Ms B Subrian v Gilbert Colvin Primary School: 3202315/2023
EMPLOYMENT TRIBUNALS
Case No 3202315/2023
Between
Ms B SubrianClaimantGilbert Colvin Primary SchoolRespondent
Before
Employment Judge J FeenyIn person for claimantMs A Ahmed (instructed by counsel) for respondentDate 23 January 2025
JUDGMENT
The claim of unfair dismissal is not well-founded and is dismissed.
REASONS
[1]This has been a hearing to determine the Claimant’s claim against the Respondent consisting of a single complaint of unfair dismissal pursuant to Part X of the Employment Rights Act 1996 (“ERA”).[2]When presenting the ET1 on 3 December 2023 the Claimant had initially ticked the box for age discrimination, but she has since confirmed that no such claim has been brought by her.[3]At this hearing the Claimant has represented herself. The Respondent has been represented by Ms Ahmed of counsel. I have heard evidence from Suzanne Wright, Kate Clark, and James Clements for the Respondent. The Claimant gave evidence on her own account.[4]There was an agreed hearing bundle consisting of 160 pages. Ms Ahmed provided an opening note and written submissions following the close of evidence. Both Ms Ahmed and the Claimant made oral submissions.
Findings of fact
[5]From the totality of the evidence I make the following findings of fact. All findings of fact are made on the balance of probabilities.[6]The Respondent is a primary school based in Ilford under the authority of the London Borough of Redbridge.[7]The Claimant is a teacher. She has over 35 years experience. She commenced employment with the Respondent school on 1 January 2019. The Claimant was initially a year 5 teacher.[8]On 12 October 2022 a child reported that the Claimant had slapped him in class that day. The Claimant denied this. The Claimant did however admit that she took the child out of class the following day to speak to him about the incident.[9]In evidence Mrs Clark confirmed that she – as governor – had been the recipient of the initial complaint from the child’s parents. However, she had no further involvement in the process.[10]There was an investigation under the Respondent’s disciplinary policy. There was a disciplinary hearing on 4 April 2023 apparently in front of a panel of governors chaired by Mr Backhouse. The Claimant was cleared of the misconduct allegations relating to the physical contact, with the panel finding that the contact was unintentional. One allegation of misconduct was upheld, which was that the Claimant should not have taken the child out of class the following day to speak to him about the incident. This was said to be contrary to the Claimant’s safeguarding training.[11]As a result, the Claimant was given a written warning which remained live until 21 July 2023.[12]As a precaution following the initial disclosure by the child in October 2022, the Claimant was moved off year 5 and instead was used as a floating teacher to support year 6 pupils. This remained the case for the remainder of the Claimant’s employment.[13]On the morning of 11 May 2023 the Claimant was holding a class with a group of 10 year 6 children to support them with their maths SATs exam preparation. There were no SEND children in that class.[14]The Claimant accepts that during that lesson at around 11.45am she said to the group of children that she would “whack” them and gestured with her hand. The Claimant has always maintained that this was said in jest in response to a lighthearted comment from a boy (SS) about what would happen if the children didn’t hold their papers in place when writing the following day.[15]From around 12 to 1.15pm there was the lunch break. From around 1.15pm to 2pm the Claimant took a maths class. The same children were present along with SEND children, who were accompanied by their teaching assistant Mrs Khan. The Claimant denies making a similar comment in that class.[16]Just after 2pm, at the start of the next class PE, a child KA made a disclosure to a teacher. He said that he had been resting his head on his hand and the Claimant had said to him that if she saw him sit like that again she would “wank” him. It was subsequently clarified that the child had meant “whack”.[17]KA was then brought to the acting headteacher Barbara Amiable who questioned him whilst recording his answers. Notably, KA said that after the comment was made, he “was quite normal on the outside but on the inside [he] was quite upset and angry”. He was also asked who was present with him and he named two boys who are both SEND pupils.[18]On the same day the teacher that KA had made the disclosure to completed an incident report. She said in that report that he had described the incident as happening “like 5 minutes ago just before PE”.[19]At the end of the following day (12 May 2023) the Claimant was asked to see Mrs Amiable. Mrs Amiable explained that a boy had disclosed that if he didn’t sit up the Clamant would whack him. No time was given nor was the name of the child provided. The Claimant did not comment on the allegation at the time, which is standard procedure. She was told there would be an investigation.[20]On 15 May 2023 a child in KA’s class was interviewed, child R, about the incident. She said KA had been slouching on his desk and the Claimant said sit up or I will flick you in the head. It is notable that although child R used the word “flick” she prefaced this by saying that she had forgotten the actual word used but she knew it meant hit.[21]On 16 May 2023 the Claimant had a conversation with assistant head teacher Anne Fitzpatrick. Ms Fitzpatrick made a note of the conversation which in evidence the Claimant did not appear to dispute the accuracy of. It records that the Claimant said that she was frustrated with herself for the comment to KA (who is expressly named in the note) last week and how she immediately knew she should not have said it. Pausing there, in her evidence in this hearing the Claimant repeatedly said that she knew straight away she should not have made the comment and gesture.[22]The Claimant was suspended on 24 May 2023. The letter confirming the suspension also set out for the first time the allegation the Claimant was facing. This was that she “threatened a child and demonstrated intent to cause harm to that child which is a serious breach of the School’s Code of Conduct and Safeguarding Procedures”. This was further broken down into 2 allegations:a. You displayed aggressive behaviour and threatened physical violence to the child;b. You displayed behaviour which is likely to bring the school into significant disrepute.[23]The name of the child was not included in the letter. The letter did not identify the time of the incident or indeed even the date.[24]Marilyn Smyth was appointed as independent third party investigator. She met with the Claimant on 7 June 2023 by Zoom. A couple of hours after that meeting, at 17:38, Ms Smyth emailed the Claimant a draft statement based on her account given during the Zoom meeting.[25]Within 30 minutes of sending the email, before the Claimant had had a chance to review it, Ms Smyth called the Claimant to tell her that the child that had made the disclosure was KA. During the meeting the Claimant had referred instead to child SS and it was this name that initially appeared in the first draft of the statement, although notably KA does appear to have been identified in the meeting on one occasion by the Claimant as the affected child.[26]Following this call, the Claimant amended the statement and sent it back to Ms Smyth on the same day at 18:25. The Claimant made some typographical changes and changed the name SS to KA save that she continued to maintain that SS had been the child that initially asked what would happen if they didn’t hold their scripts properly the next day.[27]Ms Smyth drafted an investigation report which was dated 12 June 2023. This was sent to the Claimant attached to a letter dated 13 June 2023 from Mrs Clark inviting the Claimant to a disciplinary hearing. In the letter the Claimant was asked to provide the names of anyone she was intending to call as a witness.[28]It was only when she reviewed the investigation report that the Claimant realised that KA had placed the timing of the incident as after lunch.[29]On 28 June 2023 the Claimant’s trade union representative wrote a lengthy email to the Respondent. She suggested that given the conflict on timing Ms Smyth had investigated the wrong incident. Suzanne Wright wrote to the representative on 3 July 2023 to say that the investigation would not be reopened, in large part because the Claimant had already admitted that she had made the comment and gesture.[30]The Claimant herself followed up by email on 5 July 2023. She said that there were two “completely different” incidents: one at 11.45am which she had admitted to and one between 1-2pm. She said if she had known she was being asked about the second incident i.e. the one after lunch “she would have denied the allegation” and “changed her entire statement”.[31]She also said that in the class after lunch there were SEND pupils present. The Claimant has since said that this meant that an adult witness would have been present, Mrs Khan, and that she should have been interviewed as a witness. However, she did not state this in her email to Ms Wright at the time.[32]Ms Wright replied to reiterate that there would be no further investigation and the Claimant’s submissions would be considered at the disciplinary hearing.[33]The disciplinary hearing took place on 10 July 2023. Mrs Clark was described as chair but was in effect chairing the hearing alone. A decision had been made by the Respondent that as there was no permanent headteacher at the time a governor could be used essentially as a substitute headteacher and chair the hearing alone.[34]The Claimant was accompanied by her union representative. Ms Smyth presented the case in favour of disciplinary action. Ms Wright attended to support Mrs Clark. It is of note that:a. Prior to and during the hearing the Claimant did not name Mrs Khan as a potential witness.b. She said that her comment had been made in jest and that the context needed to be investigated to prove this.c. She demonstrated the gesture she had made with the comment. Mrs Clark perceived this demonstration as implying quite a forceful slap.d. Mrs Clark asked the Claimant why she had altered her statement following the Zoom call from a back-hand slap to a front-hand one. The Claimant said it seemed much less threatening that way.e. The Claimant said that KA continued to attend her after school club suggesting that he had not actually been upset by her comment.[35]Following the Claimant’s representative making submissions on the Claimant’s behalf Mrs Clark adjourned to consider her decision. She retired for only 30 minutes. Following this she reconvened the hearing and said that she had decided that the allegations were upheld and the Claimant was to be summarily dismissed for gross misconduct.[36]The Respondent wrote to the Claimant on 19 July 2023 to confirm the outcome of the disciplinary hearing and Mrs Clark’s reasons for it. The letter explained that even if the Claimant had intended the comment as a joke KA, who had English as an additional language, could not be expected to understand that and that he had felt threatened by the Claimant’s actions. This was said to be gross misconduct. The letter also stated that Mrs Clark had been “mindful of your existing live written warning” but without further exposition.[37]The Claimant appealed the decision on 19 July 2023. Her three grounds of appeal were that(1) the sanction was too severe, she should have had a final written warning instead,(2) the disciplinary policy was not followed (although this was not clarified further), and(3) the investigation lacked integrity.[38]The appeal hearing took place on 12 September 2023. This time it was in front of a panel of 3 governors, chaired by Mr Clements. The Claimant was again accompanied by her representative. Mrs Clark presented the case for dismissal. Ms Wright again attended to provide HR support.[39]The Claimant along with her union representative submitted that the comment was made in jest and should have been taken as such. The investigation was criticised including a submission that the other children should have been interviewed to ascertain the context.[40]Mrs Clark was asked questions by the panel. She was asked why she only took 30 minutes to make her decision. She replied that she had already been dealing with the matter, including speaking to LADO, prior to the disciplinary hearing and had done her “due diligence”. Pausing there, this was the same expression she used when asked the same question at this hearing. At the appeal hearing, Mrs Clark explained that it would not have been appropriate to interview other children for safeguarding reasons.[41]Mr Clements wrote to the Claimant after the hearing to confirm that her appeal was not upheld. He said the panel were unanimously agreed that dismissal had been the correct sanction. He explained that the appeal panel had the power to reinvestigate matters but did not feel that there was “new or compelling evidence” that warranted this.
The Law
[42]The right not to be unfairly dismissed is contained in section 94 ERA and the test the Tribunal must apply is in section 98 ERA. It is for the Respondent to prove that it had a fair reason for the dismissal; conduct is a potentially fair reason (s 98(2)(a) ERA).[43]As this is a conduct dismissal the well-established principles of British Home Stores Limited v Burchell [1978] IRLR 379 apply. They are:a. Did the Respondent genuinely believe that the Claimant was guilty of misconduct?b. Did it have reasonable grounds for this belief?c. At the time that it formed the belief had it carried out as much investigation as was reasonable in the circumstances?d. Was dismissal within the range of reasonable responses?e. Was the procedure carried out fair?[44]The Tribunal must not substitute its view for that of the employer: the test is whether the Respondent’s conduct in dismissing the Claimant was within the range of reasonable responses open to it (Iceland Frozen Foods v Jones [1982] IRLR 439, London Ambulance Services NHS Trust v Small [2009] IRLR 563).[45]However, the range of reasonable responses test is not infinitely wide and the Tribunal’s consideration of the claim should not be reduced to procedural boxticking (Newbound v Thames Water Utilities Limited [2015] IRLR 734). I must assess the substance of the decision.[46]Where the Claimant has exercised his or her right to appeal the decision to dismiss, the employer’s actions at the appeal stage are relevant to the test of fairness. Even if a disciplinary hearing has been defective, if this is remedied at the appeal stage, the overall dismissal will still be fair (Taylor v OCS Group Ltd [2006] ICR 1602).[47]I take into account the provisions of the ACAS Code of Practice for disciplinary and grievance procedures albeit compliance or non-compliance with the Code is not necessarily determinative of the claim.[48]In assessing whether to make a Polkey reduction I take into account in particular the guidance in paragraph 54 of Software 2000 Ltd v Andrews [2007] ICR 825.[49]For contributory fault, I can make a reduction in the Claimant’s basic award due to any blameworthy or culpable conduct before her dismissal pursuant to section 122(2) ERA if it is just and equitable to do so. If I find that blameworthy or culpable conduct by the Claimant caused or contributed to her dismissal, I can make a reduction to the compensatory award pursuant to section 123(6) ERA providing it is just and equitable to do so. I take into account the guidance given by the EAT at paragraphs 8 to 12 in Jinadu v Docklands Buses Ltd UKEAT/1066/16/BA (unreported).[50]During submissions I was also referred to the EAT’s judgment in Kids City Ltd v Gayle UKEAT/106/13/MC which I have also taken into account.
Conclusions
[51]At the conclusion of the evidence I identified 10 points of unfairness that it appeared to me that the Claimant had raised in her claim. These points were agreed by the parties and addressed in submissions by both Ms Ahmed and the Claimant. The 10 points are as follows:a. The disciplinary hearing should have been before a panel of governors, rather than just one, i.e. Mrs Clark.b. In reaching her decision Mrs Clark appeared to take into account the allegations of physical contact in the 2022 incident which were found not proven by the Respondent.c. Mrs Clark was wrong to regard the allegation that was upheld from the 2022 incident, namely the speaking to the child the day after the incident, as a safeguarding issue.d. Mrs Clark was wrong to say that there had been a pattern of behaviour from the Claimant.e. The Claimant was not given the name of the child who had made the disclosure until after her interview with Ms Smyth.f. The other children present should have been interviewed to ascertain the context in which the comment was made.g. There should have been a reinvestigation including Mrs Khan being interviewed once it was realised the timings were different.h. The Respondent should have accepted that the fact that KA continued to attend after school club with the Claimant present meant that he had not been upset by her.i. The appeal panel should have commissioned a fresh investigation.j. The sanction was too harsh, the Claimant should have been given a second or final written warning instead.[52]I will address each of these points in the course of going through the Burchell criteria.[53]The Claimant has always accepted that she was guilty of some misconduct in making the comment and gesture in the way that she did. Her case is that dismissal was too severe a sanction. It follows from this that the Claimant does not dispute that the Respondent had a genuine and reasonable belief that the Claimant was guilty of misconduct.[54]The Claimant does, however, take issue with the investigation, procedure, and sanction. I will take each issue in turn.[55]In my judgment, the Claimant’s challenges to the investigation do not stand up to scrutiny. I found it difficult to understand why the Claimant thought that the conflict of timing made any difference to the Respondent’s assessment of her conduct.[56]The Claimant accepted that she had done exactly what she was accused of doing. The only minor discrepancy was whether she had made the comment in response to a question from SS or at the sight of KA slouching at his desk. It did not appear to me that the Respondent formed a settled view on this point, presumably because it felt it did not need to. The fact is that the Claimant made the comment, accompanied with the gesture, and it is common ground that at least one child was so upset by this that he felt the need to raise it with another teacher.[57]For this reason, interviewing Mrs Khan would have made absolutely no difference to the evidence before Mrs Clark. At best it would have suggested that KA had got his timings wrong by a couple of hours. Conversely, it could potentially have been worse for the Claimant if Mrs Khan had said that the Claimant had also made a similar comment in the afternoon class.[58]It appeared from the Claimant’s evidence at this hearing that the root of her frustration was that if it had been clearly put to her at the start of the process that KA placed the timing of the comment as after lunch she felt that she could have denied the allegation altogether. She appeared to say in answer to my questions that she would not have felt it necessary in this scenario to share with the investigator that she had in fact done exactly what she had been accused of doing during the session before lunch. I found this evidence troubling. It tends to suggest that the Claimant has a habit of minimising her own wrongdoing and/or not appreciating the importance of her own safeguarding obligations as a teacher.[59]I also do not accept that the Respondent was required to investigate further the context of the comment. The Claimant in evidence suggested that 8/10 children might have realised it was a joke. Again I did not understand why the Claimant thought that made it acceptable for 2 out of 10 children to be upset by it. I also note that at no point did the Claimant suggest during the internal processes that any children laughed at the comment.[60]As for not being given the name of the child until later, this again in my judgment did not amount to material unfairness. There is evidence which suggests that the Claimant knew from the outset that it was KA that had made the disclosure. In any event, she knew that some children may have been upset by the comment as soon as she had made it. It appears that this argument leads back to the Claimant’s submission there were two different allegations being made that should have been investigated. As already explained, this line of argument is a dead end for the Claimant.[61]Ultimately, the Claimant admitted that she had done what she had been accused of. There was no need for further investigation in these circumstances.[62]I therefore accept that the investigation was reasonable. I consider next the procedure followed.[63]The Respondent’s disciplinary policy is not well worded on the question of composition of panels for disciplinary hearings. As a school with delegated authority to dismiss, the hearing would normally be chaired by the headteacher on their own. Section 7 of the policy states that where this is not possible the Chair will be “the Governing Body”. I note that the word used is not “Governor” singular.[64]Section 1.3 of the policy requires governing bodies to set up a disciplinary committee for hearings where the headteacher cannot chair it themselves. This states that the quorum for such committees is “at least three governors”.[65]Overall, I consider the correct interpretation of this policy is that the disciplinary hearing in this case should have been chaired by three governors. I accept, however, that this was an unusual situation in that there was no substantive headteacher available to hear the disciplinary, rather than a headteacher being conflicted from acting as envisaged in the policy. I also consider that any unfairness was remedied by the appointment of a full panel to hear the appeal. I take reassurance from the Court of Appeal decision in Westminster City Council v Cabaj [1996] ICR 960 that failure to provide a quorum panel in breach of internal policy is not itself unfair. I do however have concerns about Mrs Clark’s approach to her role, to which I now turn.[66]The Claimant criticises Mrs Clark’s approach to the previous warning on a number of grounds.[67]On the first point, I reject the Claimant’s contention that the warning did not suggest she had been found guilty of any safeguarding failings. The letter clearly states that speaking to the child about the incident was in breach of safeguarding training. Although I was not taken to any written guidance on this point, I accept the proposition that speaking to a child in this way is liable to make them confused and possibly affect their confidence in making disclosures in the future. This is clearly a safeguarding issue.[68]The Claimant also says that Mrs Clark did not seem to accept that the Claimant had been found not guilty of the allegation of physical contact. On this point I agree with the Claimant. Mrs Clark was the recipient of the initial complaint in October 2022 and appears then, presumably from speaking to the child’s parents, to have formed a settled view that the Claimant had deliberately slapped the child. She admitted to surprise when this was found not proven by the Backhouse panel. When the Claimant put to her during cross examination that there was no pattern of behaviour Mrs Clark’s answer was that there had been “a live warning for unintentional contact with a child”. There was no such warning in place at the time. Indeed, Mrs Clark failed to satisfactorily explain her reliance on the phrase “a repeated pattern of behaviour”; save that I accept for both incidents the Claimant ignored her safeguarding training.[69]I was also troubled by Mrs Clark’s evidence on why she only needed 30 minutes to decide to dismiss the Claimant. Her answer was that she had done her “due diligence”. This seemed to be a tacit admission that she had formed a view on what sanction she would apply even before the disciplinary hearing.[70]This brings me on to the issue of sanction. This really is the critical issue. Was dismissal within the range of reasonable responses?[71]On this I am agreed with the Respondent. I do not consider whether or not the comment was intended as joke to be particularly important. It was plainly an inappropriate thing to say. The accompanying hand gesture compounded matters, particularly where at least some of the children did not have English as a first language. A teacher may get away with a comment in these circumstances if all children receive it as a light-hearted comment and laugh along. It is common ground that this was not what happened here. The Claimant knew immediately that the joke had not landed. The risk of making such a joke is that if even only one child is upset by it, it must amount to a significant safeguarding issue.[72]Whilst I rather formed the view that the Respondent regarded the word “safeguarding” as some sort of panacea that trumped any rights the employee might have to an objective independent investigation into the facts, equally I was not satisfied that the Claimant properly understood her obligations as a teacher. Her suggestion that instead of a disciplinary investigation there should have been some sort of “clear the air” meeting with KA - a 10 year old boy - I found completely bemusing.[73]On that point, I agree with the Respondent that the fact that KA continued to attend the Claimant’s after school club sheds little light on his feelings towards her.[74]In answer to my questions, both Mrs Clark and Mr Clements said that the Claimant’s conduct on 11 May was gross misconduct and justified summary dismissal irrespective of the earlier live warning. I acknowledge that it is easy for witnesses to say this after the fact. In this case, however, I consider they are correct.[75]Although Mrs Clark in my judgment had formed a preconceived view that the Claimant should be dismissed for the misconduct prior to chairing the disciplinary hearing, in truth the Claimant said nothing at that hearing that would support a different decision. As already explained, there was nothing in what was the Claimant’s main objection that there was a second incident which should have been investigated instead.[76]Prior to the disciplinary hearing the Claimant had admitted doing what she had been accused of, which I accept on the face of it is a gross misconduct offence. Throughout the process including during the hearing with Mrs Clark the Claimant has offered no real mitigation. Even had Mrs Clark approached the hearing with an entirely open mind, or indeed if a different panel of three governors had chaired the hearing, it is difficult to see what other decision could have been reached. Ultimately, Mrs Clark was right to say that she could not have trust and confidence that the Claimant may not act the same way again, given the lack of contrition shown. For this reason, further warnings would not have been an appropriate response to the misconduct.[77]I also consider that the Claimant had a fair appeal hearing. The panel was quorum. She was permitted to make all submissions that she wanted to in support of her appeal which she did. Given my earlier findings, Mr Clements was clearly right to decide no further investigation was needed and that the prior investigation had not been unfair. The panel unanimously decided, having heard from the Claimant and her union representative at length, that dismissal was the correct sanction. Importantly, Mr Clements as chair was not aware of the circumstances that led to the Claimant’s earlier warning and so it could not infect his thinking the way it had with Mrs Clark.[78]I have considered whether in light of the procedural failings I have identified the dismissal was unfair. However, in those circumstances, I would make no award of compensation. I consider that dismissal was clearly the correct sanction to apply and if a full panel of governors other than Mrs Clark had been present for the disciplinary hearing there would still be a 100% chance that the Claimant would have been dismissed. I also consider that she is 100% responsible for her dismissal on account of her own conduct.[79]Ultimately, however, I consider that the fair appeal process is enough to rectify the faults with Mrs Clark’s approach. On that basis, my conclusion is that the dismissal was fair.