Mrs C Moore v Governing Body of Trinity St Mary’s Church of England (Aided) Primary School: 3202059/2023
EMPLOYMENT TRIBUNALS
Case No 3202059/2023
Between
Mrs C MooreClaimantGoverning Body of Trinity St Mary’s Church of England (Aided) Primary SchoolRespondent
Before
Employment Judge Suzanne PalmerMs Jessica Smeaton (instructed by Counsel) for respondentDate 5 August 2024
JUDGMENT
[1]The Claimant’s complaint of Unfair Dismissal is not well-founded and is dismissed.
REASONS
[1]The Claimant was employed by the Respondent as a teacher from 12 April 2021 until her dismissal on 27 July 2023.[2]At the time of the events relevant to this claim, the Claimant was the teacher for a class of 30 Year 6 children. On 14 March 2023 a complaint was received by the Respondent from a parent of one of the children in the Claimant’s class, in relation to language allegedly used by the Claimant in the classroom. The complaint was also made to the police. In a nutshell, the complaint led to a disciplinary investigation, in the course of which other matters of concern to the Respondent were also identified. Those matters formed the basis of a disciplinary hearing which took place on 19 July 2023 and resulted in the summary dismissal of the Claimant on 27 July 2023. The Claimant subsequently appealed against dismissal. The appeal was heard on 19 October 2023 and was not upheld.[3]In her ET1 Claim Form, presented to the Tribunal on 7 November 2023, the Claimant alleges that she was unfairly dismissed. In a nutshell, she said that the allegations against her were malicious and untrue, that the procedure adopted by the Respondent was defective, and that the decision to dismiss her was unfair.[4]The Respondent subsequently sent a response form (ET3) to the Tribunal disputing the complaint of unfair dismissal and asserting that there was a fair dismissal by reason of misconduct. Claims and Issues[5]Following correspondence between the parties and the Tribunal, the hearing listed before me on 2 & 3 May 2024 (which was originally due to be completed in 2 days) was for consideration only of the issue of liability and for determination of the questions whether, if the dismissal was unfair: 5.1. there is a chance (if so, what chance) that the Claimant would have been fairly dismissed anyway (the “Polkey”) point, and/or 5.2. the Claimant caused or contributed to her dismissal by blameworthy conduct (if so, to what extent).[6]At the outset of the hearing, both parties confirmed that the following list of issues, accurately and comprehensively reflected the issues which I was to determine. I have only included those issues which relate to liability rather than to remedy: 6.1. Unfair dismissal 6.1.1. What was the (principal) reason for the Claimant’s dismissal? The Respondent asserts that it was a reason related to conduct, which is a potentially fair reason for dismissal under section 98(2) of the Employment Rights Act 1996. The Claimant does not dispute that the reason for dismissal related to conduct. 6.1.2. If the reason was (mis)conduct, did the Respondent act reasonably in all the circumstances in treating that reason as a sufficient reason to dismiss the Claimant? In particular: 6.1.2.1. Did the Respondent hold a genuine belief in the Claimant’s misconduct on reasonable grounds; 6.1.2.2. At the time it formed that belief, had the Respondent carried out as reasonable an investigation as was warranted in the circumstances? 6.1.2.3. Did the Respondent otherwise act in a procedurally fair manner? 6.1.2.4. Was the decision to dismiss the Claimant within the range of reasonable responses open to a reasonable employer in the circumstances? 6.1.3. If the Respondent did not adopt a fair procedure is there a chance that the Claimant would have been fairly dismissed in any event and when? If so what percentage chance is there of a fair dismissal having taken place in any event? 6.1.4. If the dismissal was unfair, did the Claimant contribute to her dismissal by blameworthy conduct? If so to what extent did she contribute to the dismissal? 6.2. In her closing submissions, the Claimant’s representative asserts that the dismissal was unfair for the following reasons: 6.2.1. There was insufficient investigation carried out at all levels which led to a lack of reasonable grounds for the panel to base their belief that the Claimant was guilty of gross misconduct; 6.2.2. The investigating officer was biased in her approach to the investigation throughout the process; 6.2.3. The investigating officer relied extensively on anonymous witness statements; 6.2.4. The witness statements taken in May 2023 were taken too late to be considered reliable; 6.2.5. The Claimant was not informed of all aspects of the allegations for which she was suspended. The physical assault aspects were unnecessarily held from her; 6.2.6. The allegation that the Claimant had negatively impacted on children’s wellbeing over a period of time was a pivotal allegation in the disciplinary process, and should not have been brought to a disciplinary panel; 6.2.7. The panel misled itself over the issue of safeguarding; 6.2.8. The appeal hearing procedure was flawed; 6.2.9. The role played by HR had too great an influence on the outcomes of the disciplinary procedure. 6.2.10. The Claimant also contends that none of the disciplinary allegations should have been upheld. Documents and evidence[7]A tribunal bundle was provided on the morning of the hearing. It consisted of 2,397 pages, or 5 full lever arch files. I explained to the parties that I considered this to be unhelpful and disproportionate to the nature and complexity of the issues in what was scheduled to be a 2-day unfair dismissal claim. I reminded the parties of their duty to assist the Tribunal in conducting cases in accordance with the overriding objective. I allowed the parties a period of time to provide me with an agreed list of core documents which they considered I needed to read before the hearing commenced. I informed them that I would read those core documents, together with the witness statements, prior to the commencement of the hearing. I informed both parties that I would not read any other document within the hearing bundle unless expressly taken to it by one of the parties in the course of cross-examination or closing submissions.[8]In accordance with what I had discussed with the parties, I read the core documents identified by them in their agreed reading list, together with the witness statements, prior to the start of the hearing, but reminded both representatives that I expected them to take me to any documents they sought to rely on.[9]I heard oral evidence under oath or affirmation from four witnesses, each of whom had provided a witness statement. One of these was the Claimant. The other three were witnesses for the Respondent: 9.1. Ms Louise Allen, Deputy Headteacher at the School, who carried out the disciplinary investigation; 9.2. Ms Maureen Ponton, a Governor of the School, who was a member of the disciplinary hearing panel; 9.3. Ms Maureen Graham, a Governor of the School, who was the chair of the appeal hearing panel.[10]In addition I read the witness statement of Ms Margaret Partridge, ViceChair of the Governors of the School, who chaired the disciplinary hearing panel.[11]Both representatives provided me with Opening Notes. I was provided with a chronology which was agreed and with an agreed reading list of core documents. I was also provided with a document providing some information as to the identity of the various witnesses who provided anonymous statements during the disciplinary investigation. Some of the information provided in the document consisted of names. In other cases an indication was provided as to whether the witnesses were children, parents or members of staff, and whether they belonged to the same family group.[12]Both representatives provided written closing submissions which they supplemented with oral submissions.[13]I apologise to both parties that it has taken some time since the conclusion of oral submissions on 29 May 2024 for me to provide my reserved judgment. This is due to considerable time pressures which prevented me from completing it sooner. Fact-finding
Background
[14]The Respondent operates a voluntary aided primary school (“the School”) in Chelmsford. It employs approximately 25 employees. The Claimant commenced employment with the Respondent on or around 12 April 2021, working as a classroom teacher. She was initially appointed on a fixed-term contract to cover a period of maternity leave with a Year 3 class. She was then appointed on a permanent contract for the start of the 2021-2022 academic year.[15]The issues with which this hearing is concerned arose during the 2022-2023 academic year. During that year, the Claimant was responsible for a class of 30 Year 6 children. The previous academic year, 2021-2022, she had been responsible for the same class when it was a Year 5 class.[16]As a classroom teacher, the Claimant’s key responsibilities were providing educational, social, moral, spiritual and cultural development for each child in the class allocated to her during the academic year. She also led the school in the curriculum areas of maths and science. Prior to the events to which this case relates, the Claimant had no disciplinary sanctions or management advice. The Head Teacher carried out a lesson observation on 8 December 2022 which resulted in the Claimant’s lesson being graded “good”, with some elements “outstanding. An informal review meeting on 24 February 2023 showed good progress against performance management objectives.[17]It seems that there had been some informal discussion with the Claimant in approximately July 2022, after a couple of parents of children in her class complained that children had been upset after she told them that racing dogs were shot. That earlier matter, however, appears to have been managed without any formal action. The Respondent’s policies[18]The Respondent had a Discipline and Dismissal Procedure. This set out the informal and formal processes to be followed in disciplinary proceedings, including the right to be made aware of the nature of the allegation and the evidence, the right to be accompanied by a union representatives at all stages of the formal procedure, and the right of appeal by way of a rehearing. It included the following provisions: 18.1. Amongst the “Roles and Responsibilities”: 18.1.1. Initial decisions, including dismissal, will normally be made by the headteacher, except where: The matter relates to them; They have been involved in a disciplinary investigation” 18.1.2. Where possible, the investigation stage of the disciplinary procedure will be operated by a manager other than the headteacher… 18.1.3. Where the headteacher has been directly involved in the investigation stage of a disciplinary matter… any formal hearing will take place before the Governing Board Disciplinary/Dismissal Committee; 18.1.4. All appeals will be heard by the Governing Board Disciplinary/Dismissal Appeals Committee. 18.2. Under the heading “Investigations”: 18.2.1. An investigating officer will be appointed, who’s [sic] role it is to act independently to gather facts and evidence from all sides to determine whether or not misconduct has occurred and if so, whether there is a disciplinary case to answer… 18.2.2. Employees will be informed of concerns or allegations as soon as possible and given an explanation of the likely course of action, unless there is an objection from Social Care or the Police; 18.2.3. The investigation may involve interviewing witnesses, the employee and other relevant parties and taking statements; 18.2.4. All reasonable efforts will be made to begin and complete the investigation without delay; 18.3. Under “Disciplinary/Dismissal hearings”: 18.3.1. Disciplinary/dismissal hearings will be carried out without undue delay; 18.3.2. The employee will be given at least seven working days’ notice… When given this notice, the employee will be: 18.3.2.1. Informed of the nature and details of the alleged misconduct/reason for proposed dismissal; 18.3.2.2. Informed of their right to be accompanied…; 18.3.2.3. Supplied with a copy of the evidence which is to be considered at the hearing, including any witness statements; 18.3.2.4. Given an indication of the possible penalty which could be imposed… 18.3.2.5. Informed who will conduct the hearing… 18.3.3. Not later than three working days before the hearing the employee: 18.3.3.1. Must supply the name and status of their companion/representative; 18.3.3.2. Must supply the names of any witnesses they intend to call… 18.3.3.3. May submit a written statement or other supporting written evidence if they wish… 18.3.4. At the hearing both parties may: 18.3.4.1. Present their case; 18.3.4.2. Be questioned on the statements made by them and on any evidence they have submitted; 18.3.4.3. Ask questions on any relevant aspect of the evidence presented by the other party. 18.3.5. Witnesses called may be questioned by both parties. 18.4. Under “Possible outcomes…” 18.4.1. All decisions made at disciplinary hearings will be based on the balance of probability…; 18.4.2. Where an allegation is proven, any sanction will satisfy the test of reasonableness in all the circumstances and will be proportionate. The following mitigating factors will be considered in determining an appropriate sanction: The employee’s disciplinary and general record, position and length of service; Any explanation or mitigation put forward by the employee; … Any other relevant factors. 18.4.3. Depending on the circumstances and following full consideration of relevant mitigating factors, disciplinary sanctions could take the following forms: … Dismissal with notice e.g. where conduct has failed to improve following previous warning(s) or where misconduct is sufficiently serious, dismissal may occur without prior warnings; Summary dismissal e.g. where an act of gross misconduct has been committed. 18.5. Under “Appeals”: 18.5.1. A disciplinary appeal hearing may be a full rehearing of the original case or a reconsideration of a particular matter where the appeal is on a specific and narrow point… The format for the appeal hearing will be determined, upon receipt of the letter of appeal and communicated to all parties. 18.5.1.1. Re-hearing: The procedure for a re-hearing will normally be as for the original hearing. New evidence, provided it is relevant to the original allegation(s), can be introduced by either party… 18.5.1.2. Appeal on points: The employee will present evidence to support their appeal point(s) and the original decision maker will respond to these as part of the appeal process. The Appeal Committee will then consider these submissions, together with the outcome letter and notes from the original hearing. New evidence will not normally be permitted at an appeal on points. 18.6. Under “Examples of Gross Misconduct”: 18.6.1. Gross Misconduct is defined as misconduct of such a serious nature that the employer is justified in no longer tolerating the employee’s continued presence at the place of work… 18.6.1.1. Harming pupils (as defined by the Children’s Act 1989, as amended);… 18.6.1.2. Other offences which seriously threaten the security of the pupils, members of the public, employees or property or which seriously damages public confidence in the employer;… 18.6.1.3. Serious breaches of the Code of Conduct; 18.6.1.4. Any other act of misconduct of a similar gravity.[19]Various other policy documents were contained in the hearing bundle. I was not taken to the provisions of any of those documents and therefore, in accordance with the approach I set out to the parties at the outset of the hearing, I have not considered them. The original complaint of 14 March 2023[20]On 14 March 2023 the School received a telephone complaint from a parent, referred to during this hearing as “Parent 1”. The complaint was that Parent 1’s child had reported that “today [the Claimant] told the class they were acting like a bunch of monkeys – [Parent 1] finds this a very racist comment. [The Claimant] has told the class that they are getting on her nerves so much she wants to shoot herself or them”. The complaint also said that the Claimant was “always negative” and that Parent 1’s child started to feel unwell on Sunday evenings as he was getting stressed about coming to school.[21]On 15 March 2023 the same parent raised these matters with the police who commenced an investigation of the matter as a potential hate crime.[22]On 16 March 2023 the police attended the School and met the Head Teacher to discuss the complaint.[23]On 17 March 2023 the police attended the School and met the Claimant to discuss the complaint. The same day the School received a written complaint from Parent 1, who expressed concern that the Claimant’s actions breached safeguarding policies and said that if the Claimant was attending a forthcoming school trip, Parent 1’s child would not be attending. The Claimant was placed on three days’ paid leave.[24]On 20 March 2023 the Police closed their investigation into the initial allegations. Having spoken to a teaching assistant in the Claimant’s class, they were satisfied that the Claimant had used the phrase “chattering monkeys” to the entire class and that this had been taken out of context and would not be considered a racial slur or hate crime. They considered that what remained was “an allegation of a conditional threat and inappropriate use of language towards children”, denied by the Claimant, which the School was best placed to investigate internally. The second complaint[25]On 20 March 2023 the Police attended the School to discuss allegations of physical abuse by the Claimant in respect of a second child [the son of Parent 2]. The allegation was that the Claimant had, according to the child who made the initial complaint, “put her hands around [another pupil’s] neck”. They informed Ms Allan that the allegation would be investigated as a potential assault.[26]On 21 March 2023 the Claimant was suspended on full pay with effect from the following day, pending an investigation into the allegations against her. The Respondent’s investigation[27]On 21 March 2023 Ms Allan conducted interviews with six children and three members of staff from the Claimant’s class. The children were interviewed as a group, and were described by Ms Allan as “a cross-selection of children from class 6”. One member of staff referred to the Claimant as “firm but the class need it”. The other described her as “Strict but fair”. Neither had heard anything. [Appendices J, K and L][28]The children’s responses included “Child 1: [The Claimant] can get cross with us. She doesn’t like it when we are noisy. She had asked us to do something but Pupil A was being silly and we were all being a bit loud. She shouted at us and called us a bunch of monkeys. Child 2: She is always saying things like that… Child 3: Yeah, she called us a bunch of monkeys and when we kept asking her questions she told us the next person who asks a question she is going to shoot them or herself. Child 4: I don’t think she meant it in that way, she says stuff like that all the time. Child 2: She’s said before about shooting us. It did make me anxious, it worried me, but I suppose she might have meant it as a joke. Child 1 Yeah, do you remember she upset child B and child C when she said that racing dogs are shot… We all got upset when she talked about the dogs. Some of us got a bit scared but we told our parents and Child B and C’s parents told the school and it got sorted out. Child 5: I think she said the next person who asks her a question she would kill, I can’t remember if she said she’d shoot us, but some of the things she says make me scared and anxious. Child 4: I think when [the Claimant] says stuff like that she is joking, but it is a bit scary. I get worried when she talks about shooting us, but then I told myself she didn’t mean it. Child 6: [The Claimant] is very strict. If we don’t behave or we are noisy she gets cross with us. She does shout at us”. [Appendix M][29]On 22 March 2023 the School was advised by a designated officer from the Local Authority’s safeguarding team that the School should not take any action pending the police investigation.[30]On 28 March 2023 Ms Allan and the Headteacher had a discussion with a Year 6 parent, at the parent’s request, to discuss the parent’s concerns, “including the residential trip and the children’s wellbeing” [Appendix N].[31]On 20 April 2023 the police informed the School that the police investigation could go no further as the allegations had been made more than 6 months after the alleged incident.[32]On 24 April 2023 the police confirmed by email that the allegation they had received on 20 March 2023 was that the Claimant “has on one occasion grabbed the back of the [child’s] neck, causing the victim pain. This was reported to the victim’s mother by the victim. On another occasion [the Claimant] has grabbed hold of the victim by the collar on both sides of the collar and shook the victim back and forth. When the victim said “stop” the [Claimant] said “Ah do you not like that, do you not like that?”. The victim asked the [Claimant] to stop, and she stopped shaking [the child] but continued to tell [the child] off about something. As a result of these actions, sometimes the victim is afraid of the suspect”. These incidents were reported as having occurred in August 2021 and July 2022 respectively.[33]On 24 April 2023 the Head Teacher telephoned the Claimant to advise her that she remained on suspension pending an internal investigation which would be carried out by Ms Allan.[34]Between 11 May and 8 June 2023 Ms Allan interviewed a number of children and parents and received written complaints from parents. The notes of her interviews and the written complaints were annexed to her investigation report.[35]On 11 May 2023 Ms Allan interviewed Parent 1 [Appendix O, Appendix P].[36]On 15 May 2023 Ms Allan interviewed Parent 2 [Appendix Q].[37]On 16 May 2023 Ms Allan interviewed three members of staff [Appendices R, S, T]. One said that there were times when they felt the Claimant had been “too harsh”. Another said that the class was challenging so the Claimant was strict, and that children did find her “a little bit scary”. The third said that she was “very strict but some children need that”. Two of them said that at times the Claimant would make comments to children along the lines set out in allegation 3 (of the disciplinary allegations brought against the Claimant.[38]On 18 May 2023 the Claimant was invited to attend an investigation meeting with Ms Allan on 7 June 2023. She was advised of 7 allegations against her. She was advised of her right to be accompanied at the meeting.[39]On 19 May 2023 Ms Allan interviewed six children individually to discuss “any concerns in the classroom”. These children had been identified “as either their parents had raised concerns or another child had brought them into the discussion during my conversation with them”. [Appendices U, V, W, X, Y, Z]. Several of them commented on feeling scared of the Claimant and on her getting cross and/or shouting at the children. Three referred to an occasion when she grabbed a child by the collar.[40]On 19 May 2023 Ms Allan held a further interview with one of the members of staff she had already interviewed. [Appendix AA][41]On 19 May 2023 Ms Allan interviewed Parent 3, who had previously raised “initial concerns around terminology used in the classroom and wellbeing concerns”. This person was referred to as Parent 3 [Appendices G and AB]. However it appears from the documents before me to be the same person as Parent 1 [Appendix H].[42]On 22 May 2023 Ms Allan interviewed Parent 4, whose child had been mentioned by another parent as being involved in an incident. Parent 4 had sent an email to the Headteacher in July 2022 on discovering that the Claimant would be the teacher for Year 6. [Appendices AC and AD][43]On 25 May 2023 Ms Allan interviewed Parent 5, who had previously emailed the Headteacher in early March 2023 expressing concern that the Claimant’s teaching style was having a detrimental impact on her child’s wellbeing. [Appendices AE and AF].[44]On 26 May 2023 Ms Allan interviewed a child (Pupil 7) who had been referred to in another parent’s interview. [Appendix AG][45]On 26 May 2023 Ms Allan interviewed Parent 6, who had previously raised concerns with the Headteacher in July 2022. [Appendices AH, AI].[46]On 7 June 2023 Ms Allan interviewed the Claimant as part of her investigation. The Claimant denied all the allegations against her. She accepted having used words to the effect of “you are like a bunch of chattering monkeys, quieten down and get on with your work”.[47]On 8 June 2023 Ms Allan completed her investigation report. She recommended that a disciplinary hearing be convened to consider 8 allegations against the Claimant. Appendices A to AZ were attached to her report. The allegations were: 47.1. That on Tuesday 14 March 2023 the Claimant told the children in Year 6 that they were “acting like a bunch of monkeys”, resulting in parental complaints; 47.2. That on Tuesday 14 March 2023 the Claimant told the children in Year 6 that she would “shoot anyone who asked any more questions”, resulting in parental complaints; 47.3. That over a period of time, the Claimant had negatively impacted on children’s wellbeing. “This includes your personal situation and mood transferring to the classroom, implementing unjust punishments, inconsistency of how you respond to children and children terrified of what might happen which has caused anxiety in children. Children were being relieved when other staff were covering the class and they felt safer in approaching Teaching Assistants rather than yourself. Examples of this include “I’ve been putting up with my own children, I’m not putting up with your fussing” and when children comment they are tired, you respond with “so am I, so you just need to get on with it” and “my puppy has kept me up all night, I’m tired, you just need to do what you’ve been told to do”. This has resulted in parental complaints”; 47.4. That on one occasion, while teaching Year 5, the Claimant grabbed the back of a child’s neck and squeezed it, causing the child pain; 47.5. That on another occasion, during the autumn term whilst she was teaching Year 6, the Claimant grabbed hold of a child by the collar, on both sides of the collar, and shook the child back and forth. When the child said “stop” she said “ah do you not like that, do you not like that?”. The child asked her to stop, and she stopped. 47.6. That the Claimant had had a detrimental effect on the organisation of her current year group regarding examinations and residential. Alternative arrangements had to be arranged to cover the residential trip due to parental concerns regarding the safety and wellbeing of children and the relief and excitement children expressed when they were advised of the new arrangements. Parental concerns were raised regarding children anxious to come to school and this impacting on their progress and preparation for the upcoming SATs; 47.7. That the Claimant had brought the School into disrepute by tarnishing the reputation of the School. Feedback received from parents regarding her teaching style and the negative impact this has on their children had resulted in parents discussing with Senior Leadership Team members potentially removing their children from the School; 47.8. That the Claimant had been in contact with employees of the School during her period of suspension, in breach of her suspension letter.[48]On 14 June 2023 Ms Allan interviewed four members of staff in relation to employees who had heard or been overheard engaged in discussions about contact with the Claimant. [Appendices AJ, AK, AL, AM].[49]On 19 June 2023 Ms Allan interviewed three more members of staff who had raised concerns about receiving contact from the Claimant [Appendices AN, AP, AQ, AR.[50]On 21 June 2023 Ms Allan emailed the Claimant to advise her that she had been made aware of a further allegation, since their earlier discussion, regarding contact with other employees. She forwarded an email sent by the Headteacher to a number of employees [Appendix AO]. The disciplinary process followed by the Respondent[51]The Claimant was invited to attend a disciplinary hearing. At her request, the date for the hearing was changed from 12 to 19 July 2023. The letter inviting the Claimant to the hearing advised her of the allegations against her, the potential outcome of the hearing, and of her right to be accompanied by a union representative or workplace colleague. She was also advised that she could provide a written statement.[52]Prior to the hearing, the Claimant provided a written statement with appendices, amounting to around 44 pages of documents. The Claimant’s documents included her response to the allegations, a document setting out alleged factual inaccuracies and inconsistencies in the Respondent’s evidence, alleged procedural flaws in the process (primarily delay and the widening of the original allegations to include allegations about her teaching style), and evidence she wanted to rely on. Her evidence included two lesson observations (conducted by the head teacher in June and December 2022), two performance management reviews, and a statement from the SEN co-ordinator at the school, commenting positively on the Claimant’s teaching style, her relationship with her pupils and the atmosphere in her class. The SEN co-ordinator commented that the Claimant’s class was acknowledged by staff at the school to be a “particularly tricky class”. The Claimant also included student feedback forms.[53]The disciplinary hearing panel was chaired by Ms Partridge. There were two other panel members, one of which was Ms Ponton, who was a governor of the Respondent. The third member was a head teacher at another school. The panel had an HR advisor. The Claimant was assisted by a Trade Union representative. Ms Allan presented the findings of her investigation, and was assisted by a separate HR advisor. A note-taker was present.[54]No witness evidence was heard during the disciplinary hearing. The panel had a pack which included records of the various interviews conducted by Ms Allan. The identities of the interviewees were largely anonymised.[55]In summary, the Claimant’s position in respect of each of the allegations at the time of the disciplinary hearing was this: 55.1. Allegation 1 (the “chattering monkeys” comment). The Claimant says that the actual words used were “You are like a bunch of chattering monkeys. Quieten down and get on with your work”. She says that the phrase was a gentle reprimand to the whole class and was an acceptable response to misbehaviour, in that it was a verbal reprimand and reminder of the expectations of behaviour. 55.2. Allegation 2 (threatening to shoot anyone who asked any more questions, or shoot herself). The Claimant denies any threat, but says that she does make “overly dramatic statements” to children in a joking way to put them at ease. She thinks the children enjoy those comments. She says that at around the time the allegations were first made against her in March 2023, she had had conversations with the child of Parent 1 about needing to speak to his mother. She thinks that the child made his allegations as a way of “getting in first” with his mother. 55.3. Allegation 3 (negative impact on well-being over a period of time). The Claimant denies this, pointing to her positive lesson observations and performance management reviews. She accepts that she is strict about matters such as homework, and sets high standards, but considers this reasonable and denies arbitrary sanctions. She says that she is happy and positive, but will sometimes draw on her own experience to show empathy, for example saying to a child that she was tired too, but that they had to carry on with their tasks. She considers that part of her role is to help children build resilience, and strategies for completing work, in advance of starting secondary school. She considers it unfair that the first complaints about her teaching style are at a disciplinary hearing. 55.4. Allegations 4 and 5 (grabbing a child by the neck or collar). The Claimant denies any physical assault. She says that in Year 5, the alleged victim was on a behaviour plan which was in part for violent and aggressive behaviour to other children. She says that in conversations with him about his behaviour, she would use phrases such as “How would you feel if someone did that to you?” to encourage the child to have empathy. She notes that the complaints were not raised at the time of the alleged incidents and considers it unlikely to be a coincidence that the complaints were made soon after the first police investigation, when (according to the Claimant) gossip and rumours were rife on parents’ social media groups. 55.5. Allegation 6 (detrimental impact on the organisation of current year group regarding examinations and residential). The Claimant points out that she had no control over the fact or duration of her suspension, and that if that has had a detrimental impact, that is not as a result of her actions in class. 55.6. Allegation 7 (bringing the school into disrepute). The Claimant denies this. She says that she has not been made aware of parents making complaints about her or giving negative feedback, and has had positive feedback at parents’ evenings. She says that she has not been provided with advice or mentoring in relation to her teaching style. She says that her lengthy suspension has fuelled gossip and rumours amongst parents on social media. She considers the allegations against her malicious. 55.7. Allegation 8 (contact with employees during suspension): this allegation was not upheld by the Respondent so I do not consider it necessary to set out the Claimant’s position.[56]The disciplinary hearing lasted an entire day and the members of the panel then spent approximately three and a half hours deliberating before reaching their conclusions. They found that allegations 1 to 7 were substantiated. The conclusions in relation to each of those allegations, set out in the witness statements of Ms Partridge and Ms Ponson, can be summarised thus: 56.1. Allegation 1 (the “chattering monkeys” comment). The panel concluded that the word “monkey” had been used in reference to the Claimant’s students. It had evidence in relation to racial diversity and vulnerable children in the class. “Monkey” has been used in relation to people of colour as a slur, and “the pupil and parent perception was that the statement was racist”. 56.2. Allegation 2 (threatening to shoot anyone who asked any more questions, or shoot herself). The panel preferred the evidence in the pupils’ witness statements, noting that these were corroborative and that the remarks had been reported to parents. The panel considered that “even if this language had been reported as a result of a child being concerned he was going to get in trouble, the language itself was very inappropriate”. The panel considered that there was evidence that the language had caused stress to some students, even those who understood that the teacher was joking. 56.3. Allegation 3 (negative impact on well-being over a period of time). The panel noted a “wide range of evidence” reporting concerns, preferred that evidence, and considered that the concerns were caused by the Claimant. It was concerned about the use of inappropriate threatening language which she claimed was humorous, and the stress and anxiety reported by children in the class to their parents. 56.4. Allegations 4 and 5 (grabbing a child by the neck or collar). The panel noted that multiple students had set out the allegation. It considered the Claimant’s account but believed the students’ accounts. It found that it “had no evidence that this was a false memory, or a fabrication”. It upheld the allegations. 56.5. Allegation 6 (detrimental impact on the organisation of current year group regarding examinations and residential). The panel found it “clear from the evidence” that the Claimant had had the alleged impact, noting that there were reports from both parents and students of anxiety at school impacting on progress. 56.6. Allegation 7 (bringing the school into disrepute). The panel again noted the number of complaints and concerns raised by parents and reported by pupils, which it considered had the potential to bring the school into disrepute.[57]The panel considered the Claimant’s explanation that the complaints were the result of co-ordination or ganging-up against her, but rejected that explanation. It considered that the Claimant had not demonstrated understanding that her actions were inappropriate. It concluded that allegations 1 to 7 amounted to gross misconduct: it found that “the allegations were very serious and included aggressive physical contact with a student”. It took into account the Claimant’s clear disciplinary record but concluded that students were subjected to “unsafe behaviour” from someone whose role is to set a positive example and establish a safe and happy learning environment. It considered that it had no option but to dismiss.[58]Ms Partridge, as Chair of the panel, says in her statement that it was her view, and the panel’s view, that each allegation was capable of constituting gross misconduct, and that the allegations raised safeguarding issues.[59]On 25 July Ms Partridge wrote to the Claimant confirming the panel’s findings and its decision to dismiss for gross misconduct. The Claimant was advised of her right to appeal.[60]The Claimant exercised her right to appeal. In her letter of appeal, she set out a number of grounds, some of which she said related to “the whole process”, and others to specific allegations. The grounds were: 60.1. The investigation and the disciplinary processes were not always conducted in accordance with the policy. 60.2. The investigation and the disciplinary processes were bias [sic] in favour of the employer. 60.3. The evidence does not support a balance of probabilities outcome. 60.4. Some important evidence was not considered that may have influenced the outcome. 60.5. The panel accepted unreliable information and testimony from some witnesses. 60.6. The panel ignored some factual inaccuracies. 60.7. The outcome was inconsistent with the allegations and unduly harsh.[61]The appeal hearing was scheduled before a panel chaired by Ms Maureen Graham, who is a Governor of the Respondent. There were two other governors on the panel, which was supported by an HR Consultant and a note-taker. Ms Allan once again presented the management case.[62]In the letter inviting the Claimant to an appeal hearing, she was advised that, given the nature of her appeal, it would take the form of a re-hearing. She was advised that she had the right to call witnesses and to provide a written statement.[63]The Claimant attended (on 19 October 2023, a date rearranged at her request) with a Trade Union representative. Each of the allegations in turn was discussed at the appeal hearing, followed by discussion of the Claimant’s more general points. The Claimant provided a document which included 20 appendices, as well as references.[64]The appeal panel reconvened on a subsequent day to reach its decision. The appeal was not upheld. A letter was sent to the Claimant confirming the outcome, although that letter deals only with the specific grounds set out in the Claimant’s original appeal. I accept Ms Graham’s evidence that this was because it was based on an incorrect template provided by the HR consultant, but that the panel did in fact discuss each of the individual allegations, reviewing all the evidence in relation to each and upholding each on the balance of probabilities.[65]The appeal panel did not consider that there was evidence to support the contention that the allegations were malicious. It noted that they came from “a cross-section of parents and children”. It was concerned that “so many children were anxious, unhappy and scared to come into school and the detrimental impact it had on their wellbeing. It considered that the allegations were serious and concerned the safeguarding of children, and concluded that a lesser sanction than dismissal would not be appropriate.
Law
[66]The right not to be unfairly dismissed is set out at Section 94(1) Employment Rights Act 1996 (ERA).[67]Fairness is dealt with in Section 98 ERA, which provides: “98 General(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –a. The reason (or, if more than one, the principal reason) for the dismissal, and;b. That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it – a. … b. Relates to the conduct of the employee, …(3) …(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – a. 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 b. Shall be determined in accordance with equity and the substantial merits of the case. …”[68]In so far as Section 98(1) & (2) are concerned, it is for the employer to show the principal reason for dismissal, and that it was a potentially fair reason. A reason is “a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee” – Abernethy v Mott, Hay & Anderson [1974] ICR 323, CA. I am mindful that the burden is not a heavy one. It will be sufficient that the person making the decision on behalf of the employer genuinely believed, at the time the decision was taken, that the employee was guilty of misconduct.[69]I remind myself that when I come to consider the issue of reasonableness under Section 98(4), the burden of proof is neutral. I am required to assess reasonableness in the context of the particular reason established by the employer, and in the light of good industrial relations practice. It is the employer’s decision which is the focus of my assessment, rather than the impact of the decision on the employee. I am required to have regard to all the circumstances of the case, including the matters set out in Section 98(4) (the size and resources of the employer, equity and the substantial merits of the case). In considering the reasonableness of the employer’s belief, I remind myself that an honest belief held on reasonable grounds, even if it is wrong, will be enough: there is no requirement to prove that the misconduct occurred.[70]The case law is clear that I must not substitute my own views for those of the employer: it is not for me to consider how I would have responded in the same circumstances. I am required to consider whether the respondent’s decision fell within the band or range of reasonable responses which would be open to a reasonable employer in the circumstances (Iceland Frozen Foods Ltd v Jones [1983] ICR 17), based on the facts or beliefs known to the dismissing officer at the time the decision is taken. I do, however, remind myself that although a dismissal for gross misconduct will often fall within the range of reasonable responses, this is not invariably so: in a small number of cases, there may be mitigating factors (such as length of service, previous unblemished record, consequences of dismissal) which render a dismissal unfair, notwithstanding the existence of gross misconduct (BritoBabapulle v Ealing Hospital NHS Trust [2013] IRLR 854, EAT, East of England Ambulance Service NHS Trust v Sanders EAT/0319/15).[71]I remind myself that I should not conflate the issue of unfair dismissal with that of wrongful dismissal. Once a decision to dismiss has been reached on reasonable grounds, it is for the employer to decide whether or not to dismiss with notice or summarily. If a dismissal is fair, then it is fair irrespective of whether or not it should have been on notice (BSC Sports and Social Club v Morgan [1987] IRLR 391, EAT).[72]I am required to have regard to the three-stage test set out in British Home Stores Ltd v Burchell [1980] ICR 303, EAT. I remind myself that the range of reasonable responses test applies to all three stages of this test (J Sainsbury plc v Hitt [2003] ICR 111, CA). The burden of proof is on the employer in relation to the first stage, and neutral in relation to the other two. I am required to consider whether the employer: 72.1. Believed the employee guilty of the misconduct; 72.2. Had in mind reasonable grounds upon which to sustain that belief; 72.3. At the stage at which the belief was formed on those grounds, had carried out as much investigation into the matter as was reasonable in the circumstances.[73]If I find that the answer is “yes” to all three of those questions, then I am required to go on to consider whether dismissal was a reasonable sanction open to a reasonable employer in the circumstances. If so, the dismissal will be fair.[74]I was also directed by Mrs Smeaton to the cases of Carlin v St Cuthbert’s Co-operative Association Ltd [1974] IRLR 188 and Tayeh v Barchester Healthcare Ltd [2013] ICR D23, CA. These say that if an employer regards a number of charges within a set of disciplinary proceedings as being standalone, it may be reasonable to dismiss for one of the charges even if it is not reasonable to dismiss for another. That is to be contrasted where the charges are regarded by the employer as being cumulative.
Conclusions
[75]I remind myself of the list of issues identified at the outset of the hearing. I will start by giving an overview in relation to the allegations as a whole. I will then move on to consider any specific issues of relevance to each of the seven separate allegations which were brought against the Claimant. Findings in respect of the reason for dismissal[76]My findings of fact in respect of the investigation and disciplinary process which was followed are set out in detail above.[77]I find that the reason for the dismissal was the genuine belief by the members of the disciplinary panel that the seven allegations against the Claimant were substantiated on the balance of probabilities, and amounted to misconduct.[78]I accept the evidence of the Respondent’s witnesses that the panel considered the alleged behaviour to be inappropriate, to raise safeguarding concerns, and to be a serious departure from required standards of conduct. I note that the evidence from the chair of the disciplinary panel (Ms Partridge) was only available to me in written form and I have carefully considered what weight I can give to it in circumstances where it has not been tested in cross-examination. However, it is corroborated by evidence from Ms Ponton, which was given orally, and is consistent with the notes of the disciplinary hearing and the documentation created at the time, so I do consider that it is sufficiently reliable that I can take it into account in establishing what was in the mind of the dismissing panel.[79]I find that the appeal panel, chaired by Ms Graham, also had a genuine belief that the Claimant had done the things alleged in the seven allegations against her, and that this amounted to misconduct and a breach of the standards of conduct required of her, raising safeguarding issues.[80]I therefore find that the reason for the dismissal was misconduct. Whether the Respondent had reasonable grounds for its belief in that misconduct.[81]I consider that that belief was held on reasonable grounds. There was evidence before the dismissal panel of the original complaints made by Parent 1 and Child 1 to the school and to the police. Within the course of the investigation there was then evidence of further concerns raised by a number of parents and children. 14 of the 30 children in the Claimant’s class were interviewed and the concerns were repeated by a number of them. Viewed objectively, the evidence which was gathered in this case was capable of substantiating a conclusion that there was misconduct, and I accept the evidence of Mrs Ponton, as well as the written evidence, that the dismissing panel believed that the allegations had occurred based on that evidence.[82]I did give careful consideration as to whether it would have been appropriate in the circumstances to characterise some of the allegations (particularly allegations 1 to 3 and 6) as issues of teaching style or capability rather than misconduct, and therefore as amenable to performance management rather than disciplinary action. This was a point raised with Mrs Ponton in crossexamination. She acknowledged that some aspects of the allegations could potentially have been the subject of performance management. However, she considered that the matters related to the Claimant’s conduct, and said that by the time the allegations were made, there were concerns about safeguarding which, in effect, made matters too serious to proceed by way of performance management. I am mindful that it is not for me to substitute my own view for that of the Respondent. I consider that in the circumstances of this case it was within the range of reasonable responses open to a reasonable employer to proceed with the allegations as allegations of misconduct rather than capability or performance. There is often a fine line between the two, and I cannot say that it was unreasonable to characterise them as conduct in the circumstances of this case. Whether, at the time it formed that belief, the Respondent had carried out as reasonable an investigation as was warranted in the circumstances[83]The Claimant has levelled a number of criticisms at the investigation which was carried out. I have considered those criticisms. I have also reminded myself of the relevant ACAS Code of Practice and guidance. I have borne in mind that, as with any other aspect of the Respondent’s dismissal, I must not substitute my own view of what should have happened, and am concerned only with whether the investigation was within the range of reasonable responses available to a reasonable employer in the circumstances. I have also borne in mind that I have to consider the investigation taken as a whole.[84]I have borne in mind that this was the first disciplinary investigation of its kind which Ms Allan had undertaken. However she had access to Human Resources advice to guide and assist her in the process.[85]The Claimant complains that there was no balance to the interviews: “Significant people were not interviewed that could have supplied a different perspective such as the headteacher and the SENCO. There is no evidence that [Ms Allan] sought to interview any parents, pupils or professionals who might have a positive view of [the Claimant]. The teaching assistants who were in class with [the Claimant] for all but 25 minutes per day were only asked questions on a narrow spectrum of the allegations against [the Claimant]”.[86]I do have a degree of sympathy with this criticism. It does appear that Ms Allan was looking more for evidence which would prove the Claimant’s guilt than for evidence which might exculpate or exonerate her. By way of example, Ms Allan does not appear to have gone back to witnesses to explore matters of context, or to put discrepancies or inconsistencies to them for them to comment, which might be seen as more important given that many of the witnesses’ statements were anonymised. Neither did she ask the Claimant whether there were any people who she considered should be interviewed.[87]Ms Allan was asked about this in cross-examination. She said that on HR advice, she did not interview anyone who was not directly involved with the alleged incidents. This included the head. However this does not seem to sit entirely comfortably with the fact that the investigation clearly widened to more general allegations about the Claimant’s conduct in the classroom, about which one might think that fellow professionals might be able to give relevant general evidence. When this was put to Ms Allan she said that it was a confidential investigation so she did not want to interview a wider pool of witnesses, and had confined herself to people who were in the classroom with Ms Allen “day in, day out”. That does not seem to me to be an entirely satisfactory explanation for not seeking to obtain a broader, more objective picture of the Claimant’s performance and the atmosphere in her classroom.[88]Ms Allan said that she did not ask the Claimant about people she wanted to be interviewed because she assumed that if the Claimant wanted this, she would request it via her Union. This seems a surprising response given that criticism was levelled at the Claimant (and an additional disciplinary allegation added) when the Claimant sought to contact professional colleagues who she hoped might be witnesses for her. Ms Allan also said that she regarded it as her role simply to collect evidence which was brought to her, and present it at the hearing. Again, this seems to suggest a reluctance to carry out a proactive and objective evidence-gathering role, with the potential to impact on the fairness of the proceedings for the Claimant.[89]This aspect of the investigation was somewhat compounded by an aspect of the disciplinary hearing. Mrs Ponton said on a number of occasions, when she was asked whether the disciplinary panel had considered seeking additional information on certain issues, that her view (and presumably that of the panel for whom Mrs Ponton was the only witness to give oral evidence) was that it was not part of the function of the disciplinary panel to look for or ask for evidence. She considered that her function was simply to reach a decision on the basis of the evidence which had been presented to them.[90]As I have said, these aspects of the investigation did cause me concern. However, I have to consider whether the investigation, taken as a whole, was sufficient. I note that effectively the points I have mentioned were either cured or appear to have made no real difference to the proceedings. I say this because: 90.1. The Claimant did in fact produce her own evidence, in the form of written documents generated by the head and the SENCO, to present the disciplinary panel and the appeal panel with a more positive view of her performance. I accept the evidence of the Respondent’s witnesses that this evidence was taken into account at both hearings; 90.2. The evidence gathered from the three teaching assistants who worked alongside the Claimant appears to provide a reasonably balanced view, in that it comments on some of the positives in the classroom as well as areas of concern. 90.3. Given that approximately half the students in the Claimant’s class were interviewed by Ms Allan, a reasonable employer might well consider that this represented a sufficient cross-section of pupils that it would be disproportionate to interview further. 90.4. Seeking speculative interviews with other parents and pupils, in addition to being disproportionate, would appear likely to increase any gossip and rumour in exchange for little gain. Ms Allan’s evidence was that she was concerned about confidentiality and that this was one reason for not interviewing more widely. It was never alleged that all the Claimant’s pupils were unhappy, simply that a number of them were. There was internally-gathered evidence (for example from teaching assistants) demonstrating that some children were content in the class. 90.5. I also note that during this tribunal hearing, when the Claimant was asked who she says should have been, but was not, interviewed, she did not identify anybody other than the SENCO, whose statement was in the disciplinary and appeal hearing pack in any event.[91]The Claimant has also alleged that Ms Allan was biased in her approach to the investigation. In so far as a potential lack of balanced, objective evidence-gathering is concerned, this allegation appears to add nothing to the discussion above. Bearing in mind that Ms Allan was an investigator rather than a decision-maker, I do not consider that I need to address this point further.[92]The Claimant has also suggested that Ms Allan influenced or sought to influence the outcome of the disciplinary and appeal hearings. I do not consider that it falls outside the range of reasonable responses for Ms Allan to have been given responsibility for presenting the case on behalf of management at both hearings: there is provision for this within the Respondent’s policy and it is not uncommon in workplace disciplinary processes. I do not consider that there is evidence to suggest that Ms Allan over-stepped her role. The evidence of all the Respondent’s witnesses who were decision-makers at either the disciplinary or the appeal stage is that they reached their own conclusions on the material presented to them. I accept that evidence on the balance of probabilities and do not consider that they were influenced by Ms Allan.[93]The Claimant alleges that the witness statements gathered in May 2023 were “taken too late to be considered reliable”. Essentially, she says that by May 2023, there were widespread rumours amongst the staff and parents at the school as to the reason for her ongoing suspension. The Claimant considers that the children’s memories are likely to have been influenced by rumour and gossip.[94]In this regard, I note that the content of the interviews with children in May 2023 appears to be broadly similar to the tone and content of the interviews in March 2023, in that there is general reference to some children being frightened of the Claimant because she was strict and would sometimes shout at them. The difference is that in May, three of the six children interviewed specifically refer to the alleged incident(s) of the Claimant grabbing a child by the neck or collar.[95]It seems to me that any attempt to explain that difference would be pure speculation. What is clear from the minutes of both the disciplinary and appeal hearings, however, is that the Claimant challenged the evidence on this basis, and raised her concern that the children may have been influenced by the rumours which were circulated. It was taken into account by the panels reaching the decision at both hearings. Mrs Ponson explained in her evidence that she believed what the children said. She said that in her experience, while children may mis-remember points of detail, they tend to remember the core events relating to incidents which have shocked them. Her conclusion, or rather the conclusion of the panel of which she was a member, appears to be within a range of reasonable responses.[96]Thus, although there are aspects of the investigation which troubled me for reasons I have set out above, my conclusion is that, viewed as a whole in all the circumstances of the case, I consider that it fell within the reasonable range, and was sufficient. Whether the Respondent acted in a procedurally fair manner.[97]I next turn to the wider issue of procedural fairness. I remind myself that, again, I have to look at the disciplinary procedure taken as a whole, and to consider whether it fell within the range of what would be reasonable in all the circumstances.[98]Again, the Claimant has levelled a number of criticisms in this regard which I shall consider.[99]The Claimant says that the process took too long, and is particularly critical of the delay between March and April 2023, which she considers was unnecessary.[100]I do not consider that the delay was unreasonable in this case. Ms Allan explained that the head received advice from the Local Authority Designated Officer on 21 March that the Respondent should await the conclusion of the police investigation before continuing with its own investigation. Ms Allan, who by that stage had started to interview people, therefore paused her investigation. The police did not confirm that they had concluded their investigations until 20 April, and Ms Allan immediately resumed her task. Whilst the overall duration of the investigation was longer than the recommended time within the Respondent’s policies, I do not consider that the delay can be characterised as falling outside the range of reasonable responses in the circumstances, and I do not consider that there is evidence that it caused any significant unfairness to the Claimant.[101]The Claimant complains that she was not informed at the time of her suspension on 21 March 2023 that she was also under investigation for the second police allegation (of physical assault). The Respondent’s answer to that is that the police told the head to leave it to them to tell the Claimant about the second allegation against her. I do not consider that it was unreasonable to follow the instruction from the police in this regard. There is no evidence that this caused any unfairness to the Claimant: by the time she was invited to an investigation interview, she was made aware of the full allegations against her.[102]The Claimant complains that HR had “too great an influence on the outcomes of the disciplinary procedure”. She alleges that HR strayed beyond providing advice on law and procedure into issues of culpability at the disciplinary and appeal hearing, and that HR questioned and commented inappropriately on the Claimant’s evidence at the disciplinary hearing.[103]I do not consider that the role played by HR in this case fell outside a reasonable procedure. At the disciplinary hearing there were two HR advisers present, one to advise Ms Allan in her role presenting the case on behalf of management, and the other to advise the panel. That appears to be an appropriate separation of function. It is right to say that the HR adviser to Ms Allan appears to have asked questions, akin to cross-examination, of the Claimant at various points in her evidence, and to have commented on some aspects of her evidence. A few questions by the other HR adviser are also recorded. However I do not consider it unreasonable for the HR advisors to seek to assist with the clarification of the evidence to a degree, particularly where there is a relatively inexperienced investigating officer presenting the management case. There is no evidence that the HR advisers sought to influence the panel’s decision taken in private following the recorded part of the hearing. I accept the evidence from the Respondent’s witnesses that they alone made the decision at both the disciplinary and appeal stage. I see no evidence that any unfairness was caused to the Claimant in terms of being able to advance her case, with the assistance of her union representatives, at both meetings. I do not consider that the involvement of HR amounted to unfairness in the procedure adopted by the Respondent.[104]The Claimant complains that the appeal procedure adopted by the Respondent was flawed and unfair. As I have set out above under my findings of fact, the Respondent’s policies provided for two alternative types of appeal, a rehearing and a hearing on specific points. The Claimant raised a number of points in her appeal and the hearing was scheduled as a rehearing. As I have already said, I accept the evidence of the Respondent’s witnesses that the appeal was conducted as a rehearing. The panel considered all the allegations, with the case presented, as at the disciplinary hearing, by Ms Allan. The appeal panel discussed and reached a decision about each of the original charges, as well as considering the general points raised by the Claimant.[105]I fully accept that the Claimant would, with good reason, have been confused by the appeal outcome letter, which reads as though it is considering an appeal on specific grounds, and does not discuss the panel’s conclusions in relation to each allegation. However, I accept the Respondent’s evidence that this was as a result of an erroneous draft prepared by the Respondent’s HR department and that the outcome letter did not properly reflect what took place at the hearing (as evidenced by the minutes of the hearing) or during the appeal panel’s deliberations (as evidenced by the witness statement of Ms Graham).[106]I therefore accept that the appeal was a rehearing and was not flawed. In her closing submissions, the Claimant’s representative says that “As it was a re-hearing CM did not bring up many appeal points that she would have brought up in an appeal on points”. I do not consider that the evidence bears this out. It is clear that the Claimant had the opportunity to, and did, bring up not only her response to the original allegations but also general points about the original hearing, and that all of these points were explored at the hearing and considered by the appeal panel. I also note that in her evidence, the Claimant did not appear to identify any matters which she now says she was unable to raise at the appeal hearing. I consider that the appeal process fell within the range of reasonable responses and was fair in the circumstances.[107]The Claimant complains that the Respondent relied extensively on anonymous witness statements. I do consider that she has some cause for criticism in this regard. However on balance I consider that this did not impact significantly on the fairness of the proceedings overall, for the reasons set out below.[108]Ms Allan gathered a number of witness statements in the course of her investigation. Some of these were from staff colleagues (primarily teaching assistants who worked alongside the Claimant). Some were from pupils, and some were from the parents of pupils. I accept that in the sensitive context of an investigation involving parents and pupils, a reasonable employer might conclude that it was inappropriate to identify the people providing statements because of the potential, were the Claimant to return to teaching the class after the investigation, for it to impact on her relationship with the children concerned. I do not consider that the same could be said of staff colleagues, none of whom appears to have reported feeling any apprehension or fear of reprisal when making their statements.[109]My understanding is that by the time of the disciplinary hearing, and certainly by the time of the appeal hearing, an explanation had been provided in relation to who some of the makers of anonymised statements were, and where statements remain anonymised, information was provided to show where more than one statement had been made by the same individual. I was provided with an agreed document which I understood would make it clear to me who all the anonymised statements were from, and for which statements the Claimant had been made aware of the identities of the makers by the time of, respectively, the disciplinary and the appeal hearing. The document which I have does not do that clearly, and so it is unclear to me which identities the Claimant had become aware of by the time of the disciplinary hearing, which by the appeal hearing, and which she has become aware of subsequently.[110]I have considered what potential unfairness might arise to the Claimant as a result of this. The potential unfairness, it seems to me, is in not knowing who the individual is in order to be able to defend an allegation by saying, for example, “this individual had reason to fabricate allegations against me for this reason”.[111]However it seems to me that the Claimant was able to do this based on the information she had. She was aware of the identity of the child (and that child’s parent) who made both the original allegation in relation to the “chattering monkeys” comment and the second police allegation in relation to assault. She was aware of the identity of the (different) child who was the victim of the alleged assault. It appears that she may have known the identities of at least some of the other children who spoke, at least in general terms, about her manner in the classroom. She was able to raise the basis on which she alleged that the testimony of these people was unreliable, and the points she made were considered at both the disciplinary and appeal hearings. Even now, with knowledge of the identities of most if not all of the children interviewed, the Claimant has not been able to point to any additional matters she could or would have known or raised if she had known their identities sooner. It is also clear from the statements themselves that the three teaching assistant colleagues who were interviewed at the outset of the investigation were people who worked alongside the Claimant in the classroom and she would therefore have been aware of their identities.[112]Viewed in the round, I cannot see evidence that this aspect of the Claimant caused any actual unfairness in the circumstances of this case, even if it may have had the potential to do so. Looking at the investigation, disciplinary and appeal process as a whole, I do not consider that this aspect of the investigation caused any significant actual unfairness, or fell outside the range of reasonable responses.[113]I have addressed the specific points the Claimant has made in relation to the fairness or otherwise of the procedure adopted. It will be apparent that, although that I accept that there were some flaws in the procedure adopted by the Respondent, my conclusion is that, viewed as a whole, it fell within the range of what was reasonable in the circumstances. Whether the decision to dismiss the Claimant was within the range of reasonable responses open to a reasonable employer in the circumstances[114]The Claimant complains that it was not reasonable to extend the scope of the disciplinary investigation beyond the original matters reported to the police. I do not consider this criticism to be well-founded. The content of the interviews, which I have referred to in summary before above, conducted in March 2023, April 2023 and May 2023 with a range of children and staff present in the Claimant’s classroom raised matters which a reasonable employer might well conclude warranted further investigation and a broadening of the initial scope of the enquiry. They raised concerns about children feeling scared of the Claimant and scared by the way she expressed herself in the staffroom. Those were concerns which the Respondent felt duty-bound to investigate because of its welfare responsibilities towards the children in its care. I consider that the Respondent was reasonably entitled to take that view.[115]I also accept the points made on behalf of the Respondent that sometimes individuals who are aware that someone is already under investigation feel empowered to raise concerns of their own, and that this may lead investigations to grow organically, and that it is appropriate to deal with all matters together within a single investigation.[116]The Claimant also complains that the Respondent erred in regarding many of these allegations as a safeguarding matter, saying that if it matters were truly considered to be safeguarding issues, they would be raised with the Local Authority Designated Officer under formal safeguarding procedures. I consider that this is an overly technical interpretation of the concerns expressed by the Respondent. Whilst there may be formal safeguarding processes for certain matters, in a broader and lay sense of the word “safeguarding” the Respondent, as a school, clearly has a pastoral/welfare responsibility for the pupils at the school. If it considered that the Claimant’s conduct had the potential to impact on student wellbeing, it appears to me that it was reasonably entitled to investigate it.[117]I turn now to consider the reasonableness of the Respondent’s decision in relation to each of the seven allegations which was upheld. 117.1. Allegation 1 (the “chattering monkeys” allegation). 117.1.1. I consider that the Respondent was entitled to conclude that the Claimant used the language alleged. However I note that her account of the precise words she used was accepted by the police and appears to have been corroborated by the staff colleagues present (as reported by the police) and the children interviewed by Ms Allan. 117.1.2. The Respondent’s conclusion on this issue, according to both Mrs Ponton and Mrs Partridge, was effectively that the matter was serious because of the racial diversity in the class and “the pupil and parent perception was that the statement was racist”. However I do not consider that a reasonable employer could have reached a conclusion on the severity of this incident without asking itself the question of motivation, in other words whether it was simply a clumsy and ill-chosen means of expression with a potential to cause offence. If it was, then in isolation it is difficult to see how a reasonable employer could conclude that this incident taken on its own was sufficient to amount to gross misconduct warranting summary dismissal, which according to Mrs Partridge is how it was viewed. 117.1.3. Mrs Ponton appeared to concede this in crossexamination, saying that she accepted that taken alone this incident might not be sufficiently serious to warrant dismissal for gross misconduct. 117.1.4. However, as Mrs Ponton went on to point out, this incident was not the sole incident, and to some degree this may be an academic point. 117.2. Allegation 2 (the “shooting” remark). 117.2.1. This allegation was corroborated by the statements of a number of pupils. It was also clear that while some of those pupils had understood the comments to be intended as a joke, pupils had nevertheless been upset by them. Mrs Partridge explained in her evidence (and I am paraphrasing her evidence a little) that post-pandemic, pupils tended to be less well emotionally developed and resilient than they might previously have been. I find that the Respondent was reasonably entitled to conclude that the comments were made and were distressing or frightening to some students. Again, however, when assessing the severity of this conduct, the Respondent does not appear to have addressed its mind to the issue of whether these inappropriate remarks were innocently meant, and whether this meant that they fell short of the territory of gross misconduct for which summary dismissal would be appropriate. 117.2.2. Again, however, this may be an academic issue in the light of the other allegations. 117.3. Allegation 3 (negatively impacting on children’s wellbeing). 117.3.1. The Respondent’s criticisms of the Claimant in respect of this allegation appear to fall into two categories. First is, in summary, that she took an excessively strict or arbitrary approach to classroom discipline and punishment. Second is, in summary, that she allowed her own personal mood or issues to impact on her behaviour towards students. These were, it seems to me, allegations about the way in which she conducted herself in the classroom, but were essentially about her teaching or communication style. 117.3.2. On the evidence before it, these were allegations which the Respondent was reasonably entitled to uphold. There was corroborative evidence from students, parents and classroom colleagues. 117.3.3. However there was also evidence from the Claimant’s professional colleagues which the Respondent appears to have disregarded or dismissed as irrelevant for reasons which are not adequately explained. The same classroom assistants who said that some children were scared of the Claimant also commented that some of the children needed a strict approach and that the class was challenging. This aspect of their evidence does not seem to be referred to at all in the evidence given by the Respondent’s witnesses, and it is unclear why it was not given as much weight as the negative evidence they provided. 117.3.4. The Claimant provided evidence from the SEN Co-ordinator that the class was acknowledged to be “particularly tricky”. This evidence appears to have been rejected on the basis that this individual was on friendly terms with the Claimant, but it is unclear why that meant that her professional views were not relevant. 117.3.5. The Claimant also provided evidence of two recent lesson observations conducted by the head teacher, which commented positively on the Claimant’s teaching style, relationship with pupils, and the atmosphere in the class. This appears to have been discounted on the basis that the Claimant would be on her best behaviour during a lesson observation. However the lesson observations are presumably carried out by the Respondent because they are considered to provide a meaningful assessment of the Claimant’s approach to her teaching, and it is difficult to understand from the Respondent’s evidence why this was not considered relevant balancing evidence in response to allegations of an inappropriate approach to her teaching. 117.3.6. The Respondent has referred to an earlier incident in 2022 when the Claimant was required to apologise to a parent for an allegedly appropriate remark she made upsetting children. However it is of note that no formal disciplinary or performance action (even a first warning) had ever been taken against her, and that she had received positive feedback from her recent observations. 117.3.7. Her evidence included two lesson observations (conducted by the head teacher in June and December 2022), two performance management reviews, and a statement from the SEN co-ordinator at the school, commenting positively on the Claimant’s teaching style, her relationship with her pupils and the atmosphere in her class. The SEN co-ordinator commented that the Claimant’s class was acknowledged by staff at the school to be a “particularly tricky class”. 117.3.8. It seems to me that any reasonable employer would, when faced with allegations which essentially went to the employee’s teaching and communication style, have balanced those allegations properly alongside evidence which tended to suggest that those allegations might not reflect the Claimant’s usual performance or conduct. By doing so, the reasonable employer might be able to consider whether these allegations pointed to misconduct warranting dismissal or merely to issues of performance capable of being addressed or remedied with appropriate guidance. Without having carried out that balancing exercise, it seems to me that a conclusion that this was gross misconduct warranting summary dismissal fell outside the range of reasonable responses in respect of this allegation. 117.3.9. I accept the point made on behalf of the Respondent to the effect that the line between conduct and capability is often a fine one, particularly when the Claimant’s alleged failures related to her behaviour, language and communication in the classroom. The Respondent argues that it is reasonable to pursue the matters as conduct rather than capability. Whilst that may be true, it appears to me that the real issue is whether the Respondent was entitled to conclude that this amounted to misconduct of a type which was so serious as to warrant instant dismissal without any warning or opportunity to improve. That is the assessment which in my view is rendered impossible if an appropriate balancing exercise has not been performed. 117.3.10. Again, however, this may be academic in the light of the other allegations. 117.4. Allegations 4 and 5 (the physical assault allegations) 117.4.1. The Claimant conceded in cross-examination that if these alleged incidents were found to have occurred, they would have been sufficiently serious to be characterised as gross misconduct. 117.4.2. The Respondent’s witnesses were clear in their evidence that they believed the children’s accounts of this incident, and concluded that the incidents occurred. 117.4.3. On the evidence available to the Respondent, I consider that this conclusion was within the range of reasonable responses. I note that a number of the children interviewed by Ms Allan in May 2023 referred to an incident of the type alleged. 117.4.4. At the disciplinary and appeal hearing, the Claimant appears to have focused primarily on three issues: discrepancies in the children’s accounts, the fact that the allegation was not reported at the time it occurred by the victim’s mother, and the fact that the allegation was first raised not by the victim, but by the child who had made the “chattering monkeys” allegation. She also referred extensively, particularly at the appeal stage, to research about how children may acquire “false memories”. Finally, she considers that the Respondent should not have investigated these matters because they were historic. 117.4.5. It is clear from the evidence of Mrs Ponton, Mrs Partridge and Mrs Graham that they considered the matters raised by the Claimant but considered that this did not fundamentally undermine the children’s account. Mrs Ponton, in particular, gave oral evidence that in her experience children tend to remember the core elements of incidents which have caused them shock or distress. She did not find any evidence that this was a false memory or a fabrication. 117.4.6. I consider that the Respondent appears to have had cogent reasons for accepting the children’s evidence in relation to these allegations and that their belief in the Claimant’s guilt was reasonable and fell within the range of reasonable responses. I also consider that it fell within the range of reasonable responses to investigate these matters once they were reported, even if they had happened some time ago. 117.4.7. Having reached that conclusion, given the severity of the conduct involved, it seems to me that a conclusion that this was misconduct such as to warrant dismissal was within the range of reasonable responses available to a reasonable employer in the circumstances. 117.5. Allegation 6 (detrimental effect on the organisation of the year group regarding examinations and residential arrangements). 117.5.1. The Claimant appears to have understood this allegation to be that alternative arrangements had to be made regarding SAT examinations and the residential event because of her suspension. Had this been the case, it might well be arguable that it would be unfair to criticise her for this when she had no control over the fact or duration of her suspension. 117.5.2. The Respondent’s position, however, is that this allegation is about the fact that a number of children reported anxiety about attending the SATs club or the residential trip because of the Claimant, and a number of parents reported that they were not comfortable with their children attending these events. 117.5.3. This allegation therefore appears to flow directly from allegation 3, concerning the Claimant’s relationship and communication with some of the children in her class. The same points can therefore be made here as in relation to allegation 3: on the evidence available to it, it was reasonable for the Respondent to conclude that this allegation was made out. However before considering whether this was a serious misconduct issue, no reasonable employer would have failed to balance this against the evidence suggesting that this was a difficult class, that the Claimant’s teaching style could on other occasions be very positive. By failing to carry out that balancing exercise, the Respondent had failed to consider properly and fairly whether this was an issue of capability or teaching style which was capable of being rectified with appropriate corrective intervention. 117.6. Allegation 7 (bringing the school into disrepute). 117.6.1. This allegation is said by the Respondent to flow from the fact that some parents reported to Mrs Allan during the investigation that they had considered removing their children from the school due to the Claimant’s conduct. 117.6.2. As with allegation 6, this appears to flow from other allegations, and it seems to me that the same point can be made here about an apparent failure by the Respondent properly to consider and balance the competing evidence of positive relationships and interactions with other children in the class.[118]Finally the question is whether dismissal was a fair sanction in all the circumstances, having regard to the misconduct the Respondent believed had occurred. I accept the evidence of Mrs Ponton that this was a case where each of the seven proven allegations was regarded as being sufficiently serious to warrant dismissal in its own right.[119]For the reasons set out in some detail above, I find in respect of both allegation 4 and allegation 5 that it was within the range of reasonable responses available to a reasonable employer to find that these amounted to sufficiently serious misconduct to warrant the Claimant’s dismissal.[120]For the reasons I have set out, I consider that, as standalone charges, it was not open to a reasonable employer to find that allegations 1, 2, 3, 6 or 7 these were so serious as to warrant dismissal without first having carried out a balancing exercise in respect of the evidence which gave a different perspective about the Claimant’s manner of conducting herself and communicating in the classroom. There is no evidence of that balancing exercise having been conducted: the evidence does not appear to be mentioned at all in the dismissal letter or in the Respondent’s witness statements. The Respondent has not advanced its case on the basis of the cumulative effect of the allegations, and I have therefore not considered that point.[121]Having regard to the findings I have made in respect of allegations 4 and 5, and the principle set out in the cases of Carlin v St Cuthbert’s Co-operative Association Ltd and Tayeh v Barchester Healthcare, I therefore find that the Claimant’s dismissal was within the range of reasonable responses and was not unfair.[122]Having made that finding, I do not need to go on to consider the issues of contribution and Polkey.[123]The Claimant’s complaint of unfair dismissal is therefore dismissed.
Conclusion
[124]For the reasons I have given, I find that the Claimant was fairly dismissed by the Respondent by reason of misconduct. The Claimant’s complaint of unfair dismissal is dismissed. RECONSIDERATION JUDGMENT The claimant’s application dated 23 August 2024 for reconsideration of the judgment sent to the parties on 8 August 2024 is refused.