis and conclusions below.[21]At her request, the claimant soon began working with children in class providing 1 to 1 support. She was given an induction and then observed how this worked with the children. By the time of the incident involving Child A she had worked effectively and successfully with approximately 10 children with special educational needs.[22]A single incident had occurred before the events in question when the claimant’s finger had been broken when a child threw objects in a class which struck her. She was compensated by the school for her injuries.[23]Before the incident in issue and her subsequent suspension and dismissal the claimant had an unblemished conduct record and in November 2018 was given an award for work and keeping children happy and safe at the school.[24]In 2018 there was an incident in which a former staff auxiliary teaching assistant, a Mr McMahon who was white British, intervened to restrain a child who appeared to be about to throw a chair in circumstances where there was a risk of injury to children or staff. No disciplinary action was taken against Mr McMahon. The claimant says she witnessed the incident and relies on Mr McMahon and his treatment as a comparator. In cross examination she was asked if Mr McMahon did anything inappropriate and the claimant said that he was stopping a child from throwing a chair. There was no evidence before us that Mr McMahon’s conduct or use of physical contact in that situation was inappropriate.[25]To assist children with special educational needs the school used a Safe Person, or Safe Adult system. The safe person was a learning support assistant who would typically attend classes and sit next to the child, assist with their classroom learning pursuant to their Personal Learning Plan (“PLP”), and help the teaching environment by working to calm their child, stop disruptive behaviours and endeavour to keep them in the classroom.[26]The claimant first received training for her role in February 2019 for five mornings about Supporting Students with ASD in Mainstream Primary Schools. She also received between 2021 and 2023 various training courses in supporting children’s learning and SEN support and learning techniques, safeguarding and transactional behaviour training. We were not provided with detailed evidence of the contents of these courses.[27]Mrs Wainwright told us that the training the claimant had been given by the school internally and through third party trainers as listed above included as part of the courses some learning about techniques for communicating with children with specialist needs which could be described as de-escalation training. We accept that evidence. Our conclusion is supported by the fact that the claimant accepted in her oral evidence that she was aware of techniques such as talking to children at eye-level to keep them calm and focussed and she was aware that the use of physical contact with children should only be used as a last resort and then only the minimum force for the least amount of time necessary to keep the child or others safe or to prevent damage to property should be used.[28]Mr Gregory and Ms Wainwright explained that there was a distinction between training in de-escalation techniques, and physical handling training, formerly referred to a restraint training. The former in broad terms involves techniques for calming children and reducing tension, the latter involves training in the use of appropriate physical restraint holds and contacts.[29]The claimant was not given specific de-escalation or physical handling/restraint training courses.[30]There were two other learning support workers who worked as the Safe Person with Child A. George was assigned as Child A’s safe person for three days per week, Natalie and the claimant were assigned to Child A for one day per week each. George (who was white British) had received physical handling training. Such courses were provided by specialist third party providers. We find that they would have included further training on when it was appropriate to use physical restraint techniques. Natalie (who was black) also received such training. Two other staff members were referred to who had had physical handling training. Mrs Kelly (who was nonwhite British, possibly of Turkish ethnicity) who was the head of Learning Support, and Mrs Hoon, who was the Assistant Head and had overall responsibility for SEND and Child A.[31]Child A was an 11-year-old with special educational needs. He was a physically well-developed and strong child who appeared to be only slightly shorter than the claimant in height. It is common ground he experienced social and emotional challenges and anger issues. His behaviour was characterised by frequently elevated levels of irritation and temper tantrums. We accept the claimant’s evidence, which was borne out by the CCTV we witnessed, that as his level of anger escalated, he would become increasingly aggressive and would then often hit out and use violence.[32]It was also a characteristic of his behaviour that when he had been triggered by a, possibly minor, event he would frequently say that he was leaving the school and going home. On the basis of the witness evidence before us we find that his habit in those circumstances would be to leave his classroom in a somewhat dysregulated state, take his bag, go to the school office to recover his phone (where they were stored in plastic boxes). He would then typically then go to the senior management office to complain about what had upset him. Staff, including his Safe Person would then seek to calm him down, discuss the situation with him and, on many occasions succeed in negotiating a return to class with him.[33]By the time of the incident the claimant had been Child A’s safe person for five years. She had begun in Year 2. At that stage she was frequently hit by Child A but she tolerated that while she tried to build a relationship with him. By Year 3 she had established a good relationship with him, and we find she had built a relationship of trust. The incident occurred while Child A was in Year 6. He left the school at the end of the academic year.[34]Child had a PLP for Year 6 the contents of which the claimant was familiar with. The PLP provided amongst other things ; 34.1. Working towards staying in class 90% of the time, learning to answer questions and take turns speaking, link simple sentences and complete basic mathematics tasks; 34.2. Ways to help him achieve his desired outcomes included : “Remain calm and explain to help me understand what I did wrong” “Do not shout at me, try to make me understand why what I did was wrong” “begin questions with my name to get my attention” “give me choices” and “Give me breathing time if I get frustrated”.[35]We find that the school was aware of Child A’s behaviours and often relied on the claimant to attend to calm Child A because she was successful in getting him to listen to her. We find this occurred at times other than when the claimant was specifically allocated as his safe person. The incident happened on a day when the claimant was assigned to Child A as his Safe Person.[36]We accept the claimant’s evidence that in her time acting as a one to one with Child A she had developed a strategy for dealing with his behaviour when he expressed an intention to leave the school. That strategy involved the claimant taking possession or control of either the claimant's mobile phone or his school bag. She had found that he would not leave the school unless he was in possession of both of those items. The claimant’s strategy therefore when child A was angry and upset and saying that he wanted to leave the school and go home was to invite him to go to with her to the lobby when she would then negotiate with him to get back one or both of the items. That process of negotiation allowed her to calm him down and he would often agree to return to class with her. Typically, when implementing this strategy, she would reach out to signal that he should give her his bag or phone as part of the exchange and he would usually hand it over.[37]We find that the respondent was aware of and did not disapprove of this strategy. We accept the claimant’s evidence that it was used frequently was frequently successful in calming down child A and getting him to return to class. Events of 22 June 2023[38]The incident took place at about midday.[39]Leading up to the incident we find that an incident had occurred in class between Child A and Teacher X who was a former teacher at the school (and who the claimant relies upon as an actual comparator).[40]In broad terms Child A had hit another child, Child B on the head while the claimant - his Safe Person on that day - was absent having been temporarily sent away to escort another child. Teacher X shouted at Child A and then, she claims she asked Child A how he would feel if Child B had hit him on the head. The other children present said that Teacher X had told Child B to hit Child A back. Child B did so with some force, Child A responded physically and disruption followed. Teacher X pushed Child A back, grasping his shoulders to do so, and he pushed or struck her back. Teacher X then asked other children to control Child A and take him downstairs to management. A number of the children present then appear to have pulled Child A away and out of the class. Following that incident Child A was extremely agitated and ran out of his classroom and down the stairs to the lobby.[41]We interpose to record that Child A’s parents complained about this incident and Teacher X was investigated over that conduct. The investigation into her conduct which reported on 10 July 2023 recommended that all staff at primary campuses should receive de-escalation training and that Teacher X be subject to a disciplinary. In Teacher X’s disciplinary the disciplinary officer preferred the evidence of Teacher X as to what had been said over that of the children present but found that Teacher X had pushed Child A and asked other children to take him out of the class. At the Disciplinary Teacher X made an allegation that the claimant had previously pinched Child A (an allegation flatly denied by the claimant) which Teacher X had never reported. Teacher X was contrite and acknowledged that they had mishandled the situation. There was no evidence that the respondent had made a safeguarding referral in respect of Teach V’s conduct towards Child A and the outcome of Teacher X’s disciplinary (which was conducted by a different Executive Co-headteacher) was a first written warning. Teacher X was Asian British. The first physical interaction – school office[42]The CCTV footage showed, we find, as follows:-[43]Child A carrying his school bag on his shoulders ran down the stairs into the lobby area. At that moment, the claimant was approaching the foot of the stairs in the opposite direction.[44]The claimant said in her witness statement that she tried to calm Child A down. In her oral evidence she said that as she approached the stairs other children from Child A’s class were at the top of the stairs calling down that Child A had hit Teacher X because they all knew she worked with Child A. She said that she heard Child A shouting that he was going home and didn’t want to stay at the school. She said she asked Child A to give her his bag – this was, she said, part of her usual strategy for calming Child A and persuading him to return to class and not leave.[45]The CCTV does not have any sound, but there appears to us to have been time for the claimant to have spoken only a few words to Child A at most, although she appears to have been indicating by pointing that Child A should go and sit down in the lobby chairs so we find that she did try to deploy her usual de-escalation strategy at first.[46]However, the CCTV shows Child A quickly turning right and slightly away from the claimant to run into the school office for the purpose of getting his phone.[47]We find the claimant made an attempt to grab at his arm or bag as he moved away from her and through the office door. At that instant there were no other members of staff visible in the immediate vicinity. We find that her reaction was instinctive.[48]The school was located on a busy road. Access to the road was directly opposite the door to the reception area through a sliding gate which was activated by a button set high on the fence by the gate. The fence stood atop a low wall.[49]The claimant told us, and we accept without reservation that her actions at that instant and throughout the incident were motivated by a genuine concern about the safety of Child A. We observe that all of her actions visible on the CCTV are consistent with her having that as a primary concern. Her immediate concern during the first phase of the incident was that he would follow up on his threat to leave the school. Later her concern focussed on the risk that he might harm himself when kicking a glass door to exit the reception area and run towards the gate.[50]The claimant told us that on this day Child A was exceptionally upset. We accept that evidence. It is highly likely to have been the case that Child A was more than usually upset after having been shouted at by a teacher, struck by another child at the instance of, or at least so he understood, a teacher, been pushed away by a teacher and then escorted from a classroom by a significant number of pupils. All of these were events which, it is plain from his PLP, would trigger an adverse reaction. The claimant’s account is consistent also with the involvement of other children in the incident and Child A’s anger and control issues and his pattern of wanting to leave school and go home.[51]CCTV footage from inside the school office shows that as Child A moved through the threshold of the school office, the claimant grasped Child A’s rucksack straps across his chest from her position just outside the office doorway and she continued to hold onto those straps as he leans away from her with his full weight. She was pulled slightly inside the office.[52]After a short contest Mrs Badesha arrived outside the office doorway. She places her hands ahead of the claimant between the claimant and Child A and Child A breaks free. He responds very aggressively and charges back threateningly towards the claimant and Ms Badesha before stopping short. Ms Badesha places one hand on the claimant’s arm and slightly pulls her arm back away from Child A.[53]The claimant says at this point Ms Badesha asked her what to do. We prefer Mrs Badesha’s evidence as being more plausible in the circumstances and consistent with her actions that at this point she told the claimant to let him have his phone.[54]Child A then grabs his phone from storage boxes and aggressively pushes the claimant and Mrs Badesha backwards through and escapes between them and runs into the reception area towards the glass exit doors.[55]The interaction between the claimant and Child A in the threshold of the school office was the first of the moments relied upon by the respondent as amounting to the use of inappropriate force to retrain Child A and/or as amounting to unprofessional conduct in breach of the Foundation’s Code of Conduct.[56]There was a large glass panel between the reception and the school office which means that the reception area was visible from the school office.[57]Shortly before Child A breaks away Mr Simon Lockwood, a premises assistant on the maintenance staff, enters the reception area. He appears to be watching the incident in the office though the glass panel. Child A runs through the door and past Mr Lockwood, who puts out an arm around Child A’s waist level in an apparent attempt to delay him from reaching the glass exit doors. Child A pushes through - Mr Lockwood does not persist with his attempt to detain Child A after that point - and out of the doors towards the gate. Mr Lockwood runs after him, past him and physically stands in front of the high-level button which operates the gate.[58]Inconclusive images appear to show Child A climbing onto the low wall to try to reach the gate switch, and Mr Lockwood placing himself in the way. Child A seems to lean against Mr Lockwood. There is one instance of an instant in which Child A appears to pull at Mr Lockwood’s T-Shirt but immediately lets go. Mr Lockwood appears not to respond to the pulling of his shirt. He lifts his hands upwards and away from Child A. Child A otherwise seems generally to persist with trying to position himself near the gate and to exhibit frustration.[59]The claimant had pursued Child A and followed Child A and Mr Lockwood outside. The claimant positions herself close to Child A, who swipes at her and she appears to try to parry the Child’s arm. Ms Badesha arrives and positions herself close to Child A between Child A and the claimant. Ms Badesha stands close to him and appears to engage him in speech. The claimant moves back and stands slightly further away from Child A and Ms Badesha.[60]After a few seconds of talking Child A returns to the reception area followed by Ms Badesha and the claimant. He remains visibly agitated. The claimant uses her electronic pass to open the door to allow Ms Badesha to leave the reception. Ms Badesha moves next door to the school office. We accept her evidence that she was intending to call Child A’s parents.[61]Ms Badesha left the claimant alone in the reception area with Child A. Mr Lockwood stood guarding the open door. The claimant positions herself relatively close to the chair with Child A, standing over and facing him but to the side. One sees her pointing with her left hand towards the lobby area. We find that she was encouraging him to agree to come with her into the Lobby area to discuss his concerns in accordance with her experience of the previously successful strategy she had adopted with him. She was also, we find, positioning herself protectively to block his access to the open glass doors in case he should try to push his way out again.[62]He appears to be reflecting but then suddenly becomes agitated and without warning stands and collides, chest to chest, with the claimant.[63]The claimant then appears to place her hands under Child A’s armpits and to move him back down into the chair. She remains standing but bent over Child A. There follows a scuffle with both the claimant and Child A using their hands and arms. Child A appears to be grabbing and hitting out at the claimant, the claimant appears to be diverting blows and trying to grab Child A's wrists. During this Mr Lockwood closes the door and remains on guard outside looking in.[64]The claimant then stands back and Child A gets up, and after an exchange of what appear to be angry words from Child A he darts to the claimant’s left towards the glass door.[65]The claimant responds, we find instinctively, to position herself in front of the doors and tries to grab him as if to stop him from leaving. She grabs at his rucksack straps and they are both using their weight against each other. At this point, the Claimant’s right hand moves to Child A’s neck and she uses her hand from this position to push Child A back towards the chair.[66]The use of her hand on Child A’s neck is one of the incidents of inappropriate use of force which the respondent relies upon.[67]Child A’s hands are both raised. We find that he pulled at the claimant’s clothing because the claimant’s lanyard pass falls onto the floor.[68]Child A and the claimant both appear to become unbalanced. Child A falls backwards into the chair, the claimant becomes unbalanced, and her weight moves over him and her head moves towards the wall behind. She appears to try to brace herself against the chair using her shins against the front of the chair. There follows footage which appears to show the claimant and Child A pushing and pulling each other. The claimant may well initially be trying to regain her balance, but her hands remain on Child A’s upper arms and chest as she does so. Although his hands are not visible it appears likely that Child A is pulling at the claimant’s clothes at the same time, making it more difficult for her to regain her balance.[69]Once she regains her balance she remains standing directly in front of the chair with Child A. Her feet are close to his.[70]There then appears to be an instant in which the claimant aims a kick at Child A’s leg with her right foot. Mrs Wainwright in her description of this incident to the LADO (see below) described the movement as a kick. It is, however, clear to us that the claimant, as she stated in her evidence, did not try to kick Child A at all. A careful viewing of the footage shows that Child A had put his own foot on top of the claimant’s foot (something which he also did and tried to do before the claimant’s action). The claimant quickly pulled back her foot then replaced it. In the context of the exchanges the movement superficially appears aggressive and resembles a kick, but it is clear to us that there was no kick and no attempt to kick Child A.[71]Child A then stands. At this point Ms Badesha re-enters to reception area from the office next door. Child A elbows the claimant and begins aggressively hitting out and grabbing at the claimant at chest height. The claimant responds by pushing back at Child A to create distance between them. Ms Badesha remains standing back at a distance from them at this point. As the scuffle continues the claimant moves towards Child A and presses him back down towards the chair. Child A responds aggressively. The claimant again stands over Child A keeping him in the chair. She makes attempts to grab Child A’s phone (which was in his right hand furthest from the claimant), and Child A responds by moving his arms and hands aggressively, resisting giving up his phone and by grabbing the claimant’s clothing at her chest and pulling - we so infer because although his arms are not clearly visible behind Ms Badesha, the claimant’s clothing is clearly dishevelled after this exchange.[72]This exchange, and the claimant’s efforts forcibly to snatch Child A’s phone from his hands is the third example of the use of inappropriate force relied upon by the respondent.[73]Ms Badesha moves in to intervene. She tries to place her arms between the claimant and Child A. At one point she puts her hand on the claimant’s arm and pulls it away, but by this time the claimant was holding Child A’s phone in that arm.[74]Child A had become markedly dysregulated by this point. He throws his arms about, kicks out with his legs, stands and throws a pile of papers across the room and stamps on the claimant’s dropped pass. Ms Badesha moves away to the corner of the room. The claimant has disengaged by this point but continues to stand blocking the doorway with her back to the door. Mr Lockwood remains guarding the door from outside.[75]Child A moves to the reception desk, hammers on it with his fist, then takes a phone call from, we find, his father. Ms Badesha leaves the reception again, taking Child A’s phone with her, leaving the claimant alone with Child A.[76]Child A finishes his call, still visibly agitated. He throws the phone he has been using to speak with his father into the office area. He moves to press the glass door lock at the side of the doors. The claimant, puts herself again in front of the exit doors, initially putting her hand on Child A’s upper arm to guide him away from the door but then she appears to be speaking to him, with her hands low, but on occasion pointing towards the chair encouraging him to sit back down.[77]Ms Badesha re-enters and engages Child A in conversation and moves towards him and guides him with her hands on his upper arms. She too is clearly encouraging him to return to his seat, although Child A continues to pace around the room and to push on the glass doors, he eventually sits back down. Ms Badesha picks up the papers which Child A had thrown on the floor and replaces them. She then leaves the room, leaving the claimant alone with Child A still standing in front of the glass doors.[78]A moment later Child A stands up and leaves reception to go into the school office. The claimant moves away from the doors to the reception desk before herself leaving the reception area having, it appears to us, seen through the glass Child A in the school office. She joins Child A into the school office, where she positions herself in front of the phone storage boxes.[79]A few moments later Child A, now somewhat calmer returns to reception accompanied by the claimant and sits down. The claimant follows him in and stands on the opposite side of the room. Mr Lockwood remains on station outside the glass doors.[80]Ms Badesha returns with a cup of water for Child A. He takes some water but then becomes visibly more agitated in his seat. Ms Badesha moves to his chair and crouches to engage him in conversation at eye level. His dysregulation continues, other staff members come in and are sent out by Ms Badesha. He gets up at and punches and kicks violently at the glass doors. Ms Badesha moves towards him and the claimant moves alongside her closer to the door to partially block Child A’s access. Child A pushes the claimant away. Ms Badesha continues to talk to him, and eventually he returns to his seat and she holds his hands and knees and speaks to him at eye level.[81]The situation then stabilises until Child A’s father arrives to take him home.[82]The documents in the bundle indicate that Ms Hoon who appears to have had principal responsibility and training for safeguarding was absent on the 22 June 2023. Actions taken after the Incident[83]Mrs Badesha informed Mrs Wainright of the incidents between the claimant and Child A on the same day, 22 June 2023. Mrs Wainwright watched the CCTV footage contacted the designated safeguarding lead, Ms Sheath, who appointed her to investigate the conduct of the claimant.[84]Mrs Wainwright took statements that afternoon from Mr Lockwood, Ms Badesha, and Ms Louise Etherington, an administrative assistant who was present in the school office.[85]Child A’s parents were also informed about the incidents involving Teacher X and the claimant. A very short statement was received from Child A (we think in connection with the investigation into Teacher X’s conduct) on 4 July 2023 in which Child A said the claimant grabbed his arm, then took his phone and that the claimant was pushing him into a chair and Mrs Badesha had to break them up. He couldn’t really remember anything else.[86]Local Authorities have a duty under section 47 of the Children Act 1989 if they have reasonable cause to suspect a child is suffering significant harm. The Statutory Guidance for schools on “keeping children safe in education 2023” imposes requirements on schools to, amongst other things, maintain safeguarding leads, recognise that the welfare of the child is paramount, inform the member of staff as soon as possible of the likely cause of action ‘guided by the LADO and the police where necessary”. The London Child Protection Procedures in force at the time set out, in section 5, the role of the employer in responding to an allegation or concern. In summary the employer should conduct a fact find with an open mind, and follow internal procedures, then decide if the issue should be dealt with as an allegation or merely as a concern. This decision was to be taken in consultation with the Local Authority Designated Officer (LADO) within Royal Greenwich’s Children’s Services. The employer’s designated safeguarding lead is required to report the possible allegation within one working day and before any further investigation. Serious allegations should be immediately reported to the police. The initial discussion with the employer’s relevant safeguarding lead and LADO is to ascertain if the circumstances were merely a concern or amounted to an allegation which required to be dealt with through the LADO/LCPP procedures.[87]Mrs Wainright spoke to the LADO on the phone on that day and submitted a report form.[88]Mrs Wainwright called and wrote to the claimant on Friday 23 June (the claimant was off-sick on that day) notifying her that she was suspended on full pay pending investigation into the use of inappropriate force on a student.[89]She held a meeting with the LADO on 27 June 2023. The purpose of the meeting was to determine whether an incident was sufficiently serious that harm was or may have been caused to a child or that the individual poses a risk of harm to children so as to amount to an ‘allegation.’ Mrs Wainwright’s report to the LADO used emotive language. It identifies three incidents of physicality, one was ‘exceptionally aggressive’ and included ‘manhandling’ Child A back into chair, the pushing of Child A into the chair by his neck, the appearance (which we have found was clearly not the case) of kicking and ‘possibly’ pushing/hitting. It refers also to the claimant being in Child A’s ‘personal space.’ The LADO viewed the CCTV and found that the claimant’s ‘stance was intimidating’ as she pointed Child A back towards the lobby area, that she used physical force to push him back into the chair and used her hand on his neck to guide him forcefully.[90]The LADO determined that the threshold was met – i.e. that there was an ‘allegation’ notwithstanding that Child A did not report any bruises. The LADO required Mrs Wainwright to share the footage with the police officer allocated to the school on the same day.[91]The LADO and the police officer attended an ASV (Allegations against Staff and Volunteers) meeting with Ms Wainwright on 28 June 2023.[92]Following the incident and the referral of the matter to the police, the claimant was arrested on 30 June 2023 and released on bail pending investigations by the police. The police asked Mrs Wainwright to identify witnesses, and she, Mrs Badesha and Mr Lockwood all provided witness statements in support of the prosecution case (although Mr Lockwood did not attend the trial). The claimant was notified on 15 December 2023 that she was to be charged with assault by beating and she was remanded on unconditional bail. Following a trial before magistrates in summer 2024 the claimant was found not guilty of the charge.[93]Initially Mrs Wainwright was told not to show the claimant the CCTV evidence or take any further steps to investigate the claimant about the incident for the purposes of the respondent’s internal disciplinary policies.[94]The Safeguarding Vulnerable Groups Act 2006 provides that Local Authorities have an obligation to report all cases to the Disclosure and Barring Service (DBS) where they cease to use a person’s services because he or she is considered unsuitable to work with children, as a result of misconduct that raises an issue concerning the safety and welfare of children. The claimant was advised that a report would be made to the DBS in her dismissal letter. The respondent submitted such a report. The DBS’ initial findings included that the claimant assaulted Child A by grabbing him by the neck, pushing him into a chair, and attempting to kick him. The claimant made representations explaining her side of the incident and the reasons for her contact with Child A, that she had applied the strategies and training that she had had for dealing with Child A, she worked alongside other staff to calm Child A and was willing to undertake further training at her own expense as required. and did not escalate the situation and had not been trained. The DBS eventually decided not to place her on the Children’s barred list. She also sought to have her police records deleted after her acquittal, but this too was refused in February 2025. Investigation:[95]On 6 September 2023, the officer from the Metropolitan Police who had been conducting the police investigation into the matter advised Mrs Wainwright that it was now permissible for the school to continue its internal investigations and show the claimant the CCTV footage as part of the disciplinary proceedings. The respondent therefore progressed its internal investigations, disciplinary and appeal processes while the claimant was awaiting the criminal trial. The original planned date for a meeting in September had to be adjourned to allow the claimant to be accompanied.[96]Mrs Wainwright carried out a first interview with the claimant on 4 October 2023, immediately after the police had consented to the claimant being shown the CCTV footage. The meeting lasted 45 minutes. The claimant was accompanied by her Union Representative. We accept the minutes of the meeting as accurate.[97]The claimant was not shown the CCTV footage at that meeting (we infer from the response to a question about it that it was still with the police) but she had seen it during her interviews with the police. The claimant’s account was based only on her recollection from 4 months previously and her recollection of seeing the CCCTV at the police station.[98]She described Child A running downstairs towards the office, saying continuously “Don’t fucking touch me,” and that she was trying to calm him. She mentioned that he was saying that he wanted to leave and that it was not safe so she tried to stop him. She said she asked Child A for his bag and that she grabbed it as he was moving angrily. She described events outside referring to the main gate switch. She said Child A tried to push Mr Lockwood and grabbed his clothes, although she could not really recall Ms Badesha coming out. After Child A re-enters and sits down then gets back up she described resting her legs against the chair for balance and to avoid putting her weight on him but Child A was pulling at her and hitting her in the breast area. In answer to questions the claimant acknowledged that she was holding Child A in the doorway to the office. Mrs Wainright described Mrs Badesha as ‘trying to put some space between the claimant and Child A’ and said, “Child A must have been feeling blocked as he was between 3 adults”. The claimant said she was trying to hold his hand. When Child A returns to the reception the claimant gave her account of putting weight through her legs on the front of the chair and nearly overbalancing, and that Child A had grabbed her neck with both hands and pulled and punched at her breast area. She could not clearly recall Mrs Badesha’s coming between them. Mrs Wainwright asked if the claimant should have given Child A more space or left the area once Mrs Badesha had calmed him down. The claimant said that she thought that Child A had not calmed down and was wanting to leave. She recalled his PLP. Mrs Wainwright asked if the claimant should have called for help when she was being attacked by Child A. She said that she thought help should have come because Louise was witnessing it, but that her own response was appropriate because she had his safety in mind and he was trying to leave the school. The Union rep prompted Mrs Wainwright to ask what the claimant’s response would be if it happened again and she replied that teamwork was needed to calm children down, and management would need to help if there was no teamwork.[99]A second investigation meeting with the claimant was held on 18 October 2023. Again, the claimant was accompanied by her union rep. On this occasion the claimant was able to view the CCTV footage for an hour before the start of the meeting. Mrs Wainwright explained that the purpose of the meeting was for her to ask some follow up questions arising from the CCTV before making her recommendation. This part of the meeting lasted about one hour. 99.1. In advance of the meeting Mrs Wainwright reviewed the respondent’s Competency Framework, Behaviour documents and the SEND Policy. 99.2. Mrs Wainwright challenged the claimant that she was grabbing Child A’s bag and not his hand and that Mrs Badesha was trying to stop her hand. The claimant said she was grabbing his bag but that she had Child A’s safety in mind and didn’t want him to leave the building. Mrs Wainwright then said that if the claimant had let go the respondent could have dealt with the situation and that the claimant’s conduct in putting everyone so close together did not fit in with any of the respondent’s policies. Her actions put everyone under stress and “what was [the claimant] thinking at the time? [Mrs Badesha] was trying to help and she was not holding or pulling.” 99.3. There was an exchange about what happened outside. Mrs Wainwright was describing Mr Lockwood locking the gate and Mrs Badesha coming out to help. The claimant said Child A grabbed Mr Lockwood and she was asking Child A to let Mr Lockwood go before Mrs Badesha intervened. 99.4. In regard to her actions in the reception area, Mrs Wainright said that the door was locked when she pushed Child A into the chair. The claimant said that she was worried for Child A’s safety, that he crossed roads when he was angry and that she did not know that the door was locked. 99.5. Mrs Wainwright said Mrs Badesha intervened and pushed the claimant away. The claimant said that she did not touch Child A after that. She said that she was the person working with Child A that day and that it was not safe for him to leave until his parents arrived. 99.6. Mrs Wainwright said it was expected that adults would step away if in an aggressive situation. The claimant said that she was not aggressive and that the (previous) lesson had made Child A angry. 99.7. Mrs Wainwright explained about the importance of leaving escalated situations, and why the claimant had pushed Child A into the chair. The claimant repeated that she was concerned for C’s safety and the risk of him leaving the school.[100]The claimant alleged during her evidence that at the end of the investigation meeting after recording had stopped Mrs Wainwright had said to her that she would “make sure that [the claimant] would never work with children again” and that was witnessed by her union rep. We are not satisfied that the claimant has proven that this was said. On the one hand the claimant was adamant in her evidence on this point, and as we have observed above, Mrs Wainwright used colourable language in her report to LADO and in her witness statement for the trial, and her comments in the course of questioning suggest she had formed a critical impression of the claimant’s actions. However, there was no mention of this comment made at any stage of the disciplinary or appeal process, or before the hearing. Whilst we recognise that the claimant was in a position where she was fighting for her job and would not want to rock the boat if there was a chance of returning, we cannot escape the fact that there is no record of such a comment or support from the union representative and Mrs Wainwright was not cross-examined on this point. On balance we find that even if some comment was made it was not made in the way, or in the terms the claimant alleged.[101]Following the second meeting with the claimant, Mrs Wainwright reviewed the witness statements taken on 22 June from the three witnesses/participants in the incident. She conducted further interviews with Mr Lockwood and Mrs Badesha on 20 October 2023. She did not further interview Mrs Etherington.[102]Mrs Wainwright produced her Investigation Report on 10 November 2023.[103]The Allegations which Mrs Wainwright was considering were: Allegation 1: using inappropriate force to restrain Year 6 pupil during an incident on Thursday 22nd June 2023 Allegation 2: acted unprofessionally during the above incident and not in line with the Koinonia Federation[104]She set out her findings and appended all of the materials she had relied upon. She found in support of the allegations that Child A was “angry and aggressive,” but that “”It is also seen that force used to restrain Year 6 pupil was excessive and did not achieve the desired results. Particularly [the claimant] grabbing Student A by his bag straps, t-shirt, and neck. Overall, there are 3 incidents where [the claimant] uses excess force and does not act in the best interest and welfare of Student A. At no point does the CCTV show that [the claimant] tries to use other strategies to defuse the situation.” She relies in support of this finding upon comments by Mrs Badesha that the claimant was using excessive force which was not necessary and was making Child A react worse, and that the claimant was not listening to Mrs Badesha’s instruction get off Child A. Mr Lockwood also mentions the claimant pushing Child A into a chair.[105]The report records that the evidence is inconclusive whether Child A grabbed the claimant’s neck and held her or whether the claimant grabbed Child A.[106]She recorded that as mitigation the claimant normally manages to calm Child A down, that Child A was very angry coming down the stairs and the claimant had his safety in mind and she was trying to stop him leaving the school.[107]She concluded by reference to the evidence that the claimant had used excessive force in her dealings with Child A, that she failed to meet two components of the Koinonia Competency Framework – namely integrity and Wisdom. In particular 107.1. she had not adhered to the SEND Policy page 7 or Behaviour Documents page 10 (staff…do their best to ensure …consequences are appropriate to the behaviour and individual needs [sic]” and 107.2. she had not followed his PLP strategies.[108]In relation to Wisdom she stated “The Koinonia Competency Framework also states that staff should act calmly and rationally in all situations (Wisdom). Mrs Badesha mentioned that [the claimant] was quite aggressive towards Student A and Mr Simon Lockwood also stated that [the claimant] was getting agitated with Student A. It was seen on CCTV that [the claimant] stood in front of Student A arms crossed which can be interpreted negatively.”[109]She found that the claimant had also behaved in a way that might have harmed a child (Code of Conduct section 5) and that her behaviour had caused escalation at times.[110]She recommended referral for a disciplinary hearing and stated that “These allegations are potentially considered gross misconduct and serious negligence of duty which could result in summary dismissal”. Disciplinary Procedure and dismissal decision[111]The claimant was invited by letter to a disciplinary hearing which was held on 23 November 2023. She had been advised in advance of the charges against her, of her right to be accompanied (she was again assisted by her union Representative Ms Spicer) and of her right to make representations and to state her case.[112]The hearing was chaired by Mrs Rowe, a governor of the Foundation, and the respondent’s HR manager attended as a note taker, an HR advisor to the Royal Borough of Greenwich also attended, as did Mrs Wainwright to present her report. We accept the minutes as accurate.[113]The claimant was reminded of the charges against her and warned that separately or taken together they were potentially considered as gross misconduct of serious neglect of duty which could result in summary dismissal.[114]The Hearing commenced at 9am, and the first hour was taken up with the claimant viewing the CCTV footage with her representative in private. The claimant at this point complained about the absence of CCTV footage from outside which the claimant said showed Mr Lockwood on the low wall. Mrs Rowe questioned the relevance of this. The claimant also alleged, and Mrs Rowe denied, that some of the footage had been deleted.[115]For the avoidance of doubt, we are satisfied that no video evidence was deleted.[116]Mrs Wainwright highlighted in particular the three instances which she found had displayed excessive force(1) in the school office doorway when the claimant did not follow the PLP for Child A and used force unnecessarily(2) when Child A returned from outside, the claimant remained too close to him, in his personal space and when he stood up the claimant forced him down by the neck and ‘it looks like she was about to kick him’ and(3) when Child A stands up again and starts to kick the glass doors, the claimant should have backed away.[117]Ms Spicer on the claimant’s behalf asked why Mrs Badesha had not asked the claimant to leave the area. The minutes record that Mrs Wainwright said that Mrs Badesha thought that using her body to move the claimant away would be a sufficient cue for the claimant to step away. In her appeal email of 1 December (referred to below) the claimant said that Mrs Wainwright’s response was in fact: “yes, she should have asked Martha to leave”. This was not explored in cross-examination. In our view it is likely that Mrs Wainwright’s response was a combination of acknowledgment that Mrs Badesha should have asked the claimant to leave and an excuse for why she did not do so.[118]The claimant made representations. She pointed out her long record of exemplary service to the school and to Child A, she gave her account of the interactions with Child A and emphasised that she was motivated by concern to keep Child A safe and was unaware while interacting with Child A that the door behind her was locked shut. She explained that Child A was also pulling at her, and she was not pushing him down into the chair. She pointed out that Mrs Badesha was also at points crossing her arms and that in her culture crossed arms signalled empathy while someone was taking a moment to think.[119]Mrs Rowe asked if the claimant knew about Child A’s PLP and how she dealt with him when he got angry. The claimant said that she used her own methods to calm down Child A, described how he responded normally to that and that she had not had any training. Mrs Rowe asked why the claimant did not use that strategy in this case and the claimant replied that Child A was ‘extremely angry’ and that she had asked him to give her his hand but he was too upset.[120]Mrs Rowe observed that she did not understand why the claimant had not used her normal strategy. The claimant re-emphasised that Child A was swearing, saying he wanted to go home and that he would leave if he had his bag and phone so she was trying to get his bag. She pointed out that she had not been trained how to deal with Child A ‘when he kicks off’ and that she had never had cause to use her hands on Child A in that way before. She said she had never seen Child A that angry before, although in answer to a question from Mrs Wainwright the claimant said Child A had been suspended before. She later confirmed that she had had in house training but not specific positive handling training.[121]Mrs Rowe went through the CCTV with the claimant commenting on what appeared to Mrs Rowe to be happening and asking the claimant how she, and how she thought Child A was feeling at different points.[122]Mrs Rowe asked the claimant what she would do differently now and the claimant said that she would leave management to deal with Child A, but that she was worried that Child A would get out and escape through the gates. She said she would step back from the child, and would ask for more training.[123]In an important exchange, Mrs Rowe asked the claimant if she accepted that the force she used was excessive. She confirmed “yes from what [I] can see.’[124]The participants summarised their positions at the end. Mrs Rowe took 20 minutes to consider the position before indicating that she needed to take more time to process her decision. She indicated a response within 5 days.[125]Mrs Rowe told us, and we accept that she looked at all of the documents which were scheduled to Mrs Wainwright’s investigation report. She said she made some other inquiries after the hearing. Whilst she was undoubtedly an honest witness, we found her evidence about her deliberations somewhat hesitant at times, and her recollection of detail appeared to us to be relatively lacking. There was no documentary support for these steps, and we were not convinced that she was recalling correctly what she in fact did when considering the position, rather than trying to present a favourable impression to the tribunal of what she felt that she should have done. She said she made inquiries of HR to establish if there were any health reasons, or earlier incidents affecting the claimant which might have explained her conduct on that day. She said none were reported to her, and when questioned she admitted that she was not aware that the claimant had previously suffered a hand injury at the school after a pupil threw an item which had hit her and that she had been paid compensation for that. She also told us that she did look into the investigation which preceded the disciplinary for Teacher X, but when asked about the comparison between treatments she said that Teacher X was found to have used poor judgment but not physically restrained Child A. That was incorrect. Teacher X’s witness statement in that investigation stated that she had “tried to move Child A away physically (and showed a pushing motion with her hands out in front).” She later said that she could not recall reading Teacher X’s disciplinary outcome letter. She was also less sure footed when questioned about which provisions of the Code of Conduct she had relied upon, and less clear about whether she in fact took into account the details of DfE guidance on the use of reasonable force We are however satisfied that she believed that the claimant had used excessive force on one or two occasions and that she had acted in a way that breached standards of conduct expected by the School’s code of conduct.[126]Her oral evidence concerning her deliberations and rationale was more compelling: 126.1. She made clear that she was struck with the contrast between Ms Badesha’s actions and calming strategies and actions and those of the claimant, and that the claimant had missed lots of opportunities to de-escalate the situation. The claimant knew about Child A’s PLP which described the sort of behaviours and strategies that he would react well to, and those that would likely provoke him. She said that she saw that the claimant’s conduct escalated the situation and led to a breakdown of trust with the child. 126.2. She told us, and we accept, that she understood her obligations, and recognised that the allegations were serious and dismissal would severely affect the claimant. We find that she did take into account the factors which the claimant had relied upon in mitigation, including her long service with the school and her experience with managing Child A. She said that she had also taken into account the fact that the claimant had not received positive handling training but had received training on managing child behaviour and that the claimant could have called other staff to help. In answer to a question from the Tribunal she said that the recommendation for all staff to have de-escalation training had been implemented, but at the time of her decision she would not have been convinced that the outcome would have been different if the claimant had had additional training. 126.3. As regards the criticism that Ms Badesha had left the claimant alone in charge of Child A who was being aggressive towards her, Mrs Rowe accepted that that had happened and that there were times when Child A had pulled at the claimant. But she did not accept that the claimant had overbalanced or that the claimant’s contact with the child’s neck was unintentional. She also accepted that there were moments when the claimant had handled the situation well. But she said she considered that the claimant failed to manage her emotions at particular times and that she considered she had pushed Child A down into the chair against his will. She considered the force used on occasion was excessive.[127]As regards the decision to dismiss rather than to apply a lesser sanction, we accept that Mrs Rowe did weigh alternative options. Her evidence was that she considered a final written warning, either alone or combined with a transfer to another campus. She rejected those alternatives because, she told us, she was not confident that, even with training, the situation would not happen again, and that as a result of the incident she was concerned there had been a breakdown in trust and confidence in the claimant amongst other staff and pupils. She was tested on the impact on her thinking of the prosecution and the future trial of the claimant, and she, convincingly in our judgment, admitted that the reputation of the school, given there was an ongoing criminal investigation, was an important consideration for her. She summarised her position as having made a difficult decision, in good faith and seeking to be impartial after a long period of reflection based on all the circumstances and in light of the claimant’s behaviour and her assessment of the safeguarding risk. She said she could not take the risk of a repetition of the claimant’s behaving as she had.[128]She issued the disciplinary outcome letter on 29 November 2023. That letter recited the two allegations with which the claimant had been charged (use of inappropriate force to restrain and acting unprofessionally and not in line with the Code of Conduct) and explained the steps Mrs Rowe had taken. The letter states: “After careful consideration of Student A's behaviour during the initial encounter with you and the subsequent incident, it is evident, beyond doubt, that excessive force was initiated by you and further exacerbated, ultimately contributing to the escalation of [Child] A’s aggressive behaviour. Based on this thorough assessment, I find the allegation to be proven. I have thoroughly examined the concerns raised in allegation two, considering our Koinonia Federation code of conduct, the values integral to our Federation vision, length of service and the tenure of five years with Student A. This assessment also involved acknowledging your explanation in managing Student A’s previous behaviour and commitment to ensuring their safety. Whilst recognising the absence of formal “positive handling” training, I took into account your participation in various sessions and training with key SEN specialists, coupled with checking your understanding and familiarity with policies, Student A’s personalised learning plan, and your own efforts towards self-care and self-regulation. However, despite the challenges and the potential for SLT to request you leave the scene, it is evident that at no point did you effectively manage your emotions, demonstrate self-awareness, or take ownership by removing yourself from the situation. The contrasting responses of other staff members, as depicted in both statements and corroborated by CCTV footage, highlight your divergence in adherence to our Federation code of conduct. Your professionalism, integrity, and self-awareness are called into question, particularly because this escalated the incident including the use of excessive restraint. There were missed opportunities on your part for reflection and de-escalation, contributing to a breakdown in trust with Student A and believe potentially adverse affecting relationships with colleagues and stakeholders inside and outside the Koinonia Federation. Regrettably, I must uphold allegation two, as the evidence during the hearing suggests a departure from professional conduct and a serious breach of our Koinonia Federation code of conduct. This behaviour potentially impacts the reputation with your colleagues and that of the Koinonia Federation. I was satisfied in relation to the allegations that they are serious enough to amount to gross misconduct according to the Koinonia Federation Disciplinary Policy. This decision is made in the context of a school setting. I am clear that such behaviour was not compatible with working at a school where the safeguarding and welfare of our students is paramount. I now write to you the decision that you are dismissed from the School with immediate effect. The decision to dismiss you was not taken lightly and one where I considered all the information and considered whether there were any suitable alternative options in your case. However, due to the seriousness of the conduct, I concluded that alternatives to dismissal were not appropriate.”[129]The letter advised the claimant that she was dismissed with immediate effect and without notice. It advised her of her right to appeal in accordance with the respondent’s disciplinary policy.[130]The claimant lodged her appeal on 1 December 2023. She appealed on the basis that the decision to dismiss was too harsh and that she should have received a final written warning with training. She referred to her service history and concerns on the day about Child A’s safety. She said “On reflection I understand how this looked like I was not behaving in a responsible manner and for this I apologise….from this incident I have learned that if a member of SLT (senior leadership team) is around I will walk away and let them take control of the situation”. She pointed out that she had had training but that she had never been recommended for specific training on how to handle behaviour-challenged children. She pointed out that the school’s Code of Conduct which is meant to protect and safeguard the staff was thoroughly neglected in her case. She also referenced the fact that Mrs Wainwright had acknowledged that Mrs Badesha should have asked her to leave. Conduct of the Appeal[131]The claimant was notified of her right to appeal and to be accompanied and to present her case and any witnesses. In the event she was accompanied by Ms Spicer again as her Union Representative and by a union observer. Mr Gregory chaired the appeal panel which consisted of three governors of the school. Mrs Rowe and an HR representative from LN Greenwich attended, and notes were taken by the respondent’s Federation’s HR manager. The claimant confirmed her understanding of the process and that it was not a rehearing. She did not seek to adduce any further evidence. The hearing lasted 45 minutes.[132]The claimant did not seek to criticise the fairness of the appeal procedure adopted.[133]During the appeal, the claimant confirmed that she was not disputing the finding of gross misconduct but wished to argue that the sanction was too harsh. She should have received a final written warning and training.[134]The claimant challenged Mrs Rowe’s conclusion that the school had given the claimant training: she had only had fire-drill and safeguarding training. Mrs Rowe re-iterated that she had acknowledged the lack of positive handling training and had checked the claimant’s understanding about how to handle these sorts of situation. Mrs Rowe also restated her approach and rationale for applying the sanction of dismissal.[135]The claimant’s union representative pointed out that under the school’s guidance all staff are entitled to use reasonable force and that it can be used to control pupils or restrain them to prevent them from harm, and that the claimant was trying to keep child A safe. The panel noted that Mrs Rowe had considered the claimant’s use of force as excessive but that the claimant believed it was reasonable.[136]The appeal outcome letter was sent on 6 February 2024. It recorded that the panel had concluded that the process of decision making followed at the first hearing was sound, and that Mrs Rowe had fully considered all aspects of the case and that the panel agreed with the conclusion that the incident was correctly regarded as serious and ought to be treated as gross misconduct. In considering whether a lesser sanction should have been applied, it concluded that the decision to dismiss was the appropriate course of action having reviewed the explanations given by the claimant, the seriousness of the incident and the difficulty in returning the claimant to the staff team that had witnessed it and that she had [not] satisfied Mrs Rowe as to her knowledge of her responsibilities. Discrimination[137]An employer must not discriminate against an employee in the terms of their employment, by dismissing the employee or by subjecting the employee to any other detriment EQA s 39(1). This prohibition gives rise to the right to a claim under Section 13 of the Equality Act. Burden of Proof[138]Section 136 applies to any proceedings relating to a contravention of the Act and provides: “(2) If there are facts from which the court could decide in the absence of any other explanation, that a person A contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection 2 does not apply if A shows that A did not contravene the provision”.[139]There is therefore a two-stage analytical process. Stage 1 concerns the primary facts and Stage 2 the employers explanation. Guidelines on the application of the burden of proof provisions were provided in the Court of Appeal in Igen v Wong [2005] EWCA 142 (a pre- Equality Act 2010 case) and subsequently restated and explained in Hewage v Grampian Health Board [2012] ICR 1054 (SC) Efobi v Royal Mail Group Ltd [2021] UKSC 33 and Field v Pye & Co [2022] EAT.[140]In summary the first stage is where the burden of proof first lies with the claimant who must prove on a balance of probabilities facts from which a Tribunal could conclude, in the absence of any other (non-discriminatory) explanation that the Respondent had discriminated against him. If the Claimant meets the burden and establishes a prima facie case (which will require the Tribunal to hear evidence from the Claimant and the Respondent, to see what proper inferences may be drawn), then the burden shifts and the Respondent must prove that it did not commit the act disproving the allegations. This will require consideration of the subjective reasons that caused the employer to act as he did. The Respondent will have to show a non-discriminatory reason for the difference in treatment.[141]The burden of proof is on the claimant at stage 1 to prove facts from which a tribunal could conclude, in the absence of an adequate explanation, that the respondent had committed an act of discrimination. The employer's explanation is disregarded. The outcome at this stage will usually depend on what inferences it is proper to draw from the primary facts found, and the tribunal assumes that there is no adequate explanation for the facts. Inferences may be informed by evasive answers or failures to adduce evidence from relevant witnesses. The tribunal may also draw inferences from a failure to comply with applicable codes of practice. It is not sufficient at this stage for the employee merely to prove a difference in protected characteristic and a difference in treatment. Something more is required: Madrassy v Nomura International [2007] ICR 867 (CA). It cannot be presumed or inferred only from the fact that an employer has acted unreasonably towards one employee that it would have acted reasonably if dealing with another: Zafar v Glasgow City Council [1998] IRLR 36. At this stage ultimately the tribunal must stand back from the detail and look at the cumulative picture.[142]If the claimant proves such facts, the burden shifts to the employer to prove on the balance of probabilities that the dismissal or detrimental or less favourable treatment was in no sense whatsoever on the grounds of the protected characteristic. Since the employer is normally in possession of the facts necessary to make out an explanation, a tribunal will normally require cogent evidence to discharge the burden of proof and will examine failures to comply with applicable codes of practice carefully. This stage will require consideration of the subjective reasons that caused the employer to act as he did. The Respondent will have to show a non-discriminatory reason for any difference in treatment. But the employer only has to prove that the reason for the treatment was not the forbidden reason. The employer does not need to prove that they acted reasonably or fairly, but in such cases the tribunal will be astute to test explanations that the employer was only acting unfairly and not for the discriminatory reason: Komeng v Sandwell Metropolitan Borough Council UKEAT/0592/10/SM.[143]Tribunals must be careful, and the burden of proof provisions should not be applied in an overly mechanistic manner: see Khan v The Home Office [2008] EWCA Civ 578 (per Maurice Kay LJ at paragraph 12).[144]The approach laid down by section136 EqA requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but where the Tribunal is able to make positive findings on the evidence one way or another, the two-stage test under section136 does not come into the equation: see Hewage v Grampian Health Board [2012] ICR 1054 (per Lord Hope at paragraph 32) approving Martin v Devonshires Solicitors [2011] ICR 352 (per Underhill J at paragraph 39). Direct discrimination[145]Section 13 of the EQA 2010 provides : A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably that A treats or would treat others.[146]Race is a protected characteristic: Section 9 EQA 2010[147]Direct discrimination occurs where the employer treats or would treat the employee less favourably than another employee ‘because of’ a protected characteristic.[148]Section 13 requires the claimant to identify a comparator who was or would have been treated differently. The circumstances of the comparator, which may be actual or hypothetical, must be not materially different to those of the claimant (EQA s 23: Hewage v Grampian Health Board [2012] UKSC 37). The claimant relies upon both actual and hypothetical comparators.[149]The crucial question in every direct discrimination case is what is the reason why the claimant was treated as they were. Was it because of their protected characteristic or was it wholly for other reasons. The protected characteristic need not be the only reason for the less favourable treatment it may not even be the main reason provided the decision in question was significantly that is more than trivially but influenced by the protected characteristic the treatment will be because of that characteristic.[150]In most cases the tribunal will have to look to the mental processes of the alleged discriminator to determine their motivation: Nagarajan v London Regional Transport [1999] IRLR 572. Motivation is not the same as motive and a well-meaning employer may still directly discriminate. Discrimination may also be subconscious. An employer may genuinely believe that the reason why he acted as he did had nothing to do with the applicant disability but a tribunal may decide that the proper inference to be drawn from the evidence is that whether the employer realised at the time or not, that disability was the reason why it acted as it did.[151]When considering a claim under section 13 of the EQA (Direct discrimination: unfavourable treatment because of’ the protected characteristic), the individual decision-maker must be found to have actual or constructive knowledge of the protected characteristic. Harassment[152]S 26 of the Equality Act provides relevantly as follows: (1) a person (A) harasses another (B) : if (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of (i) violating B’s dignity, or (ii) creating an intimidating hostile degrading humiliating or offensive environment for B. (4) In deciding whether the conduct had the effect referred to in sub-section (1) (b) each of the following must be taken into account (a) the perception of B; (b) the other circumstances of the case; (c ) whether it is reasonable for that conduct to have that effect.[153]The language of the section 26 (1) b) is strong and looks for effects which are serious and marked. It is wrong to cheapen them. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.: Omooba v Michael Garret Associates [2024] IRLR 440 per Eady J at [103] citing Elias LJ in Grant v HM Land Registry [2011] EWCA Civ 769 (paragraph 47) and Langstaff Pin Betsi Cadwaladr University v Hughes UKEAT/0179/13 (paragraph 12) .[154]In determining whether the conduct is “related to” the protected characteristic in issue, a phrase which is broader than ‘because of’ in section 13, the tribunal must identify some feature of the factual matrix which has led it to the conclusion that the conduct is related to that protected characteristic: Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and anor [2020] IRLR 495. The focus of the Tribunal must be on the specific conduct complained of when assessing whether it is related to the protected characteristic: Worcestershire Health and Care NHS Trust v Allen [2024] EAT 40 at paragraph 9. Direct Race Discrimination: Analysis and conclusions[155]Mr Ijezie for the claimant submitted that the focus should not be on the mind of the dismissal/appeal decision makers, but on the mind and conduct of Mrs Wainwright, who carried out a flawed process of investigation. He argued that Mrs Wainwright had used loaded language “exceptionally aggressive,” “manhandling” “extreme” contact. He submitted that Mrs Wainwright clearly pushed for the matter to be reported to the LADO and used this loaded language in reports to LADO, to the police in the meeting which they attended and in her later DBS report. He referred us to the instances of conduct by Mrs Wainwright set out in the list of issues at paragraph 3.2.1 to 3.2.4.1. He submitted that whilst the decision makers, in particular Mrs Rowe, were not acting as they did because of race – and made this clear to Mrs Rowe in her cross-examination and did not address the matter at all with Dr Gregory - the summary dismissal decision was nevertheless the result of the flawed investigatory process carried out by Mrs Wainwright.[156]In support of a submission that the claimant had established the necessary facts from which the necessary inference required by stage 1 of the Burden of Proof test in section 136 of the Equality Act he referred us to the conduct of Mrs Wainwright above and to the comparative treatments of the claimant compared to that meted out to Mr McMahon and Teacher X. He submitted that no-one on the respondent’s side had provided a clear explanation of why they acted as they did so that we should find that the allegation of discrimination on the ground of race is made out.[157]Mr Lee for the respondent submitted in summary: 157.1. The race discrimination and harassment claims were submitted for the first time in these proceedings. Discrimination was not raised by the claimant during the investigation, disciplinary or appeal hearings, notwithstanding that she was accompanied throughout by a Union Rep. 157.2. The clear and obvious reason why the respondent’s officers behaved as they did was because of what they saw on the CCTV footage. The steps and processes which flowed from that, which he addressed us on individually in his written submissions were nothing to do with the claimant’s race. 157.3. Reliance on comparisons between the treatment of the claimant and the treatment of Mr McMahon and Teacher X does not assist the claimant. First because on the evidence the situations are not materially the same so as to permit a sufficient comparison. Second, none of Ms Wainwright, Mrs Rowe or Dr Gregory were involved in the decisions relating to those other cases so it is not possible to infer from the treatment by others of Mr McMahon and Teacher X that the relevant decision makers took their impugned actions and decisions because the claimant was black (and not white like Mr McMahon or British Asian like Teacher X). 157.4. He was critical of the way the race allegation developed during the hearing. He described a proposition put forward by Mr Ijezie (and not previously pleaded) that two Indian/Asian employees (Mrs Badesha and Teacher X) had got together to target the claimant because she was of a different race as fanciful and part of a pattern of conspiracy theories which encompassed the proposition that Mrs Wainwright was controlling the thinking of the LADO and the police. 157.5. He asked rhetorically how, if Mrs Rowe and Dr Gregory were not themselves said to be acting because of race, the Tribunal could infer that Mrs Wainwright was doing so when the material before each of them was the same.[158]We have found above that the respondent, acting by Mrs Wainwright did the following: 158.1. report the claimant to LADO; 158.2. report the claimant to the police; 158.3. facilitate the provision of witness statements for the criminal trial by Mrs Badesha and Mr Lockwood; and 158.4. provide a witness statement herself and provided CCTV footage to the police.[159]These are actions in relation which we are able to make a positive finding as to the reason why the respondent/Mrs Wainright acted as they did, and in all the circumstances it is not necessary to approach these allegations on the basis of the two stage test.[160]We find that the reason why Mrs Wainwright took the above steps was that she genuinely believed that the claimant had used excessive and inappropriate force towards Child A. Further, each of the above steps were steps which she was in fact, or at least she reasonably understood to be, steps which were required of her in the discharge of her own statutory, regulatory and practice obligations and those of the respondent in connection with the reporting of safeguarding concerns to the local authority and in accordance with formal directions or requests from the LADO and the police in support of consequent actions. 160.1. We have referenced above the statutory, regulatory and guidance framework within which the respondent operated. This included an obligation to report an allegation against staff or volunteers working with children to the designated safeguarding lead (Ms Sheath on the day in question) and then within 24 hours to the LADO. Failure to do so was a disciplinary matter; 160.2. The decision whether the referral passed the threshold for the LADO to involve themselves was a matter for the LADO not Mrs Wainwright ; 160.3. The LADO had an obligation to make recommendations and give advice to the respondent. In this case that advice included that the matter should be referred to the Police; 160.4. The CCTV was viewed by both the police and the LADO together with Mrs Wainwright; 160.5. The decision to arrest the claimant was a decision made by the Police; 160.6. The CPS requested Mrs Wainwright to identify witnesses, to facilitate the provision by them of evidence and to provide further evidence. Mrs Wainwright did these things. We find she did them because she had been requested to do so by a competent authority and she understood that she was obliged or expected to cooperate; 160.7. A further decision that the evidence and other considerations of the public interest justified a criminal charge of assault by beating and a prosecution were taken by the CPS not the respondent.[161]We are satisfied that these are the reasons why Mrs Wainwright acted in the respects above. Her conduct was not in any way because of race. Mrs Wainwright/the respondent would have taken the same steps in a comparable situation with an employee of any race.[162]In reaching our conclusion we have taken into account that Mrs Wainwright in her initial report to LADO, and later in her evidence for the criminal trial, used somewhat loaded language. We consider that she did so because she genuinely believed what she was saying was reflective of what she saw on the CCTV. Although we have found that in some respects (in relation to the kick for example) her views are, objectively, not correct, where there was uncertainty her views were expressed in caveated terms (“It appears they are both kicking each other and she is possibly hitting/punching him”). In cross-examination Mr Ijezie suggested that Mrs Wainwright’s observation in her investigation report that the claimant ‘stood in front of [Child A] with arms crossed which could be misinterpreted” was also made because of race, and he submitted that different cultures might have different body language. Whilst we acknowledge the submission that different body language might differ, or be differently understood across cultures, there is nothing in anything said by Mrs Wainwright from which to infer any motive on the part of Mrs Wainwright that is connected with race in the circumstances. This aspect was not in any event referred to in the disciplinary or appeal hearings or outcomes.[163]As regards the flaws in Mrs Wainwright’s investigation alleged by Mr Ijezie, we consider these in more detail below. In summary we do not accept that the investigation was materially flawed for any of the reasons he suggested. In any event, we find no basis upon which to infer that she conducted the investigation in a flawed way (if that had been the case) because of race. She acted as she did because of the reasons we have found above. If there were flaws, they arose because of inadvertence or error and not in any way because of race. The same mistakes would have been if the claimant had been of a different race.[164]As regards the decision to dismiss, this requires us to focus on the minds of Mrs Rowe in connection with the dismissal and Dr Gregory in connection with his decision to reject the claimant’s appeal.[165]As Mr Lee correctly submitted, Mr Ijezie did not advance a case that either Mrs Rowe or Dr Gregory acted because of a deliberate or conscious motivation against the claimant because of her race. As we understand how the claimant case was being advanced, the flawed investigation carried out by Mrs Wainwright, which was, he contended flawed because of race, in effect poisoned the well so that Mrs Wainwright’s discrimination infected their analysis and decision-making.[166]We have found above that Mrs Wainwright was not motivated, consciously or otherwise to act as she did because of the claimant’s race. The claimant’s argument on this possible basis fails on that ground. In the absence of a positive submission, or any evidence identified from which to infer that the conduct of Mrs Rowe or Dr Gregory was because of race, this head of claim must fail.[167]In any event we find that the reasons why they concluded as they did were the reasons given in the dismissal and appeal outcome letters, respectively. In each case the decision maker was not unduly or inappropriately influenced by Mrs Wainwright. They made their own minds up on the basis of the materials and evidence before them and any additional inquiries they made. The reason why they acted was in each case in no way connected with the claimant’s race. Mr Ijezie did not submit otherwise.[168]As regards the claimant’s submissions and the evidence concerning the fact of different treatment of the claimant compared to Mr McMahon and Teacher X. We are not satisfied that the facts give rise to an inference from which a tribunal could infer that the conduct complained of was because of race, and in any event, the circumstances are such that they were not materially the same as those of the claimant so that a sufficient comparison can be made. 168.1. In relation to Mr McMahon, although Mrs Wainwright was also a Federation co-headteacher at that time, neither she nor any of the staff involved with the investigation into the claimant’s conduct were involved with the treatment of Mr McMahon. The account of the event in question contained in the letter of 12 January 2018 indicates that Mr McMahon restrained the child and put him in a seated position. The circumstances reported were that the child was about to throw a chair towards a teacher across a table full of other children. There was no suggestion or any report of the use of inappropriate restraint techniques by Mr McMahon. The respondent’s Physical Intervention and Restraint Policy in force at that time envisaged the permissible use of minimal force if a child is a serious risk of hurting themselves or others. His differential treatment was not raised by the claimant on appeal. 168.2. In relation to Teacher X, as we explain below, we are satisfied that it was not a material flaw in the approach to the investigation into the claimant’s conduct to exclude the connected, but chronologically prior conduct of Teacher X in her classroom.[169]On the other hand we note that there was a, to us at least, surprising failure to consider or to report as a Safeguarding concern Teacher X’s conduct in pushing Child A and abdicating responsibility to other children to escort Child A out of her class after a violent outbreak. She was also subjected to what appears to be a relatively lenient sanction on Teacher X (first written warning) for apparently serious shortcomings compared to those imposed on the claimant. The extent of the disparity is striking, and understandably a matter which the claimant argues requires an explanation. However, we are satisfied that the circumstances of Teacher A were not materially the same as those of the claimant so that a comparison can be made. In particular: 169.1. Despite all of the children saying the same thing, there was no positive finding that Teacher X had told Child B to hit Child A back. Teacher X denied that that is what she had said and the investigation accepted the position was not proven against her. We do not know why her account was preferred but we are not in a position to go behind it; 169.2. Critically for us, there was no finding that Teacher X had used inappropriate force against a pupil. This is materially different from the position in relation to the claimant where that view was taken of her interactions with Child A; 169.3. There was no CCTV footage of the incident to support a more direct comparison.[170]In the absence of any other factual basis upon which to infer that any other member of staff in comparable circumstances would have been treated differently from the claimant, we are driven to conclude that the claimant was not treated less favourably than others who did not share her protected characteristic.[171]Accordingly, the claim of direct race discrimination is not well -founded and is dismissed. Harassment - Analysis and Conclusions[172]The complaint of harassment is premised on the same acts as we have considered above in connection with the claim under section 13 as amounting to unwanted conduct, and the conduct is said to have been related to race on the same basis as the claimant submitted that she was subjected to less favourable treatment.[173]In relation to the conduct by Mrs Wainright the conduct has been found, where it was by her and not by others, to have been because of reasons other than the claimant’s race – in other words the conduct was not related to the claimant’s race. In relation to the conduct by Mrs Rowe and Dr Gregory, the claimant has not alleged any discriminatory mind on their part.[174]It follows from this that the claim for harassment is not well-founded. We find also that the conduct relied upon did not have the purpose or, objectively the effect of creating the proscribed environment for the claimant, although we readily acknowledge that the consequences of the short incident with Child A has had a significant adverse impact on her life and well-being. Unfair Dismissal[175]An employee has a right not to be unfairly dismissed (Section 94 of the Employment Rights Act 1996 (ERA)).[176]The test for unfair dismissal is set out in section 98 of the ERA. Under section 98(1), it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2), e.g. capability, conduct, or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.[177]Under s98(4) ERA, the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.[178]The reason for dismissal is ‘a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee.’ (Abernethy v Mott Hay and Anderson [1974] ICR 323, CA.) 102.[179]The correct approach to fairness is based on British Home Stores v Burchell [1980] ICR 303 (although since that case was decided the burden on the employer to show fairness has been removed). Tribunals must consider whether it was reasonable in accordance with s98(4) ERA to dismiss for the reason relied upon. The question is whether dismissal was within the band of reasonable responses open to a reasonable employer. The relevant test is not whether ‘a’ reasonable employer (or the tribunal) ‘would’ have dismissed the claimant. It is whether the dismissal was within a range of reasonable responses taking into account that different employers might reasonably make different decisions; Foley v Post Office [2000] ICR 128 . It is not for a tribunal to substitute its own decision: Iceland Frozen Foods Ltd v Jones [1982] IRLR 439. In that context, the gravity of the conduct is a matter for the Respondent to assess: Tayeh v Barchester Healthcare Limited [2013] IRLR 387 at paragraph 69.[180]The range of reasonable responses test (or the application of the objective standards of the reasonable employer) applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. The objective standards of the reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed: (Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23, CA).[181]The tribunal should not require the employer to have conducted a perfect investigation of every conceivable line of defence available to an employee. What is required is that any defences advanced are considered to the extent necessary considering the circumstances as a whole: Shrestha v Genesis Housing Association [2015] EWCA Civ 94; [2015] IRLR 399 (paragraph 23).[182]When assessing whether the investigation undertaken was within the range of reasonable responses where charges sit on the spectrum of gravity is relevant (the more grave the allegation, the greater the care and thoroughness that would be expected of a reasonable investigation), and specific points made by the employee (for example that certain inquiries or points should be looked into) are relevant though not necessarily determinative of the question of fairness: Stuart v London City Airport UKEAT/0273/12/BA paras 16, 20 and 23.[183]In deciding whether a procedural defect renders the dismissal unfair the tribunal must weigh the significance of the defect and its impact on the fairness of the decision as a whole : Pillar v NHS 24 UKEAT/0005/16/JW at paragraph 29.[184]In assessing the reasonableness of the process Tribunals must and take account of the whole process including any appeal: Taylor v OCS Group Ltd [2006] IRLR 613, and will have regard to the provisions of the employer’s disciplinary and grievance processes.[185]Tribunals must also take into account the application and content of the ACAS Code on Disciplinary and Grievance Procedures. By virtue of section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992 if it appears to the tribunal to be relevant to any question arising in the proceedings.[186]Applying Burchell, and Sainsbury’s Supermarkets Ltd the questions for the Tribunal are:(a) Did the respondent genuinely believe that the claimant was guilty of misconduct? This overlaps with the task of identifying the principal reason for dismissal.(b) If so, was that belief based on reasonable grounds? This considers the information available at the time of the dismissal and appeal decisions and the Tribunal is evaluating whether the view that there was misconduct is a view within the band of reasonable responses.(c) Had the employer carried out such investigation into the matter as was reasonable? Again this is a question of the band of reasonable responses. Relevant are the nature of the allegations, the position of the claimant and the size and resources of the employer.(d) Did the employer follow a reasonably fair procedure? The tribunal will have regard to the ACAS Code and the employer’s own procedures.(e) If all those requirements are met, was it within the band of reasonable responses to dismiss the claimant rather than impose some other disciplinary sanction such as a warning? It is not for the tribunal to substitute its own view. Reference to the employer’s disciplinary policy will be relevant, particularly to any definition of gross misconduct in cases where it is dismissal for a first offence.[187]When considering the reasonableness of the decision to dismiss, arguments based on inconsistency with other cases require the tribunal to be satisfied that the circumstances really are comparable in a way that means it is unreasonable to impose a more severe punishment on the claimant: Hadjioannous v Coral Casinos Ltd [1981] IRLR 352 at paragraph 25 and Paul v East Surrey District Health Authority [1995] IRLR 305. Even if two cases are truly comparable, the dismissal of one employee and not the other will only be unfair if treating the cases differently falls outside the range of reasonable responses: Wilko Retail Ltd v Gaskell UKEAT/0191/18 at paragraph 31.[188]Length of service and prior good conduct are material considerations when assessing the reasonable ness of a decision to dismiss: M Genus and M Kelly v Fortem Solutions Ltd 1304270/2017 at paragraphs 70-75.[189]Dismissal for misconduct is more likely to be fair if the claimant has had a history of warnings and is on a final warning. Where it is a dismissal for gross misconduct the Tribunal has to be satisfied that the employer acted reasonably both in characterising it as gross misconduct, and then in deciding that dismissal was the appropriate punishment: Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854. This makes it important that the employer has considered any mitigating factors.[190]It is a common-sense proposition that it will not normally be fair to dismiss an employee for an act which they could not reasonably expect the employer to regard as serious misconduct (i.e. gross misconduct or conduct which renders the employee liable for dismissal) . For that reason, the ACAS Code of Practice on Disciplinary and Grievance Procedures recommends that employers should in their published disciplinary procedures give examples of acts which the employer regards as acts of gross misconduct. But it is well recognised that such examples cannot be comprehensive, and there will be cases where the question whether the employee should have appreciated that the employer would regard what they were doing as serious misconduct has to be determined as a matter of judgment having regard to the nature of the act and the surrounding circumstances: see OFSTED v Hewston [2025] EWCA Civ 250 at paragraph 16. Unfair Dismissal: Remedy[191]Under s122(2) ERA, the tribunal shall reduce the basic award where it considers that any conduct of the claimant before dismissal was such that it would be just and equitable to do so.[192]Under s123(6), where the tribunal finds the dismissal was to any extent caused or contributed to by any action of the claimant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable.[193]Where the dismissal is unfair on procedural grounds, the tribunal must also consider whether, by virtue of Polkey v AE Dayton Services [1987] IRLR 503 HL, there should be any reduction in compensation to reflect the chance that the claimant would still have been dismissed had fair procedures been followed.[194]The Code is also relevant to compensation. Under section 207A, if the claim concerns a matter to which the Code applies and there is unreasonable failure by either the employer or the employee to comply with the Code, there can be an increase or reduction in compensation (respectively) according to what is just and equitable of up to 25%. Unfair Dismissal Submissions[195]Mr Ijezie for the claimant focussed his submissions primarily on flaws in the investigation process. 195.1. He submitted that we should infer that the claimant was targeted for dismissal unfairly. He referred to the fact that the claimant was immediately suspended, notwithstanding that the applicable DfE guidance said that suspension should not be an automatic response when a staff member has been accused of using excessive force and recognised that force may be appropriate in some circumstances. He referred also to the fact that Mrs Badesha acknowledged in oral evidence that the children in Teacher X’s class had told her what had happened, this was serious, but she failed to mention this detail in her statement to Mrs Wainwright. He said that the Investigation report was inconclusive regarding whether the claimant was pushing Child A, being pushed or pulled by him but there was no additional investigation into this uncertainty. Instead Mrs Wainwright immediately referred to LADO. He criticised the use of loaded language, such as manhandling, when it was clear that the claimant had lost her balance. The initial investigation was also flawed by referring to the claimant kicking Child A when she clearly did not. 195.2. He emphasised that a thorough, reasonable, fair, and proper investigation was particularly important because its outcome could foreseeably have catastrophic consequences for the claimant and did so. 195.3. He submitted that Mrs Wainwright’s decision to exclude the prior conduct of Teacher X was unreasonable because, as he put it “there is no smoke without fire and there was a fire.” The importance of the prior conduct was that it gives a complete picture and might provide a mitigating factor. In particular the statements of the children present indicated that Teacher X had told Child B to hit Child A which Child B did with force. That could provide an answer to why the claimant acted as she did because her previous training and strategies would not have worked in that situation. This omission rendered the investigation unfair and vitiated the decision to dismiss. 195.4. He submitted that the investigation was unreasonable because Mrs Wainwright decided to exclude from her consideration footage of what happened outside the building by the main gate. By the time, the decision to dismiss was being made, that footage was unavailable. It was unfair to deprive the claimant of the right to access it and potentially to point out any mitigating factors which might emerge from it. It might have shown a response by Mr Lockwood to having his t-shirt pulled by Child A which the claimant might have been able to rely on in mitigation or as a comparison when Mrs Rowe was deciding if the claimant’s physical contacts were excessive, or should be treated in a manner comparable with those of Mr Rowe which were not sanctioned. 195.5. He referred to Ms Wainwright’s statement that the claimant stood in front of Child A with her arms crossed “which could be interpreted negatively.” This was, he submitted an unreasonable observation because Mrs Wainwright did not at the same time acknowledge that body language could be different in different cultures, and she failed to point out that Mrs Badesha also stood with arms crossed at certain points. 195.6. He criticised the use of leading questions in the process by Mrs Wainwright when conducting second interviews. He submitted Mrs Wainwright was picking out what she wanted to find by reference to the CCTV, and she was not conducting a genuine fact-find. He relied also upon Mrs Rowe’s answers in cross-examination where she says that she saw Child A grab Mr Lockwood’s t-shirt, but Mr Lockwood did not mention being grabbed at all in his own statement and pointed out that the questions were not set in any context for the claimant.[196]As regards the reasonableness of decision by Mrs Rowe to dismiss the claimant summarily (upheld by Dr Gregory) he submitted:- 196.1. There was no consideration of the fact that Mrs Badesha was happy to leave the claimant in sole control of Child A. 196.2. The respondent’s policies were not clear as to what constitutes unprofessional behaviour. It was clear from the respondent’s Policy that staff have power to use reasonable force. And Ms Rowe accepted the claimant was reasonable to use force but dismissed because the force she used did not achieve the required outcome. 196.3. Based on the CCTV the force used was proportionate to the circumstances. She found herself too close to Child A and then reacted to his violence. 196.4. The claimant was not trained in de-escalation. It was not fair to dismiss There was no clear guidance about when and how to use deescalation and when to use reasonable force. None of the respondent’s witnesses could point to any such guidance. The decision to dismiss in the absence of clear guidance was procedurally and substantively unfair. 196.5. The dismissal decision did not give proper weight to the claimant’s record. Her answers during cross-examination as to what other options were considered were unclear so the Tribunal should conclude she did not have a genuine belief in the claimant’s misconduct.[197]Mr Lee on behalf of the respondent submitted as follows:[198]As regards the fairness of the investigation/procedure:- 198.1. Concerning the failure by Mrs Wainright to consider or make available to the claimant the footage from outside the school, the claimant’s conduct outside is not criticised, and from what can be seen from the CCTV in the reception which covers the events outside the actions of Mr Lockwood cannot sensibly be compared with those of the claimant. The fact that they might indicate that Child A was aggressive adds nothing because the report already acknowledged that he was angry and aggressive. Leaving out the external footage was within the range of reasonable responses to the investigation required. Any suggestion that Mrs Wainwright deliberately concealed evidence is without support and this was not a case where the claimant had asked to see footage which had been taken into account and been denied. 198.2. As regards Mrs Wainwright using leading questions, many were not leading at all; those that might be said to have been were either context setting, asking for clarification, or recorded what Mrs Wainwright thought she was seeing so as to give others a chance to comment. No objections were made at the time by the claimant or her union representative. In any event the investigation report was followed by a two-hour disciplinary hearing. The impact of any poorly formed questions did not compromise the fairness of the procedure as a whole. 198.3. The criticisms that Mrs Wainwright failed to acknowledge the claimant herself was hurt in the incident, and that she recorded (incorrectly) that no witness saw Child A hit the claimant were not put to the witness in cross examination or were incorrect (the report referred to 2 members of staff having been injured) and in any event, were not commented upon at the time, and even if true, were not such as to fall outside the range of reasonable responses to the investigation and did not compromise the fairness of the procedure as a whole. 198.4. The criticism of Mrs Wainwright’s failure to take into account the prior events involving Teacher X is misplaced. The investigation was into the claimant’s conduct towards Child A, and the investigation report acknowledged that Child A was angry and aggressive during the time he was interacting with the claimant. The underlying cause of his dysregulated state was not on point, or at least such a conclusion was within the range of reasonable responses.[199]As regards the decision to apply the sanction of dismissal: 199.1. Mrs Rowe and Dr Gregory clearly genuinely believed that the claimant had subjected Child A to excessive force and that that was the reason for dismissal. No other reason was put to them in crossexamination. 199.2. The evidence from the CCTV footage justified this conclusion on the part of Mrs Rowe and Dr Gregory, or at least that conclusion fell within the range of reasonable responses to what appeared on the footage. 199.3. Their decision to dismiss accordingly also fell within the range of reasonable responses. Mrs Rowe said in cross-examination that she was not convinced that another incident of lack of control and use of excessive force would not recur. The use of excessive force against a child fell within the ambit of several paragraphs of the respondent’s Code of Conduct, and the claimant at the time (although her position during the proceedings was that she did nothing wrong) was that a lesser sanction of Final Written Warning would have been reasonable. 199.4. The claimant had not had restraint/positive handling training. She was not alone in that: some staff did, some did not. But the claimant was aware of the principle that force should be used as a last resort and kept to a minimum. She had received behavioural training in-house which included de-escalation strategies, and in her oral evidence she described applying such strategies in the past with Child A and she accepted that she was aware of Child A’s PLP and was following it. The respondent’s view that the claimant had had sufficient guidance but that she simply lost control and resorted early to excessive force was within the range of reasonable responses, especially given that the respondent owed a duty of care to children under its care and did not have to run a risk of a repetition. 199.5. Mrs Rowe expressly recognised the claimant’s long record in general and with Child A in particular, but her decision to dismiss nevertheless was within the range of reasonable responses. 199.6. The argument based on a comparison between the claimant’s treatment and that of Mr McMahon and Teacher X does not assist. There was no overlap between decision makers and the situations were not truly comparable so that differential treatment was within the range of reasonable responses. Analysis and Conclusions[200]We are satisfied that the reason for dismissing the claimant and upholding her dismissal was that Mrs Rowe and Dr Gregory respectively genuinely believed she had committed serious misconduct which fell within the scope of gross misconduct. The statements and oral evidence of both witnesses were consistent, and our conclusion is consistent with the contemporaneous documents. (Issue 1.2).[201]We are satisfied also that there were reasonable grounds for that belief at the time it was formed, and that the respondent had conducted a reasonable investigation (Issue 1.3.2).[202]We further conclude that the respondent acted in a procedurally fair manner (Issue 1.3.3).[203]Our detailed reasoning is as follows: Procedural Fairness[204]As regards the procedural steps prescribed by the respondent’s disciplinary process, the steps taken in relation to the investigation, the disciplinary hearing and the appeal hearing were compliant in each case with both the disciplinary policy and the ACAS Code – the claimant was given notice of the allegations, notified of the right to be accompanied, and was given the opportunity to review the evidence relied upon, informed of her right to adduce new evidence and to make representations. We accept that the respondents considered that informal resolution was not an appropriate first step in this case and that that fell within the range of reasonable responses.[205]The claimant did not substantively challenge the process on this basis - and we consider that she was correct not to do so – save in two respects: 205.1. First, in relation to suspension, Mr Ijezie criticised the decision to suspend the claimant on the day following the incident. He relied on the provision in the DfE guidance of 2013 concerning the use of reasonable force. That provides as a Key Point that “Suspension should not be an automatic response when a member of staff has been accused of using excessive force.” The guidance expands on this key point by referencing other guidance (“Dealing with Allegations of Abuse against Teachers and other Staff”) and states that suspension should not be automatic ‘or without careful thought.’ The Respondent’s Disciplinary Policy provides for suspension “in appropriate cases… whilst investigations are carried out’ and references the ACAS guidance that suspension may be appropriate where gross misconduct is alleged (5.5 (b)). Mrs Wainwright’s evidence was that she followed the Disciplinary Policy and when she reported the incident to the LADO, the LADO advised her to suspend the claimant, and that she followed that advice. The latter is set out in her investigation report. We accept that she acted for these reasons and that her action was within the range of reasonable responses and consistent with both the Disciplinary Policy and, in our judgment, the DfE guidance because careful thought was given to the issue and third party advice was followed. The procedure was therefore not unreasonable or rendered unfair or because of the suspension. 205.2. The second point was that the investigation report was delayed. Witness statements were taken immediately after the incident from Louise, the office administrator, Mrs Badesha and Mr Lockwood. Although the respondent could have taken the decision to progress the investigation during the police investigation, the evidence before us, as recorded in the minutes of the first investigation meeting on 4 October 2023 was that the police had asked the respondent not to interview the claimant initially, and only gave express permission for the CCTV footage to be shown to the claimant on 4 October 2023. It would have been unreasonable to investigate and report without giving the claimant an opportunity to explain her side. In the circumstances the investigation was continued as soon as reasonably practicable after the police had consented to the claimant being interviewed. The delay was therefore reasonably explained and no longer than necessary. Up to date statements were taken from Mr Lockwood and Mrs Badesha later. We are satisfied that the delay did not materially affect the fairness of the procedure. Unfairness: Reasonable investigation[206]Turning to the content and conduct of the investigatory process we conclude as follows:[207]The investigation was required to be particularly thorough and detailed in this case because the allegations against the claimant were grave and the consequences for her future employment were extremely serious, although the standard is not perfection but reasonableness in all the circumstances.[208]The claimant was notified of the charges and that she could be accompanied, and was in fact accompanied by her union representative at both investigation meetings and given sight of relevant documents and materials.[209]The investigation was reasonably comprehensive. Statements were taken on the day from Mr Lockwood, Ms Etherington and Mrs Badesha who were all of the relevant witnesses of events involving the claimant and Child A. As soon as practicable after consent was given by the police, Mrs Wainwright interviewed the claimant – on 4 October 2023 and asked for the claimant’s account of the incident. The claimant did not have access to the CCTV at that point. Mrs Wainwright conducted a follow up interview with the claimant to allow her to view the CCTV and asked follow-up questions of the claimant. Although some of the questions put to the claimant appear pointed it was within the range of reasonable responses for Mrs Wainwright to ask the claimant directly about matters of concern to her. Mrs Wainwright then conducted follow up meetings with Mr Lockwood and Mrs Badesha to enable them to comment in light of what Mrs Wainwright had heard from the claimant.[210]We are not persuaded that Mrs Wainright’s questions when interviewing the claimant or the witnesses were improperly expressed, or to the extent that they might have been better expressed, that any shortcomings had a material impact on the overall fairness of the investigation or disciplinary procedure. In the main the questions which Mr Ijezie relied upon as amounting to leading questions were, we find, largely intended to be context setting – referencing points in the CCTV- or to be expressing concerns which Mrs Wainright had about what could be seen and inviting comment on that. At no point in the disciplinary process was the issue of leading questions raised by the claimant or her union representative. We are satisfied that even if some questions could have been better expressed, thy did not have a material adverse effect on the reasonableness of the investigation or the fairness of the decision to dismiss.[211]Ms Wainwright’s observation that “It was seen on CCTV that [the claimant] stood in front of [Child A] arms crossed which can be interpreted negatively” without making express the point that body language should be interpreted culturally and that Ms Badesha had also at points had her arms crossed did not in our judgment have a material impact on the overall fairness of the process and it was within the range of reasonable responses for Mrs Wainwright to comment as she did. The CCTV does show the claimant in that position. Mrs Wainwright did not rely on the crossing of arms alone, but doing so while standing in front of Child A. In the event the crossing of arms was not a matter which was taken into account by Mrs Rowe in the decision to dismiss.[212]We find that it was within the range of reasonable responses open to Mrs Wainwright to exclude consideration of CCTV evidence from outside the school, and her doing so did not, in our opinion, lead to material unfairness in the investigatory or disciplinary process. Mr Ijezie accepted that the claimant’s conduct outside is not criticised. The only relevant issues identified by Mr Ijezie in relation to potential unfairness was that such footage might have shown how highly aggressive Child A was behaving, that he had pulled Mr Lockwood’s t-shirt and there may have been a response by Mr Lockwood which either caused to Child A to become more aggravated, or which the claimant could have relied upon as mitigation by showing a favourable comparison between her conduct and that of Mr Lockwood in response to any shirt pulling. In our judgment, what occurred outside the school and in front of the school gate is reasonably comprehensively visible from the CCTV in the reception area. The CCTV taken from inside appears to show there was one instance where Child A grabs at Mr Lockwood’s T-shirt as he was trying to lean into Mr Lockwood to seek to get out of the gate. Although the detail is obscured for a second, it appears that Mr Lockwood does not engage with Child A at all at this point but rather lifts his arms passively out of the way. Mr Lockwood’s statement at the time said that Child A was ‘trying to get past me, nothing too physical.” Leaving the external footage out of consideration at that point was, we consider, within the range of reasonable responses for the conduct of a fair investigation. In October 2023 as part of her investigation Mrs Wainwright asks Mr Lockwood specifically if Child A pulled his t-shirt. This was, we infer, prompted by her further review of the CCTV for the purposes of the investigation after the claimant’s second interview. By this stage, the outside CCTV had been over-written. He says “no he [Child A] was never like that with me, he knew he couldn’t get past me and you could see he was just upset and wanted to escape the situation”. Although not every detail is visible Mr Lockwood appears largely passive and his actions appear to be of a different quality and character to those for which the claimant was criticised. Furthermore, the fact Child A was angry and acting aggressively – unusually so - was already acknowledged by witnesses and visible from the interior CCTV footage. Any conduct by him outside adds little to an appreciation of that fact. Mrs Wainwright had not made the mistake of viewing the external footage, and taking it into account before then denying sight of it to the claimant. She did not view it at all. Overall, we are satisfied that the failure to take into account or provide to the claimant external CCTV footage was within the range of reasonable responses and its absence did not render the investigation overall unreasonable or the decision to dismiss unfair. Mr Ijezie put to Mrs Wainwright that she deliberately concealed this evidence. He did not point to any evidence from which we could infer deliberate wrongdoing of this kind, and Mrs Wainwright denied it. We find that she did not conceal that evidence.[213]We were not persuaded by Mr Ijezie’s submission that the decision by Mrs Wainwright to exclude from her investigation the prior conduct of Teacher X was unreasonable. Mrs Wainwright was tasked with investigating the actions of the claimant. Another senior staff member and team was tasked with the separate incident involving Teacher X. The fact that Teacher X’s mishandling of an incident in her classroom was such that it resulted in Child A being hit hard on the head with (as possibly understood by Child A) at least her acquiescence if not encouragement and led to his being removed from the classroom against his will by other children would, it seems to us, very likely have explained Child A’s particularly marked and unusually heightened level of dysregulation and desire to escape the school on that day. However, the investigation report by Ms Wainwright recognises, as did the witnesses, that Child A was ‘angry and aggressive during the incident’. In relation to mitigation the report recognises that the claimant had explained that Child A “came down the stairs very angry and was trying to leave the school”. Adequately investigating the situation facing the claimant was clearly necessary for there to be a reasonable investigation, particularly of such a serious charge, but having identified that Child A was angry and aggressive, a conclusion that the specific reason for his state of dysregulation was not relevant, or at least it was not important, was within the range of reasonable responses.[214]In reaching our overall conclusion in relation to the reasonableness of the investigation in all the circumstances we were alive to the very real possibility that Mrs Wainwright might have developed a fixed mindset or felt unable to revise her beliefs or her position and row back from her robustly expressed and highly critical initial report made to the LADO. We considered this as an aspect of Mr Ijezie’s submission that the claimant was ‘targeted’. We find that Mrs Wainwright had initially taken a very serious view of what she saw on the CCTV when she first saw it on 22 June 2023. She expressed her initial concerns to the LADO, and in her witness statement to police in trenchant ‘loaded’ language. She had reported (and we find subjectively believed) that the CCTV showed the claimant kicking at Child A at one point. Notwithstanding what, we infer, were Mrs Wainwright’s own adverse initial opinions about the seriousness of the claimant’s actions, we are satisfied on balance that the investigation she conducted later in October 2023 was fairly and reasonably conducted overall. Despite her initial opinions, she did not enter the process with an entirely closed mind or allow her initial judgments to induce her to conduct a flawed or self-serving investigation. In this regard we observe that Mrs Wainwright gave the claimant an opportunity to explain or provide context and mitigation for her actions, she identified the relevant parts of the contractual and disciplinary framework which she considered applied, she reflected on the evidence and identified matters which she considered demonstrated culpability, and those which were ‘inconclusive’, and she recorded the mitigations which the claimant gave. Ultimately she concluded (as she had initially) that the claimant had acted with excessive force and unwisely and in breach of conduct requirements even though Child A had himself behaved inappropriately. It was within the range of reasonable responses for her not to investigate further the inconclusive findings. The claimant was able to and did make her own representations on these issues to the dismissal and appeal officers.[215]We conclude that there was a reasonable investigation falling within the range of reasonable responses. Substantive Unfairness: the Decision to Dismiss[216]In our judgment, the decision to dismiss did fall within the range of reasonable responses open to the respondent and was not substantively unfair having regard to all the circumstances and the substantive merits of the case. Our reasons are as follows.[217]The claimant was ‘charged’ with two allegations. The first charge was that the claimant used ‘inappropriate’ force on a Year 6 pupil. The second was that the claimant acted ‘unprofessionally during the incident and not in line with the Koinonia Federation Code of Conduct’.[218]Mrs Rowe’s outcome letter identified that she had been asked to consider the allegations ‘both individually and collectively’ as amounting to gross misconduct which could result in dismissal. Allegation 1: Use of inappropriate force on a Y6 Pupil[219]The standard in relation to Allegation 1 which the respondent chose to apply was not in fact the standard of ‘inappropriate’ force, but (to the extent that there is a difference) that of ‘excessive’ force. Accordingly, it is against that standard, and not the arguably lower standard of ‘inappropriate force’ that we judge the reasonableness of the respondent’s decision.[220]Mrs Rowe acknowledged that staff have power to use reasonable force: That much is clear from both the respondent’s Physical Intervention and Restraint Policy and the DfE guidance. Ms Rowe accepted the situation before her was one in which the claimant could reasonably have used some form of physical force or intervention with Child A. We do not agree with Mr Ijezie that the decision to dismiss was taken not because the decision makers considered that the use of force at all was unjustified but because it did not achieve the desired result (this expression (i.e. did not achieve the desired result’) appears from Mrs Wainwright’s report and her conclusions in relation to the use of excessive force). The reasons given by Mrs Rowe, read fairly, were clear. She considered on the basis of the evidence before her that it was ‘evident beyond doubt that excessive force was initiated by the claimant and further exacerbated (sic) ultimately contributing to the escalation of [Child] A’s aggressive behaviour”.[221]As we have indicated above, the CCTV is in some respects ambivalent. On an initial viewing some of the interventions appear quite aggressive on the part of the claimant. A more nuanced viewing, informed by context and the claimant’s own account, might well lead a reasonable employer or a tribunal to reach different conclusions. We have, for example, reached the clear conclusion that there was no kick by the claimant. It is a measure of how ambiguous the footage is that Mrs Wainwright, the LADO, the police and the CPS all took the view that the footage showed as acting with excessive force towards Child A on up to three occasions, and that those interactions appeared sufficiently serious to merit a criminal charge of assault by beating. Our own views, and those of the magistrates who rejected the criminal charge demonstrate that reasonable views about the interpretation of what happened could reasonably differ in at least some respects.[222]Although others might have taken a different view, or might have differed from a conclusion that the CCTV evidenced the position ‘beyond doubt’, we are satisfied that Mrs Rowe genuinely believed in her conclusion that the use of force by the claimant was excessive and we find that that conclusion was one that fell within the range of reasonable conclusions. Indeed, that conclusion is reinforced by the fact that the claimant herself had accepted in the disciplinary hearing that ‘from what [I] can see’ the force she had used was excessive. The same point can be made in relation to the fact that the claimant, on advice from her union representative, proposed that the appropriate sanction should be a final written warning with training. The Disciplinary Policy states (at paragraph 7.2(d) that a Final Written Warning could be given regardless of previous disciplinary history if the conduct is “sufficiently serious”. So the claimant’s own proposal for an appropriate sanction itself recognised that the conduct was serious (although the claimant at this point was facing the obvious dilemma in her disciplinary and appeal hearings that an acknowledgement of wrongdoing might lead to a harsher sanction, whereas a refusal to acknowledge the inappropriate use of force might lead to criticism that she was not ‘learning lessons’). Although she told us that she had been told by her union representative that she should show remorse and acceptance of fault, the fact that she had done so is a relevant factor in weighing the reasonableness of the respondent’s decision to dismiss on the basis of the information then before Mrs Rowe, and the decision to reject her appeal.[223]We find there were, objectively, three instances where it was reasonable for the respondent to reach a conclusion that excessive force was used. First in the school office doorway when the claimant engaged with a tug-ofwar with Child A while she grabbed and held the straps of his school backpack. Second when she used her hand on his neck to direct him sideways and backwards towards a chair in the reception area, and third when she engaged with him physically while he was sitting in the chair to try to take his phone away. Allegation 2 ‘unprofessional conduct not in line with the Koinonia Code of Conduct”:[224]We disagree with Mr Ijezie’s submission that Mrs Rowe failed to take into account the fact that the claimant was left alone by Mrs Badesha. In her dismissal letter she stated: “Despite the challenges and the potential for SLT [senior Leadership Team] to request you to leave the scene…”.[225]There is more force in his submission that there was inadequate clarity or guidance about how to conduct herself and de-escalate. Had Allegation 2 been the only ground relied upon, the lack of clarity surrounding the basis of Mrs Rowe’s decision to dismiss may have been problematic for the respondent. 225.1. Mrs Wainwright had earlier concluded that the claimant had failed to meet two of the components of the Koinonia Competency Framework; Integrity and Wisdom. She had also behaved in a way that might have harmed a child (Code of Conduct paragraph 5.4(a)). The value of “Integrity” within the Competency Framework includes “making decisions that are fair and ethical and regulating one’s emotions….and behaviours to create a culture of trust”. The value of “Wisdom” within the Competency Framework includes: “acting calmly and rationally in all situations”. She also relied upon the claimant having failed to adhere to the SEND Policy page 7 and Behaviour Policy page 10 (staff…do their best to ensure …consequences are appropriate to the behaviour and individual needs [sic]”. 225.2. Mrs Rowe’s decision as expressed took into account ‘the code of conduct’ and the ‘values integral to our Federation vision’. In considering these matters she also took into account the claimant’s ‘explanation in managing [Child] A’s previous behaviour and commitment to ensuring their safety’’. However, in cross-examination Mrs Rowe was not clear about exactly what parts of the Code of Conduct and the ‘vision’ she had relied upon as having been breached, and her letter does not set this out by reference to underlying duties and obligations in the documentation. In re-examination she referred to paragraphs 2.1 (b) and (d) but not expressly to other parts. 225.3. The Code of Conduct at paragraph 1.4 provides that “the Code and our other HR policies are intended to set out our standards of conduct, our rules and our values”. And Clause 1.5 makes clear that the Code applies to all employees. 225.4. It is objectively clear that a failure to regulate emotions and behaviours, and a failure to act calmly was conduct which was not in accordance with the respondent’s Competency Framework. On the basis of the CCTV evidence, although we think to state that the claimant ‘at no point’ managed her emotions goes beyond a reasonable conclusion, there was in our judgment objectively evidence from which Mrs Rowe could, within the range of reasonable responses, conclude that the claimant did not manage or regulate her emotions or demonstrate self-awareness in connection with aspects of her behaviour towards Child A on the day in question. The difficulty for the respondent is that the claimant was dismissed for misconduct. The above provision appears in the respondent’s Competency Framework Document, and lack of competence is not the same thing as misconduct. 225.5. Paragraph 2.1 of the Code of Conduct sets out General Requirements and Expectations in relation to conduct. It emphasises that the health safety and welfare of the students is the priority. Paragraph 2.1(b) which Mrs Rowe specifically relied upon requires the use of “appropriate language and never to demean ,distress…others”. It was not an obvious provision upon which to place reliance, given that there is a specific section on Safeguarding in section 5 of the Code of Conduct which appears to us more likely to reflect the substance of Mrs Rowe’s expressed concerns. With some hesitation we accept that Mrs Rowe’s reliance on that provision could fall within the range of reasonable responses. She referred to and relied upon the claimant’s conduct as ‘’escalating the incident’ and ‘contributing to a breakdown in trust with [Child] A’ and specifically referenced Child A’s PLP (which contained details of how to deal appropriately with Child A so as to reflect his particular needs). On that basis it can be seen how she might reasonably consider that the claimant caused Child A distress. 225.6. It is clearer that it was within the range of reasonable responses for Mrs Rowe to place reliance on a breach of Clause 2.1 (d). That provision provides that staff are required to “respect the rights of others and treat them with dignity. Never threaten, bully, fight or assault anyone”.[226]Although the reasoning by Mrs Rowe in relation to Allegation 2 was poor, we are satisfied that she had objectively reasonable grounds, and did in fact believe that the claimant had acted with excessive force on occasion towards Child A, and that her conduct caused an escalation of the situation, and harmed the claimant’s relationship with the child, and relations with and amongst other staff. Further that she perceived a risk of repetition because she had concluded that the claimant lost control of her emotions.[227]Even if we are wrong and Allegation 2 could not reasonably or fairly have been relied upon as a basis for sanctioning the claimant because of a lack of clarity about the duties on the claimant and in Mrs Rowe’s reasoning, we are satisfied that dismissal because of Allegation 1 alone would have been within the range of reasonable responses. The claimant herself acknowledged that her interventions were at least a ‘serious’ breach of her conduct obligations. But in any event, we find that there was a sufficient evidential basis upon which Mrs Rowe could also conclude that Allegation 2 was made out, so that a finding that the two allegations were made out would also fall within the range of reasonable responses.[228]Mr Ijezie argued that, in the absence of clear guidance, and absent specific training, the fact that the claimant was acting in response to a novel and aggressive situation and, as she believed, in the interests of Child A’s safety means that her conduct could not reasonably be regarded as gross misconduct.[229]We are satisfied that it was within the range of reasonable responses that the respondent concluded that the conduct found could amount to gross misconduct and that, notwithstanding that neither the Behaviour Framework nor the Code of Conduct expressly refers to the use of inappropriate or excessive force in dealings with a child as a specific instance of gross misconduct, the claimant was aware before the events in question that such conduct could amount to gross misconduct. 229.1. The Disciplinary Policy at paragraph 7.4 contains a nonexhaustive list of matters which the respondent considers may amount to gross misconduct. These included: “(i) conduct that is likely to bring us into disrepute (ii) conduct giving rise to a child protection issue (iii) a serious breach of our Code of Conduct, or any other relevant code of conduct or professional standards; (x) unlawfully restraining a pupil.” 229.2. The claimant acknowledged that she knew that she should only use physical restraint as a last resort, and then only to the minimum extent required. She was also aware of the provisions in Child A’s PLP that required staff to remain calm and to give him options. She was aware that strategies could and should be used to calm Child A down, (usually it was enough calmly to ask for his bag or phone and to have a negotiation about returning to class).[230]We are satisfied that the claimant moved almost immediately to restraining Child A and pulling at his backpack straps and later pushed him towards a chair with her open hand on his neck area and struggled with him physically to try to take away his phone. She did not appear to act to deescalate or calm the situation initially. Instead, she was placing herself in close physical proximity to Child A, who was exhibiting high levels of agitation and aggression. By doing that she was exposing herself directly to the aggression that was directed towards her and appeared to have been increasing Child A’s level of dysregulation. She put herself in harm’s way and reacted physically when Child A resisted. In doing so she appeared to respond, albeit only for brief episodes in ways that could reasonably be seen as emotional and inappropriate, and involving brief instances of contact that could be regarded objectively as exceeding the minimum reasonably called for.[231]As we have said, the claimant herself recognised that her conduct appeared excessive, and by implication from her proposal of a Final Written Warning must be taken to have accepted that her conduct merited a sanction which was prescribed for serious misconduct.[232]Accordingly, we reject the submission that the claimant’s conduct could not, within the range of reasonable responses, be regarded as amounting to gross misconduct.[233]The real gravamen of the dispute appeared to us to be whether appropriate weight was given by the respondent, at the disciplinary and appeal stages, to relevant factors when making the decision to sanction the gross misconduct by way of dismissal rather than by way of a lesser alternative, such as a Final Written Warning plus training, or another option.[234]In favour of the claimant’s position that a lesser sanction was appropriate were the following considerations:- 234.1. Everything she did on that day was well-intentioned. She genuinely believed she was acting in interests of Child A and to keep him safe. Any force directed at him was not deliberate or intended to harm him. 234.2. Such contact as occurred did not result in any physical harm to Child A (although his mother complained of scratches to his hands, this may well have been the consequence ot Teacher X’s actions). Child A is reported as saying that the claimant ‘hurt him”, but there was no bruising. 234.3. The claimant had 10 years of exemplary service and a history of 5 years of highly effective work with this child. She was trusted as his safe adult. In the balance against this were brief seconds of misjudgement. 234.4. Child A’s dysregulation on that day was evidently unusually high. Management might reasonably have foreseen that the claimant’s established strategies would likely have been ineffective to calm him down. 234.5. Although the claimant had had some de-escalation training – or at least was familiar with de-escalation techniques and Child A’s PLP, she alone among those who had direct responsibilities for Child A had not had positive handling training. Had she done so it might have reinforced the need to use physical measures only as a last resort provided a framework for more appropriate physical interactions. 234.6. To Ms Rowe the claimant acknowledged that how she acted on 22 June she was not right and in future she would back off and move away and ask for training. That might be taken to indicate that the claimant was remediable, knew she was at fault and training could effectively reduce the risk of repetition. 234.7. Ms Badesha was content to leave the claimant in sole charge of Child A even after having witnessed their interaction in the office. This could weigh as a mitigating factor in the claimant’s favour: if the respondent’s position was that she should have withdrawn, why did the senior management not ask her to do so? 234.8. The claimant expressed contrition at the disciplinary and appeal hearings.[235]As against these, by the time the decision to dismiss was made: 235.1. The CCTV footage appeared objectively to disclose at least instances of conduct which a reasonable employer might consider evidenced breaches safeguarding or applicable behaviour or conduct standards towards children; 235.2. The claimant had herself accepted that her conduct appeared to be serious and a breach of standards which she herself sufficiently understood to apply to her in her dealing with children; 235.3. The conduct met at least three criteria for gross misconduct at [see Disciplinary Policy at page 306]; 235.4. The claimant’s conduct on the CCTV footage had been identified by the LADO, having viewed the CCTV as passing the threshold for referral to the police as a safeguarding allegation; 235.5. It had been identified by the police and the CPS as passing the threshold for criminal prosecution for assault by beating; 235.6. The school had a primary duty to safeguard its children from harm. The claimant’s actions on that day were inconsistent with her conduct in previous years and could reasonably have appeared to have involved at least some incidents of inappropriate physical contact or excessive force. This departure from previous standards on her part, and the reasonable appearance or momentary loss of some degree of emotional or physical control could support an inference that a similar loss of control might recur in the future (there was nothing which Mrs Rowe’s post hearing investigations revealed might explain such loss of control (e.g. illness or other stress affecting the claimant on that day preceding the incident)). A decision maker could reasonably take the view that that was a risk the school could not or need not run. 235.7. There were reasonable grounds upon which decision-makers could have concerns about the reputation of the school in public and amongst parents if they had continued to employ the claimant as a support assistant. This could arise from the mere fact of the extant criminal prosecution and the possibility of a later conviction. 235.8. Irrespective of the outcome of any criminal process, the event itself plausibly presented a risk of disruption to relations amongst staff, and the confidence of parents in the school and its processes for safeguarding.[236]The evidence before us was that Mrs Rowe considered that the CCTV footage disclosed the use of excessive force against a child which breached paragraphs of the respondent’s Code of Conduct and amounted to gross misconduct. Mrs Rowe said in her dismissal letter and in cross-examination that she considered that ultimately there was a risk that another incident arising from lack of control and the consequent application of excessive force might recur. That conclusion fell within the range of reasonable responses.[237]She expressly took account of the level of the claimant’s training, and that she had not had positive handling training, but considered that the claimant was aware of the principle that force should be used as a last resort and kept to a minimum.[238]Mrs Rowe expressly took into account as mitigating factors the claimant’s previous conduct record and the fact that Ms Badesha had not taken the step of directing the claimant to move away from the incident.[239]She also took into consideration alternative deployment options in other roles or at other sites and the option of a final written warning.[240]Her reasons and evidence also referenced the concerns above about the risks of reputational harm and harm to intra-staff relations if the claimant were kept on. She frankly accepted, and we find, that protecting the school from reputational risk was a highly potent factor for Mrs Rowe. Although we speculate that a different conclusion might have been reached if, by the time the decision was taken, the claimant’s criminal case had been dismissed, we are satisfied that taking into account reputational and staff relationship risks fell within the range of reasonable responses.[241]She took her decision only after a substantial period of reflection.[242]We find that her decision to dismiss in all the circumstances fell within the range of reasonable responses.[243]The appeal panel took into account representations from the claimant and concluded that the process of decision making followed at the first hearing was sound and that the decision to dismiss was an appropriate course of action in light of the explanations given by the claimant, the seriousness of the incident and the difficulty in returning the claimant to the staff team that had witnessed it and the fact that the claimant had not satisfied Mrs Rowe as to her knowledge of her responsibilities.[244]For similar reasons as above, we are satisfied that the decision to uphold the dismissal fell within the range of reasonable responses.[245]Accordingly for the reasons above we find that the claim of unfair dismissal is not well-founded and is dismissed. Wrongful Dismissal/Notice Pay[246]An employer is entitled to dismiss an employee without notice if the employee had been responsible for conduct which amounts to a repudiatory breach of contract, and the employer has accepted that breach.[247]To amount to repudiation the conduct ‘must so undermine the trust and confidence which is inherent in the particular contract of employment that the [employer] should no longer be required to retain the [employee] in his employment’. The employee’s conduct should be viewed objectively, and so an employee can repudiate the contract even without an intention to do so: .Briscoe v Lubrizol Ltd 2002 IRLR 607, CA, approving Neary and anor v Dean of Westminster 1999 IRLR 288.[248]A court or tribunal must be satisfied, on the balance of probabilities, that there was an actual repudiation of the contract by the employee. It is not enough for an employer to prove that it had a reasonable belief that the employee was guilty of gross misconduct. This is a different standard from that required of employers resisting a claim of unfair dismissal, where reasonable belief may suffice.[249]Whether the conduct relied upon amounts to repudiatory breach is a question of fact for the tribunal. Factors such as the nature of the employment and the employee’s past conduct may be relevant. The issue of whether misconduct by an employee amounts to a repudiation may also turn on the terms of his or her contract of employment, as properly interpreted.[250]Gross negligence by an employee, even if not deliberate or wilful, may entitle an employer to dismiss summarily provided that that act/failure is sufficiently serious. In Adesokan v Sainsbury’s Supermarkets Ltd 2017 ICR 590, CA, the Court of Appeal held that the focus must be on the damage to the relationship between the parties and that in a case of alleged gross negligence the question will be whether the dereliction of duty was ‘so grave and weighty’ as to justify summary dismissal. The employee’s position or level of seniority may inform the question of whether his or her failure to act is repudiatory. Analysis and conclusions[251]We refer to our analysis above in relation to the decision to dismiss, but set out our own findings in relation to the question of whether the claimant’s conduct amounted to repudiatory breach justifying dismissal without notice.[252]The Disciplinary Policy at paragraph 7.4 contains a non-exhaustive list of matters which the respondent states may amount to gross misconduct. These included: “(i) conduct that is likely to bring us into disrepute (ii) conduct giving rise to a child protection issue (iii) a serious breach of our Code of Conduct, or any other relevant code of conduct or professional standards; (x) unlawfully restraining a pupil.”.[253]The Code of Conduct provided that it was binding on all employees and that breaches of the Code and the standards expressed within it may result in disciplinary action, including dismissal for serious offences [section 1.5]. 253.1. Specific “General Requirements and expectations” included: 253.1.1. Never threaten…fight with or assault anyone 2(d); 253.1.2. Comply with our policies and any other rules, regulations or codes that apply to your work and the workplace 2(j);; 253.1.3. avoid actions that may discredit the Federation or bring it into disrepute 2(m); 253.1.4. apply the Federation’s policies on Pupil Behaviour and Discipline as situations demand in order to encourage and develop appropriate behaviours 5(c);[254]The Federation Behaviour document provided that: “We strive to be proactive rather than reactive to any behavioural response. We always seek to use positive interventions as early as possible in order to de-escalate any behaviour and help children return to their learning”. [p 196];[255]The Federation Restraint Policy provided: On rare occasions, circumstances may result in a situation that requires some form of physical intervention by staff. Our policy for physical intervention is based upon the following principles: Physical intervention should be used only as a last resort when other appropriate strategies have failed. Physical intervention should only be used if the child is at serious risk of hurting themselves or others. Any physical contact should be only the minimum required. Physical intervention must be used in ways that maintain the safety and dignity of all concerned. Staff are not expected to place themselves in situations where they are likely to suffer injury as a result of their intervention. Use of Physical Restraint Physical restraint should be applied as an act of care and control with the intention of re-establishing verbal control as soon as possible and, at the same time, allows the pupil to regain self-control. It should never take a form which could be seen as punishment. Staff are only authorised to use reasonable force in applying physical restraint, although there is no absolute definition of this. What constitutes reasonable force depends upon the particular situation and the pupil to whom it is being applied. Staff should de-escalate the behaviour where possible before resorting to physical intervention. However, as a general rule, only the force necessary to stop or prevent danger should be used, in accordance with the guidelines below. In all circumstances, alternative methods should be used as appropriate with physical intervention or restraint, a last resort. When physical restraint becomes necessary: DO Tell the pupil what you are doing and why Use the minimum force necessary Involve another member of staff if possible…. DON’T Act in temper (involve another staff member if you fear loss of control) Involve yourself in a prolonged verbal exchange with the pupil…..[256]The Federation Competency Framework included (as set out above, core values which staff were expected to uphold including Wisdom and Integrity.[257]We find there were, objectively, three relevant instances of conduct by the claimant: first in the school office doorway when the claimant engaged with a tug-of-war with Child A while she grabbed and held the straps of his school backpack. Second when she used her hand on his neck to direct him sideways and backwards towards a chair in the reception area, and third when she engaged with him physically while he was sitting in the chair to try to take his phone away.[258]We find that she consciously put herself in harm’s way and reacted physically when Child A resisted. In doing so she appeared to respond, albeit only for brief episodes in ways that involved momentary loss of emotional control and the application of inappropriate physical restraint or force which objectively exceeded the minimum reasonably called for in the circumstances. It was also the case that, in our judgment, her interventions escalated Child A's distress – different approaches by Ms Badesha were more passive and had a more calming effect on Child A.[259]The application of inappropriate force to a child is conduct that would be likely to bring the respondent into disrepute and raised a child protection issue. The involvement of the LADO and subsequent prosecution proceedings would of themselves raise that risk.[260]In these respects, the above conduct amounted to conduct identified by the Disciplinary Policy as potentially repudiatory.[261]Mr Ijezie argued that the claimant’s conduct could not amount to gross misconduct because the Code of Conduct did not provide clear guidance, and the claimant did not have specific training in regard to acting in response to a novel and aggressive situation and in the interests of Child A’s safety. In effect his submission amounted to an argument that this was a gross negligence not a misconduct case, and that the claimant’s conduct did not meet the threshold for repudiatory breach.[262]We are satisfied that the claimant’s conduct in the respects above was motivated by proper concern for Child A and not with an intention to do him harm, nor did she intend to bring the respondent into disrepute. We agree therefore that this is a gross negligence type of dismissal. Not one that involves wilful or deliberate misconduct.[263]We accept also that the Code of Conduct itself did not provide specific guidance. But underlying policies did provide guidance which specified the use of minimum restraint and only as a last resort after other methods had failed. The claimant acknowledged that she knew that she should only use physical restraint as a last resort, and then only to the minimum extent required. She was also aware of the provisions in Child A’s PLP that required staff to remain calm and to give him options.[264]The claimant was a very junior level employee, and she had less training than others who discharged similar functions with Child A. She had a long history of competent conduct towards Child A, and was trusted with him by the respondent’s senior leadership team. The deficiencies in her conduct were only momentary, they were disconnected in time (i.e: this was not a sustained single assault or restraint, but involved separate restraints in the course of a longer incident).[265]Weighing all of these considerations, but in particular the essential element of the claimant’s work which involved calm, measured and structured dealings to protect vulnerable children, we are satisfied that the claimant’s actions and loss of control, albeit momentary, did amount to negligent conduct which was sufficiently serious to constitute repudiatory conduct which went to the heart of her work with the respondent.[266]Accordingly, we find that the claim for wrongful dismissal is not wellfounded and is dismissed. Concluding Observations[267]This case struck us as a very sad one in which all those involved, believed at all times they were acting in the best interests of Child A in particular and in the interests of the children at the school generally in what appeared to us to be a very challenging environment. The claimant had an unblemished record of 10 years’ service working with children, and five years of faultless engagement with Child A. She clearly enjoyed the confidence of the school’s senior leadership team in her management and relationship building with Child A. On 22 June 2023 she was suddenly exposed to a situation in which a child with significant learning challenges was in a far more dysregulated, angry and aggressive state than she had experienced before. She appeared to us to have reacted instinctively initially in the doorway of the office, and largely reactively throughout the incident, motivated by genuine concern that, as he was shouting that he would, Child A would try to leave the school and that had he succeeded in doing so, he would have been exposed to danger. She created difficulties for herself because she chose to engage more robustly with the Child for whose safety she felt some responsibility rather than turning away from the challenge. At least two other staff had struggled properly to manage the difficulties presented by Child A on that day. She lost her job and, although acquitted, was subjected to criminal charges which remain on record. She has experienced considerable distress and lasting stigma because of momentary misjudgments under stress. A different employer might equally reasonably have concluded that in all the circumstances a lesser sanction than summary dismissal would have been appropriate, but it would be a clear error of law for the tribunal to fall into the trap of substituting its own judgment for that of the respondent. Approved by: