Mr K Lilly v Southend High School for Boys Academy Trust: 3200299/2024
EMPLOYMENT TRIBUNALS
Case No 3200299/2024
Between
Mr K LillyClaimantSouthend High School for Boys Academy TrustRespondent
Before
Employment Judge V OthenIn person for claimantMr Amunwa (instructed by counsel) for respondentDate 28 January 2026
JUDGMENT
The claimant was unfairly dismissed by the respondent.
REASONS
[1]The claimant brings an unfair dismissal claim against the respondent. He claims that his dismissal was unfair within section 98 of the Employment Rights Act 1996.[2]The respondent contests the claim. It says that the claimant was fairly dismissed for misconduct.[3]The claimant represented himself and gave sworn evidence. The respondent was represented by Mr Amunwa. It called sworn evidence from Louise Kent (HR manager) Rachel Worth (previous Deputy Head Teacher and Designated Safeguarding Lead) Robin Bevan (previous Head Teacher) and Paul Husselbee (Vice Chair of Governors). I considered evidence from a bundle of approximately 630 pages in length. Reasonable Adjustments.[4]The claimant required adjustments to the hearing as set out in previous case management orders. He appeared to struggle with understanding, communication, concentration and emotional regulation which may relate to his reported condition of ADHD. Frequent rest breaks were taken. Language was simplified as much as possible. Opportunities were afforded to him to regulate his emotions when this appeared to be difficult. Ancillary matters[5]An application was made by the claimant to adduce further documentary evidence as referred to in paragraph 24 below. The claimant first referred to this document during his cross-examination of Dr Bevan on the second day of the hearing. He confirmed that he couldn't think of any questions that he would want to ask Dr Bevan about it so agreed that this application would be better made at the beginning of the following day after Dr Bevan had given evidence. At the beginning of the third day, the claimant explained that the document was a medical report which confirmed an ADHD diagnosis. Some time was initially spent trying to identify the document and whether the respondent was already aware of it.[6]The respondent's initial response was to object to the application made by the claimant unless he was able to explain the relevance of it. After some enquiry by me, the relevance of the document to the claimant appeared to be the fact that it explained behaviour which had been relevant to the conduct for which he was dismissed. The respondent agreed that this document had been disclosed by the claimant as part of the case management orders but had not been included by the respondent in the bundle as it did not feel it was relevant because this report was not seen by the respondent before his dismissal. It objected to its inclusion in the bundle at this stage on the same basis.[7]Having reviewed the document briefly myself, I was of the view that it was of potential relevance to the issues as the report had been produced some four years before the claimant's dismissal, a copy of it had been sent to his GP and its contents appeared to be relevant to the behaviour which formed the reason for his dismissal. On this basis, I took the decision that it should be included in the bundle. In this decision, I took into account:7.1 the claimant's position as a vulnerable party who had received no legal advice or representation;7.2 the fact that the respondent was aware of this document as it had been disclosed previously;7.3 as it appeared to be relevant, it should have been included in the bundle by the respondent;7.4 although the claimant should have identified that it was missing before the hearing and should have informed the respondent of this, any potential prejudice to the respondent could be adequately addressed by recalling any of the respondent's witnesses to give evidence regarding it if it wished to do so, and by providing adequate time for its review by the respondent before doing so.[8]Following this decision, additional time was provided to the respondent's final witness, Dr Husselbee to review it before he gave his evidence and an opportunity was provided to him to give evidence about it. After he had finished giving evidence, respondent's counsel confirmed that it did not wish to recall any of its witnesses to give any further evidence about it. Relevant Issues.[9]The relevant issues to be determined with regard to liability were as follows:9.1 What was the principal reason for the claimant’s dismissal and was it a potentially fair reason under sections 98(1) and (2) of the Employment Rights Act 1996? The respondent asserted that it was a reason relating to the claimant’s conduct.9.2 If so, was the dismissal fair or unfair within section 98(4). In particular, the claimant alleged that dismissal was too harsh a sanction.[10]Some time was taken to discuss whether and how it might be appropriate to determine any further issues with regard to remedy, for example, any appropriate reductions. It was decided that in the circumstances of this particular case, it would not be appropriate for a variety of reasons. The reasons for this included the fact that the claimant had difficulty in understanding the issues and that it was appropriate to simplify them as much as possible so that he could fairly participate in the hearing. He had not adduced any evidence with regard to remedy, had indicated that he wished to be reinstated and the respondent indicated that the tribunal would be required to determine a series of other issues relevant to remedy. Credibility of Evidence[11]In general terms, I found all witnesses to be honest and credible. I was of the view that they tried their best to give honest evidence and answered questions, for the most part, in a direct and straightforward manner where they were understood.[12]With regard to the claimant's evidence and conduct in particular, various issues appeared to be apparent from his communication and behaviour. These were briefly referred to in the Case Management order of Employment Judge Misra of 13 December 2024. These included his lack of clear understanding of written and spoken language, for example, subjective and relative terms such as "informal", "reiterated", "professional" required explanation. In addition, he appeared to have a literal interpretation of language, for example, with the word "behaviour", the claimant appeared unable to understand how his 'actions' in the incident of alleged misconduct could amount to "behaviour" in his understanding of the meaning of this word. In addition, he appeared to have difficulty in understanding appropriate social behaviour and speech and modifying this accordingly for a Tribunal hearing. I have taken these factors into account in my findings of fact.
Findings of fact
[13]The relevant facts are as follows. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point. References to page numbers are to the agreed Bundle of Documents.[14]The claimant was employed as a Cleaner/Caretaker from 1 May 2007.[15]The following policies, procedures and guidance applied to the respondent's workplace and all its staff:15.1 The Code of Conduct Published by the Education HR Service dated June 2019 (page 71):15.1.1 The introduction sets out an overriding expectation on all staff to behave in a manner which demonstrates their suitability to work with children and uphold the standards and reputation of the school.15.1.2 Paragraph 5.1 of the code under the subheading "safeguarding and child protection": "it is essential that all adults working with children understand that the nature of their work and responsibilities related to it place them in a position of trust. Adults must be clear about appropriate unsafe behaviours for working with children…" It then specifies that "the relevant requirements specific to safeguarding and child protection are set out in the school's Child Protection Policy, the Statutory Guidance: Keeping Children Safe in Education" which it states is key statutory guidance which all employees must follow. It also refers to the "Guidance for Safer Working Practices Statutory Guidance".15.2 Its Disciplinary Procedure dated January 2021. Paragraph 8.2 at page 99: defines relevant disciplinary sanctions as follows:15.2.1 "written warning e.g. where there has been a failure to conform to standards;15.2.2 final written warning e.g. where there is further misconduct or the misconduct is considered to be sufficiently serious;15.2.3 dismissal with notice e.g. where misconduct is sufficiently serious or where conduct has failed to improve following previous warning(s).15.3 Warnings will set out the:15.3.1 nature of the misconduct and expectations of future conduct;15.3.2 length of the warning; and15.3.3 consequences of any future misconduct."15.4 "Guidance for Safer Working Practices" published and or adapted by various bodies such as the Department for education and National Association of Independent schools dated February 22 (109) which states as follows at paragraph 19 on a paragraph headed "One to One Situations": 15.4.1 "Arranging to meet with pupils from the school or setting away from the work premises should not be permitted unless the necessity for this is clear and approval is obtained from a senior member of staff, the pupil and their parents/carers".15.5 Child Protection Policy dated 2023:15.6 Statutory Guidance published by the Department for Education Entitled "Keeping Children Safe in Education from 2023" (159):[16]On 28 January 2009, the claimant received a letter from the then Deputy Head regarding an allegation that he had apparently taken video clip of a pupil on his phone. The letter evidenced a discussion with the claimant about appropriate behaviour with children. He was encouraged the claimant to compare his behaviour with other staff in a similar job around children and if that seemed "normal"; if not, the behaviour would be inappropriate. It was not a warning but a record of a discussion (page 371).[17]On 1 October 2010, further letter was sent to the claimant from the deputy head regarding a need to change his behaviour. This referenced verbal advice on four occasions that year. Again, it advised him to behave appropriately and listed some specific behaviour which he should avoid: 17.1 Doing high fives or making jokes with pupils, getting involved in football games or conversations, demonstrating tricks or watching matches, being part of the school charity slave auction or being in the dining hall at dinner or break times.[18]This was expressed to be advice which the claimant must follow and instructions to be obeyed. It was not however a warning letter which conformed to the definition under the Disciplinary Policy. Neither disciplinary conduct nor policy procedure was mentioned (page 372).[19]On 11 March 2013, a letter was sent from the Director of Resources to the claimant following an alleged specific incident of inappropriate joking with pupils and a complaint from a staff member about the claimant allegedly doing handstands against an office wall during lunch break. The letter stated that he must:19.1 "Ensure that you keep away from pupils at lunchtimes, break times and lesson changeovers"19.2 Withdraw from performing during Charity Week.[20]He was told: "a repeated failure to conform to these basic expectations and instructions could lead to disciplinary action for failing to carry out a reasonable management instruction….ultimately, this could lead to your employment at the school being terminated."[21]Then appear to be a break of approximately five years with no correspondence or apparent issues. During and from that time, the unchallenged evidence of the claimant was that he continued or resumed participation in some school charity events and performances such as staff/pupil football matches, DJ sessions and magic performances.[22]On 15 October 2018 the claimant received a letter from the Head Teacher entitles "letter of expectation". This recorded a meeting about the claimant allegedly having extended breaks and conversations on 11 October 2018. The language of this letter was different, less straightforward and clear, for example: "While it is appropriate to be of a friendly disposition, you should always maintain a professional manner when talking to pupils within school". The letter asks him to take breaks in CT office, staff room or off site, not with pupils and said that failure to meet the expectations may result in action under the Disciplinary Procedure (page 376).[23]On 9 July 2019, the claimant attended an assessment with a clinical psychologist at Basildon mental health unit/hospital for assessment to see whether he met the criteria for Autism Spectrum Disorder.[24]A report was produced by a clinical psychologist from this assessment dated 4 December 2019 and a copy was sent to the claimant's GP. This included the outcome of a "Diagnostic Interview for Social And Communication Disorders" which reported that the claimant had previous difficulty in holding down paid employment due to inappropriate behaviour. In adult intelligence scale tests, he scored very low; within the 3rd to 6th percentile for intellectual functioning, verbal and perceptual reasoning and comprehension, working memory, attention, concentration and mental control. It also reported a screening assessment for ADHD which described many consistent behaviours such as misunderstanding and missing instructions, impulsivity and a lack of risk appreciation. The conclusion was that he did not meet the diagnostic criteria for ASD but: "he does experience difficulties in his general abilities in relation to others of the same age. He struggles in verbal comprehension, perceptual reasoning and working memory and it is clear that he does present with symptoms which are consistent with a diagnosis of ADHD". It recommended talking therapies, short concise instructions and checking these instructions by asking him to repeat back his understanding as well as signposting to various information and resources (page 625).[25]To be clear, this clinical psychology report was not seen by the respondent at any stage. The evidence is consistent with the fact that it was not received by the claimant or his family until after termination of employment.[26]There was then a further break of approximately three years with no apparent evidence of continued problems.[27]Between January 2022 and 2023 there were a series of performance appraisals with the claimant which involved weekly meetings. A later record which appears to have been dated January 2023 noted that: "there have been times when it has been necessary to remind you to make every effort to stick with the timings of your work schedule" and discussed performance and conduct issues such as bins not having been emptied. It reminded him of the school's "high expectations of cleanliness for the premises and maintaining appropriate conduct at all times" saying that contact with pupils must be kept to a minimum" (page 378).[28]A letter dated 3 March 2023 from the facilities manager referred to a performance review meeting on to March 2023. Its context was recorded as "a number of instances during January and February, when you had either been present in the Sixth Form Common Room when you were due to be undertaking tasks elsewhere in the school, or had not performed on certain tasks as expected." It directed him to only enter the sixth form block to collect items from the school canteen and that with students, maintaining "a distant professional relationship with them, as is appropriate to your role". The majority of the letter concerns expectations regarding standards of cleaning, gave a series of instructions about where he should clean and to what standard. Informed about a four-week performance review. After which formal capability procedures may follow. No mention was made of disciplinary conduct or procedure (page 392).[29]On 22 May 2025, a written warning letter was issued to the claimant about his alleged standards of performance (page 394). This was stated to last for one year and made him subject to a formal monitoring until 30 June 2023 when he may be removed from the respondent's formal capability process if there is an acceptable improvement in performance. The letter contained an "Additional Note" which was stated to be about some "seemingly negative comments" made by the claimant which indicated a "relaxed approach" by the claimant to the respondent safeguarding policies. It then contained the link to the “Keeping Children Safe in Education Statutory Guidance". It attached to its copies of the previous letters dated 11 March 2013 and 15 October 2018, reminded him of their contents and told him that: "failure to meet those expectations may result in further action under the formal disciplinary procedure being taken against you".[30]The letter confirmed a discussion which had taken place regarding the claimant's "personal circumstances". It indicated that the respondent was aware that the claimant had attended an assessment for Aspergers syndrome by the NHS in 2019 but stated that as there was no communication from him about this, it presumed that no diagnosis or further medical evidence was made at that time. It further acknowledged that he awaits a diagnosis of ADHD.[31]A handwritten notes appeared at page 483 of the bundle. Dr Bevan explained that this recorded a meeting between him, Mrs Kent and others about the claimant's report of ADHD. It apparently recorded the advice given to Mrs Kent from its occupational health advice service that it was "unable to give accurate advice/adjustments without a medical diagnosis".[32]At the beginning of September 2023, Rachel worse prepared/updated a document entitled "Child Protection Procedures Summary" (The Summary Document) (page 441). This was updated at the start of every academic year and comprised a comprehensive summary of the various safeguarding policies, procedures, duties and requirements of contents of just over three pages in length. Both Mrs Worth and Dr Bevan acknowledged that the various policies and guidance documents pertaining to safeguarding requirements were so lengthy and complex in nature that it would be difficult for staff to understand and memorise all their contents. Its purpose therefore was to summarise the main requirements. The bulk of the document covers the subject of abuse, and procedures to be followed in cases of reported abuse. It contains a relatively short section of bullet points regarding avoiding potentially damaging situations which contains the following wording: "staff in a school are in a position of trust and need to maintain a solely professional relationship with all pupils-including those in the sixth form. This does extend to contact with pupils outside school, whether that contact be face-to-face, electronic or online…… If there is any likelihood that you are likely to meet an SHSB pupil in an informal or social context, it is important that you let RVW/RMB have details beforehand".[33]At the start of the academic year 2023, on the claimant LM. 4 September 2023, there was a full staff meeting at which the claimant was present for the first 20 minutes to half an hour. During this time, The Summary Document was read out verbatim.[34]On 5 September 2023, during the claimant's lunchbreak, he accepted a lift from three, six form, 18 year old students in a car, to McDonald's, where he ate lunch. He also accepted a lift back to school with the same students. This incident was reported to Dr Bevan by another staff member as a member of the public/friend had apparently informed him that they had seen the claimant in the car.[35]The claimant was suspended on 25 September 2023 (page 354).[36]An investigation was conducted by Rachel Worth which included interviewing the claimant and other witnesses as well as gathering other documentation. An Investigation report (page 337) was completed. This was lengthy and detailed and attached all relevant evidence which included the minutes of the investigation meeting with the claimant in which he admitted that he should not have got in the car with the boys that it had been a silly idea amongst other things. The report noted that the claimant was awaiting diagnosis for ADHD and referred to the note of the meeting from 14 June 2023 between Mr Bevan, Mrs Kent and others. Its conclusion was that the claimant's behaviour was in breach of school procedures and policies, "not for the first time". It further noted that: "It is possible there is an issue with cognition. In the interview, Mr Lily stated that he had never been told he can't go with students to get McDonald's. This suggests that unless Mr Lilly is talked through every potential contact scenario, he will never be unable to fully appreciate the boundaries of professional relationships with students in a school setting. This is an unrealistic expectation".[37]A disciplinary hearing was convened with Dr Bevan on 18 October 2023. This started at 4 PM and lasted for one hour. The minutes show that Dr Bevan asked the claimant whether he thought that what he had done had been a good choice and the claimant admitted that it had been stupid. The claimant read from a prepared statement. Dr Bevan asked him about his preferred outcome which was to remain in employment. He expressed his remorse. Dr Bevan then asked if there are any final questions or comments at which point his mother brought up his ADHD assessment. It was explained that he had undergone an assessment (the one previously preferred to Basildon Hospital) and the outcome was being awaited but it had not been received. Dr Bevan then considered his decision for 20 minutes. He then reconvened and delivered a verbal decision which was largely identical to a letter of dismissal dated two days later.[38]The letter of dismissal dated 20 October 2023 (page 536):38.1 referenced safeguarding policies and guidance as summarised in The Summary Document and specifically quoted instructions regarding arrangements outside school;38.2 referenced the previous verbal and written management instructions given to the claimant;38.3 referenced the mitigating circumstances which he said he had taken into account regarding an assessment for ADHD and possible associated additional needs;38.4 concluded that his conduct amounted to a "repeated failure to follow legitimate management instructions and to comply with school safeguarding policies and procedures";38.5 concluded that he could not be fully confident that there would not be a further lapse of judgment or "stupid moment";38.6 confirmed his decision that his actions amounted to serious misconduct and that he should be dismissed with notice so that his employment would terminate on 10 January 2024.[39]With regard to the mitigating circumstances which he said he had considered, he explained that he had asked himself three questions:39.1 "Was the advice and direction, in relation to pupil interactions, communicated to you in terms that you could reasonably have been expected to understand?39.2 Had that advice been repeated sufficiently and or recently, so thatnotwithstanding any "additional needs"-you could reasonably have been expected to have that direction "in mind"?39.3 Was there sufficient support and adjustments made to your work schedule to accommodate the need for duties to be completed, and rest breaks taken, without the risk of unwarranted pupil interaction?"[40]He explained that because his answer to all three questions was yes, this enabled him to reach his decision to dismiss. His witness statement further explained that the school had made adjustments to support the claimant but, in referring to the findings of the investigation, stated that there had been nothing to suggest that his ADHD or related symptoms could be cited as justification or explanation for his behaviour.[41]During his evidence, Dr Bevan explained that he felt that the claimant did understand that he should not be spending the lunchtimes and break times with pupils, but he was not confident that he knew that what he had done had been wrong. After specific questions from me, Dr Bevan explained that the policies and procedures which he regarded to have been breached by the claimant were the Staff Code Of Conduct paragraph 5.1 and the overriding expectation therein as well as the Guidance for Safer Working Practices regarding arranging to meet with pupils in one-to-one situations (see paragraph 15.4.1 above).[42]During cross-examination, Dr Bevan said that the only allegation which he considered as part of the disciplinary process was this incident; he did not take into account any other warnings or conduct although he did take into account the instructions /advice that the claimant had been given about how to behave.[43]On the subject of medical evidence, he did not reconsider the advice obtained from occupational health about the fact it would not be possible to provide any other advice without a diagnosis, although he was aware of other cases in which OH advice had been given without diagnosis, for example on the basis of GP records. He did not consider contacting the claimant's GP. He accepted, in general terms, that the claimant's behaviour was consistent with a pattern of neurodevelopmental needs.[44]When specifically questioned by me about his view of the effects of those needs on the misconduct of the claimant, Dr Bevan accepted that in terms of the claimant's levels of impulsivity at least, this had an effect. However, it was his conclusion that the advice that he had been given previously should have/did "override" this effect. This admission was inconsistent with the blanket assertion made at paragraph 40 above that there was nothing to suggest that his ADHD or related symptoms could be cited as explanation for his behaviour.[45]The claimant appealed against the decision on 21 October 2023 (page 542) and an appeal hearing took place on 7 December 2023 with a panel of governors with Paul Husselbee as chair. An appeal outcome letter dated 13 December 2023 (page 574) upheld the decision to dismiss him.[46]With regard to the evidence from the appeal, it is largely consistent with the disciplinary hearing and process. The only additional or significant points to note are as follows in no particular order:46.1 As with the minutes from the investigation and disciplinary hearings, and the evidence from this hearing, there is conflicting evidence concerning the claimant's appreciation or knowledge about whether what he did was wrong. At some points he indicates this knowledge but at other points, it seems very clear that he does not.46.2 The appeal outcome letter stated: "it is clear that you have a genuine difficulty in understanding the rules and the importance of not "crossing the line" of unprofessional relationships when dealing with students". This is consistent with Dr Huselbee's assertion in evidence that he did not regard the claimant's behaviour as "wilful misconduct". When I sought to clarify this with him, he explained that he did not regard it as being premeditated but he did not explain his understanding of the claimant's understanding with clarity despite attempts for clarification being put on a few occasions. He concluded by saying that he was concerned about the claimant's ability to understand instructions.46.3 His decision was that dismissal was reasonable as the claimant's behaviour had amounted to serious misconduct or conduct which did not improve despite previous warnings, as defined by paragraph 8.2 of the Disciplinary Procedure.46.4 Mr Bevan's witness statement says of the appeal hearing that he was asked whether he took into account the impact of the claimant losing his job after 16 years to which he explained that he did take the current job market into account and recognised that the claimant's dismissal would present him with a serious challenge but his view was that the claimant would be better employed in a different environment.46.5 Dr Husselbee's view on medical evidence was that notwithstanding any medical evidence, the school had already done all it could possibly do to make adjustments for the claimant and that a diagnosis would have made no difference to the decision.46.6 When specifically asked by me whether it would have made any difference to his decision whether he had had access to the report from clinical psychology, he answered that it would not because adjustments had already been made that were commensurate with a diagnosis of ADHD anyway.[47]The claimant's effective date of termination was 10 January 2024. He remained on suspension for his 12-week statutory notice period. He has not found employment since his dismissal.[48]My further, general findings of fact on the above events are as follows:48.1 On the claimant's evidence, when specifically asked by me what his understanding of a "professional" relationship with pupils was (as defined by the guidance and The Summary Document), he asserted that he was not too sure as he had been employed for 16 years and there'd been no complaints about him. When pressed by me about what he thought the word professional meant, he said that he thought it meant "being really good with students". This was later challenged by the respondent in submissions as being incredible and unauthentic and it was asserted that the claimant clearly knew what a professional relationship with pupils meant. I accept the claimant's evidence about this. It is consistent with his lack of understanding about other subjective, relative terms (such as informal) and is also consistent with the other evidence from the respondent's witnesses and the documentary evidence about the claimant's difficulties in understanding.48.2 With regard to the respondent's evidence about what it thought about the effect of the claimant's cognition and/or ND needs on his behaviour, I find that Mrs Worth, Dr Bevan and Dr Husselbee all knew or suspected that those needs had a causal effect on the behaviour which was the subject of his dismissal. The various evidence from all three stages of the investigation, disciplinary hearing and appeal referred to above all indicate that they thought that the claimant's deficits in impulse control, appreciation of risk and comprehension resulted, in some degree, to what he did.48.3 They also took the view that they understood enough about his needs and their impact on the claimant, his behaviour and this incident, not to need any further medical information, guidance or advice. Both Dr Bevan and Dr Husselbee referenced the respondent's experience of pupils with additional needs as their rationale for this.48.4 There was never an issue in dispute between the parties that the claimant's behavioural conduct posed a risk in terms of inappropriate behaviour from an abusive or sexual conduct perspective at any time. In addition, the claimant was generally well liked by pupils. Relevant law General Principles
Relevant law
[49]I am fully aware, and was reminded by respondent's counsel by way of submissions, that this is not a claim for disability discrimination brought under the Equality Act 2010. This is a case of unfair dismissal and it must be determined by me in accordance with the relevant law pertaining to that claim. I have had that principle firmly in mind when considering the evidence in this case.[50]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. In this case the respondent admits that it dismissed the claimant (within section 95(1)(a) of the 1996 Act) on 18 October 2023 and his EDT 10 January 2024.[51]Section 98 of the 1996 Act deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.[52]In this case it is not in dispute that the respondent dismissed the claimant because of his conduct. The respondent has satisfied the requirements of section 98(2).[53]Section 98(4) then deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend 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.[54]In misconduct dismissals, there is well-established guidance for Tribunals on fairness within section 98(4) in the decisions in Burchell [1978] IRLR 379 and Post Office v Foley [2000] IRLR 827. The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, in deciding whether the employer acted reasonably or unreasonably within section 98(4), the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances. It is immaterial how the Tribunal would have handled the events or what decision it would have made, and the Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones [1982] IRLR 439, Sainsbury’s Supermarkets Limited v Hitt [2003] IRLR 23, and London Ambulance Service NHS Trust v Small [2009] IRLR 563). Additional case law:[55]Required standard of investigations: I am reminded of the principle that although the overall standard required of any disciplinary investigation is that it should only be to a reasonable standard, it should take into account the seriousness of the allegation an employee's future. Cases such as A v B [2003] IRLR 405 upholds the principles that serious allegations should be the subject of careful and conscientious investigation because of the risk that employees may lose their reputation and their prospects of securing future employment.[56]With regard to the potential impact of an employee's health needs as a contributing factor to misconduct, I have considered the case of Hastingsbury School v Clarke UKEAT/0373/07/DA. Its facts were worthy of specific review as they bear many similarities with this case.[57]While it is not appropriate to include all the facts, in that case, the claimant was a schoolteacher. He was early in his employment and his probationary period had been extended because of reservations about his behaviour with pupils being inappropriate, including sharing information about his personal life, larking around with students etc. Two formal complaints were made about him by female students three years into his employment about inappropriate conduct, potentially of a sexual nature. He was interviewed about these incidents by the Head Teacher but denied the complaints. The Head Teacher was concerned about his mental health and suggested he take the remainder of the term off to seek medical help. The Head Teacher did consider occupational health referral, but no referral was made. Shortly thereafter, further staff concerns were raised and further parent complaints about inappropriate behaviour of a sexual nature. He was suspended, a referral was made (under safeguarding policies or the equivalent) and police were involved. A disciplinary hearing was arranged with the Head Teacher and the claimant informed him that a doctor had confirmed there was nothing wrong with him. The disciplinary hearing was resumed with governors present at which the claimant again confirmed that he had been assessed by community health and had been given a clean bill of health. He was subsequently, summarily dismissed, for gross misconduct by way of letter shortly thereafter. The ET found that the claimant had been unfairly dismissed. In this particular case, it took into account that the respondent had ignored the advice of its human resources facility to obtain medical evidence. The ET found that the disciplinary procedure should have been suspended pending a referral to occupational health: "That might have given further information to the employers which would have been highly material at this stage of determining whether, in the circumstances, dismissal was an appropriate sanction to impose. It might also have caused them to take the view that the case really ought to be seen as an ill health issue rather than one relating to conduct.…". The Employment Appeal Tribunal held that the ET was "entitled to conclude that a reasonable employer would not have dismissed for these acts of misconduct without at least taking steps to investigate further that they may have had a medical or psychological cause which could have been adequately treated….The tribunal clearly found that no reasonable employer would have treated the question of health wholly independently from the disciplinary process. We think that they were plainly right to do so. It is, after all, obligatory for tribunals to assess fairness under section 98 (4) ERA by having regard to all the circumstances of the case, and this is a relevant circumstance".[58]I must also have regard to the ACAS code of practice on disciplinary and grievance procedures. This normally envisages a staged disciplinary approach with a written warning, final written warning and dismissal as the last stage. It is well worn territory that some acts, termed as gross misconduct, are "so serious in themselves or have such serious consequences that they may call for dismissal without notice." Gross misconduct has been defined in case law such as, for example, Neary v Dean of Westminster [1999] IRLR 288 as conduct that "so undermines the relationship of trust and confidence….That [the employer] should no longer be required to retain [the employee] in his employment]."[59]Ultimately however, terms such as serious misconduct and gross misconduct are not terms which are included in the Employment Rights Act 1996. Ultimately, that is the statutory test which I must apply and that depends on whether, in all the circumstances, an employer acts reasonably or unreasonably in treating the misconduct as a sufficient reason for dismissal. Conclusions Genuine belief
Conclusions
[60]I accept that the dismissing manager (and the appeal manager) had a genuine belief in the claimant's misconduct. There is no evidence that either had another reason for the claimant's dismissal. The allegations of misconduct are set out in paragraph 38.4 above. Was that belief based on reasonable grounds?[61]The claimant was dismissed for two allegations of misconduct:61.1 a failure to comply with school safeguarding policies and procedures; and61.2 a repeated failure to follow legitimate management instructions.[62]With regard to the first of these, the general safeguarding policies and procedures referred to variously by the respondent are complex, detailed and lengthy. With regard to the specific breach of the requirements set out in paragraph 15.4.1 above, the respondent's evidence was that the claimant could reasonably have been expected to understand or know of that requirement from The Summary Document. On a literal reading of that, it is arguable that the claimant was not in breach. The guidance and summary concern arrangements to meet pupils in an informal or social context. The claimant did not "meet" pupils in this context or manner (and/or did not make arrangements to do so) as his actions resulted from an unarranged request made by those pupils at school.[63]In relation to a "repeated" failure to follow legitimate management instructions, there had been a series of instructions from 2010 onwards about so called normal, professional and inappropriate behaviour, as well as various instructions about standards of work and performance. In 2013, the claimant was told that he must keep away from pupils at lunch and break times. This letter was again sent to him in May 2023.[64]Overall, therefore, I conclude that the respondent did have reasonable grounds to believe that the claimant was guilty of the misconduct alleged of him, particularly with regard to the failure to follow management instructions. I consider that it was reasonable to regard his behaviour in having accepted the lifts and accompanying the pupils to McDonald's was a failure to keep away from pupils at lunchtime as instructed. There are more difficulties in concluding that this belief was reasonable with regard to the specific safeguarding documentation, which is referred to because of the specific wording, which is cited although in general terms, it is reasonable to conclude that this behaviour could be regarded as a breach and that it was not appropriate. Was that belief based on a reasonable investigation?[65]Overall, the investigation had all the hallmarks of being reasonable. It involved an interview with the claimant, witnesses and a detailed investigation report which included all relevant documentation to which the respondent had immediate access. Investigation into the actual conduct required little action in any event because the claimant admitted what he had done and there was no dispute that he had done it.[66]I am concerned about the lack of investigation into the claimant's cognitive/neurodevelopmental needs and the effect of any potential conditions on the claimant's conduct. The respondent did not appear to appropriately consider this, concluding that because, in its view, based on its understanding of the claimant's needs, it had made appropriate adjustments to his role and its communications with him, other medical evidence was not needed. It did not consider exploring the claimant's medical needs or diagnosis, other than to tell the claimant to pursue this, and did not consider whether these needs would, or could be treated by way of medication, therapy, further training or education. This investigation would not have shed any further light on what the claimant actually did but could have explained why he did it, whether and to what extent it resulted from his cognitive functioning, any disability or medical condition, any unmet needs and whether treatment could address these needs, such that this behaviour would be less likely to occur in the future. There was no consideration about contacting the claimant's GP to enquire about an up-to-date position with his ADHD assessment or the outcome of the assessment for Asperger's which it knew had taken place in 2019. It expected the claimant to pursue and effectively communicate the outcomes from these assessments despite knowing about his communication difficulties. It is submitted on behalf of the respondent that a reasonable employer would not be expected to take such action and that it would have made no difference anyway. Dr Bevan said to me in evidence that it would not normally contact an employee's GP in disciplinary situations. However, this was not a normal situation. This was a claimant who clearly evidenced complex cognitive needs of which the respondent was aware. The respondent had no clinical or psychological knowledge or experience. It assumed that it had enough knowledge and expertise to reasonably understand the claimant's needs, and his understanding, and it based that, at least partially, on its knowledge of dealing with SEND pupils and the claimant's previous history. I do not consider that to be the conclusion of a reasonable employer. It was obvious that the claimant's repeated behaviour resulted, to some extent from his cognitive or neurodevelopmental difficulties, and the problems with his behaviour kept recurring. This is not consistent with a reasonable conclusion that cognitive or medical needs are reasonably being addressed/reasonable adjustments made, and that no further investigation would be reasonable in the circumstances. Had the respondent made reasonable enquiries with his GP about the assessment which had been done and the assessment which it knew was pending, it was likely, on the balance of probabilities, that it would have been informed about the ASD assessment report which gave valuable information about the claimant's behaviour and the reasons for this. It may also have been able to obtain information about the ongoing ADHD assessment process and any possible treatment options.[67]The respondent also failed to consider going back to occupational health to ask for further advice. It was aware that the occupational health advice service had previously told it that it could not advise on workplace adjustments, but it did not consider asking for advice about the up-to-date disciplinary situation or consider asking for advice with access to the claimant's GP records. Based on the evidence of Dr Bevan, OH advice had been given in the past on the basis of GP records, and no explanation was provided as to why this was not even considered in this case. If the respondent was considering a dismissal for capability reasons which was related to ill health or disability, for sickness absence for example, it is inconceivable that the respondent would not have considered medical evidence via OH or at least GP enquiry. This would have been an essential part of a reasonable investigation. There is no reason why the same is not true of a dismissal for misconduct.[68]Various comparisons can be made with Hastingsbury, most notably, that in that case, the ET view which was endorsed by the EAT, was that the disciplinary procedure should have been suspended pending a referral to occupational health because "That might have given further information to the employers which would have been highly material at this stage of determining whether, in the circumstances, dismissal was an appropriate sanction to impose. It might also have caused them to take the view that the case really ought to be seen as an ill health issue rather than one relating to conduct."[69]I have in mind that the standards of investigation of a case like this, in which a claimant with significant cognitive challenges, and 16 years of employment, and when accused of breach of safeguarding policies, requires conscientious investigation. The impact on the claimant of dismissal would be significant, as Dr Bevan acknowledged during the appeal hearing. I also have in mind the size and administrative resources of the respondent which had access to HR advice. Whilst the duty on the respondent to investigate was no higher than a reasonable requirement, I do not consider it that it was reasonable, in all the circumstances of the case, for the respondent not to have considered the claimant's medical position in further detail Was dismissal within the band of reasonable responses?[70]I have the band of reasonable responses clearly in mind in reaching my decision. It is immaterial what decision I would have made or what other employers may have decided. I must consider whether no reasonable employer would have dismissed the claimant in the circumstances of this case.[71]This is the most finely balanced aspect of this case. In reaching my conclusions I have considered the following in no particular order: 71.1 What the Claimant did amounted to misconduct. He had been told to keep away from pupils during lunchtimes and this clear instruction was repeated in May 2023. He was told that a repeated failure to do this could result in disciplinary action. The Summary Document contained an instruction not to arrange to meet with pupils outside of school without notifying the school first. He went in a car with school pupils away from school premises. He admitted after the event that this had been stupid, risky, and that he should not have done it. School safeguarding policies and procedures and adherence to them are extremely important for a whole host of legal and other reasons. The school had a duty of care to its pupils and to the claimant, and school staff members like the claimant should not do what the claimant did. Despite this, I've also considered the following:71.1.1 The respondent itself did not believe that the claimant's behaviour amounted to gross misconduct. It categorised it as serious misconduct. In its disciplinary policy, it can dismiss if conduct is sufficiently serious or where conduct has failed to improve following previous warnings. The claimant never received any disciplinary warnings, as defined under its Disciplinary Procedure.71.1.2 The evidence of Dr Bevan was that the claimant was dismissed for this incident and that his conduct in previous incidents were not taken into account. This however is inconsistent with the dismissal outcome letter which expressly refers to "repeated failures" by the claimant indicating that previous incidents, which were not subject to any disciplinary investigation or process, did form part of his decision. I note also that the investigation report concluded that the claimant's behaviour was in breach of school procedures and policies, "not for the first time".71.1.3 The policies and The Summary Document, as previously explained were long and it would not have been reasonable for the claimant to understand many parts of them. He understood clear and unambiguous information around abuse for example, as is clear from his written documents, however, many of the more subjective, complicated and relative terms were clearly not understood or known by him. The specific requirements about arrangements for meeting outside school were a small part, delivered and communicated within The (lengthy) Summary Document which was read out verbatim and mainly concerned abuse and reporting procedures. For someone with attention and comprehension challenges, it was not reasonable for him to be expected to absorb this particular detail in that particular context.71.1.4 The instruction to the claimant to stay away from pupils during lunchtimes was more explicit and clearer. However, it is important to look at the context in which that instruction was given and what it was reasonable for the claimant to have understood about it. When it was first communicated to the claimant, in 2013, some 10 years before his dismissal, this was in the context of telling him to keep away from pupils while physically at school. In the same letter, he was also told that he should not perform during school charity week. Thereafter, for a period of five years, the evidence suggests that he abided by that instruction and the instruction about withdrawing from charity week was no longer applied to him as he continued to participate thereafter. The advice in 2018 was that he should maintain a professional manner when talking to pupils at school. After that, his conduct was not specifically addressed by the respondent and it was his performance which formed the subject of appraisals and warnings. His contact with pupils thereafter was raised in the context of concerns about him performing his cleaning duties to a required standard and the problems regarding his interaction with pupils appeared to have been an issue because it distracted him from performing these. He was warned that if there were no improvements in his performance, formal capability procedures may be invoked. Indeed, the warning which was issued to him in May 2023 was under the respondent's Capability Procedure and the concerns which were raised were about his standards of performance, in other words he wasn't cleaning as diligently or thoroughly as he should have been. The instruction in the letter of 2013 was attached as an "Additional Note" with a reminder that if he failed in future to comply with those instructions, it may result in disciplinary proceedings. He was not clearly warned, as he would have been via a disciplinary process that it could result in his dismissal. Again, with the claimant's comprehension difficulties, clarity was important.71.1.5 It is also worth saying that the respondent formed its own view about the appropriateness of its communications with him and said that these were clear and explicit enough for him to be able to clearly understand. I agree that the instruction to stay away from pupils during lunchtime was clear, at that time, in that context. However, I do not agree that it was reasonable to regard all other communications with the claimant to have been clear and explicit, such that he could understand them. Sometimes the language used in these communications was complex and subjective.71.1.6 It is also important to bear in mind the context of what the claimant actually did in this particular incident. Although clearly inappropriate, it appeared to be an incident of a one-off nature, of short duration, where he accompanied three adult pupils in their car on their invitation. It was not premeditated and resulted in no complaints. It happened right at the beginning of a school academic year after a long school holiday break away from pupils. Again, this did not appear to be something which the respondent took into account when considering the claimant's cognitive functioning or behaviour.71.1.7 I am not satisfied that the respondent reasonably took the claimant's possible medical needs into account. When comparing this case with Hastingsbury I am aware that there are some significant differences between that case and this but although they should be recognised, there are sufficient similarities from which to draw helpful guidance on the relevant principles. In that case, no enquiry was made with occupational health unlike this case in which some enquiry had previously been made with occupational health, albeit about a different issue. In that case also, HR advice had been given that medical evidence should be obtained whereas no such advice was received in this case. There were also procedural differences. In that case, however, the claimant was a professional member of teaching staff. He had been employed for a very short period compared to the claimant in this case who had been employed for 16 years. In that case also, the disciplinary process resulted from formal, serious complaints made about sexual misconduct, matters which were never an issue in this case. Finally, in that case, the claimant specifically told the respondent, at all material stages that he had been medically assessed and there were no relevant issues. In this case, the respondent knew of one assessment that had been undertaken and one which was pending, for ADHD, which the claimant (or his mother on his behalf) did say was a relevant issue. I have in mind the conclusions of the ET/EAT about the material nature of medical evidence in determining whether, in all the circumstances, dismissal was an appropriate sanction and whether the misconduct "may have had a medical or psychological cause which could have been adequately treated". As previously stated, that is something which this respondent does not appear to have considered in its mitigation.71.1.8 In addition, the respondent formed its own view about what it was reasonable for the claimant to have understood, without any evidence at all about his medical, psychological or speech and language needs or communication differences, other than its own opinions. I do not consider this to have been reasonable. This is also relevant to the respondent's conclusions about the risk of the claimant repeating this behaviour or similar behaviour in the future. It is correct that the respondent would never have been able to communicate to the claimant each and every future scenario or incident which could arise and how the claimant should behave in such situations. However, again, this is a claimant who, as far as the respondent could reasonably have been aware at the time, had significant cognitive challenges and was awaiting an ADHD assessment and diagnosis. At the time of dismissal, it did not know whether, and how the claimant's condition could be treated with medication, therapy or other training or education programs, such that his understanding and behaviour may change. It did not appear to even consider this possibility.
Conclusion
[72]It is for these reasons, taking into account all of them cumulatively, that in the particular circumstances of this case, particularly given the claimant's length of service, the seriousness of the allegations made against him, the impact of those allegations on him and the specific mitigating factors, that I consider that dismissal was outside the band of reasonable responses[73]I find, therefore, that the claimant was unfairly dismissed by the respondent within section 98 of the Employment Rights Act 1996. Approved by: