“Andrew has been observed to rub his hand on a student’s head and shoulder. This was after a number of students had come in from outside from heavy rain and they were completely wet. The teacher who observed the incident felt it was inappropriate and uninviting [sic] to rub water off a student’s head and shoulder without permission. The student looked uncomfortable/embarrassed when this happened and commented he was unhappy to another student. The student completed an incident form stating that he didn’t feel comfortable when his head and shoulder was being rubbed by Andrew.”
“On balance I feel the proportionate response is for the employer to investigate this matter internally with Andrew with consideration to raising awareness of professional boundaries and any training that may be required in support of this. The employer is advised of the duty of care to the employee during the investigation process and Andrew’s right to know that he has been referred to the LADO service.”
“The year 8’s had p.e. and it was raining heavily so we had to go back into H-Block to go have a shower, and then one of the inspectors rubbed his hand on me on the shoulder and on the head. I didn’t really feel that comfortable when he was touching me, and at that time I was all wet because it was raining a lot outside.”
“The second inspector (Andy) walked over to a student who was noticeably the shortest in the group and expressed sympathy that he was drenched in water and then unexpectedly, without permission from the student wiped his wet head and shoulder as a sign of affection. The student was noticeably shocked and embarrassed and complained to his teacher once the inspectors and other staff had left the building. The student expressed feelings that his personal space had been invaded and he was extremely uncomfortable being touched by a stranger directly on his skin/hair whilst he was already uncomfortable due to being wet. At best this was a slimey [sic] and very precarious situation. It should be noted that the lead inspector was present at the time and did not challenge this behaviour from the second inspector and as such herself fell short in her duty to safeguard children. The lead inspector did not alert the DSL [designated safeguarding lead] of the school or the head teacher of what had happened. However the incident was reported both by the student and the consultant who had witnessed the incident. This incident was immediately referred to the local authority safeguarding team by the school DSL.”
“(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, (c)-(d) … (3) … (4) Wherethe 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.”
“… to uphold and demonstrate Ofsted values at all times, carry out their work with integrity treating all those they meet with courtesy, respect and sensitivity; take all reasonable steps to prevent undue anxiety and to minimise stress for those being inspected; to act in the best interests and wellbeing of service users, prioritising the safeguarding of children at all times.”
“46. The claimant expressed the view that the complaint had been blown out of proportion and that the complaint from the school had not been shared with him. He expressed the view that the school was looking for a reason to pick on an inspector. The claimant at the hearing read his prepared notes and sought to assert that he respected the child and his was a caring gesture ‘to show that you were trying to care for a child and engage with him’. The claimant suggested that the touch was not excessive and he had not hugged the child. 47. Ms Thompson on the claimant’s behalf questioned what he had done in breach of the Code, and it was plain that it was the fact that the claimant, without invitation or consent, had touched the child on the head and shoulder. What was not in dispute was that the touch was uninvited – it was a touch on the head and forehead and on the face of the child The reference to touching the child’s “face” as something distinct from touching the forehead,appears at various places in the documents, but it is potentially misleading. The complaint had never been that the Claimant had touched any part of the child’s head except the forehead. The point is not of great significance, but it is worth making becausetouching the face below the forehead would evidently be more intrusive. . 48. During the disciplinary hearing the claimant on occasion became upset, and while he acknowledged the impact of events on Ofsted he suggested in mitigation that there were ways to address the issues like this and he did not feel it fell within the disciplinary procedures. The claimant in particular said ‘To say I would not do it again would suggest I’m guilty of acting inappropriately. I feel that the gesture of care for a child and engagement, I still feel that it was not a crime and needed to come to this point. It does not fall within the definition of gross misconduct. Having gone through all this and the stress I can say that I would not do it again. That is not suggesting I’m guilty. Does that make sense?’”
“I feel the school is looking to blame the inspector on something. It’s been a difficult school. I’ve been there three times. I know an array of complaints have been made about previous inspectors from that school. … I think the school is looking for a reason to pick on an inspector. I might be wrong.”
“Following the disciplinary hearing held on21 November 2019 , I am writing to confirm the outcome, and the reasons for my decision to dismiss you without notice for gross misconduct, in line with Ofsted’s disciplinary policy and procedure.”
“Whilst I understand you may have been trying to convey a feeling of trust and openness, your act in touching the smallest boy in the group, without being absolutely certain that this was acceptable to them, was a grave error of judgement on your part.”
“I asked you during the hearing whether you would do this again. You stated you would not, because of how stressful the investigation and discipline process had been for you, but you were firm in your view that you felt your actions were appropriate. I therefore have no confidence that you recognise your error, or that you are able to maintain the professional boundaries between yourself and the student.”
“The grave error of judgement you displayed in this case, and your lack of contrition or recognition of any wrongdoing, has led me to regretfully conclude that your actions, and response to the challenge, have destroyed the relationship of trust and confidence I require in you to continue as an SCRI. I have no option but to dismiss you from your role with immediate effect.”
“The decision maker was correct to rule that you cannot be relied upon to exercise clear sighted professional judgment in the future. You have not convinced me that your professional judgment is sufficiently consistent. Your lack of professional judgment has led you to touch a student in an untoward manner which, as reported, made the student feel uncomfortable. This is in my view a very grave misdemeanour.”
“71. I am conscious that this is a case in respect of which Mr Kirk has suggested that in cases relating to safeguarding children it is important to examine with care whether the allegations of inappropriate physical contact with children have been properly covered in disciplinary rules. In this case there is no ‘no touch’ policy, and the respondent does not consider that a policy was required. 72. It is accepted that there was no harm intended to the child. The case of West v Percy Community Centre UKEAT0101/15 to which Mr Kirk refers is one in relation to a teacher and the policy that was applied in that case. I am reminded also that great scrutiny is required of alleged misconduct where an employee might, as a consequence of an adverse decision, be prevented from working in his chosen field ever again. 73. This case, however, is not a safeguarding case, it is one in which the respondent who were responsible for ensuring standards within regulated environments are well maintained. The inspector is expected to exemplify the highest standards. Mr Kirk asked me to consider what ‘the man on the Clapham omnibus’ might think of events when, as a result of an adult touching a child in a caring manner, that person was dismissed for gross misconduct. Were the man or indeed a woman on the Clapham omnibus to view the scene that occurred in 2019, I conclude that such an uninvited and unnecessary touch by an unknown adult to wipe away water from a child’s forehead would cause any reasonable person who saw such an interaction to feel unease. The unbidden touch by an adult of an adolescent and young child by a stranger in this day and age would be seen as not appropriate and might be considered to be a misuse of power which violates the child’s right to be treated with dignity. To show ‘care’, as the claimant suggests, he may more appropriately have simply explained, to the child that he looked like a drowned rat, and perhaps to have gone on to commend the child to get out of the cold and to dry off, such a limited nonphysical engagement which would not in those circumstances be inappropriate. However, that was not the case. The claimant touched the child and did not see his actions as inappropriate, when outside a social work context on an inspection and this was the reason that caused the respondent to conclude that there was a fundamental loss of trust and confidence. 74. It is clear that the reason for the claimant’s dismissal as detailed by Ms Fitzjohn, was the claimant’s conduct. The respondent followed their disciplinary process in accordance with their procedure. … The reason for the dismissal was set out in the outcome letter and the suggestion that the dismissal was made for ulterior motives, to placate in some way the school that had raised a number of complaints, or that it was a mask for dealing with performance concerns, does not hold credence. 75. The claimant was aware of his behaviour in respect of which he was being investigated and subsequently disciplined. The claimant was an inspector and a senior member of the respondent’s staff, and in the circumstances the claimant should have been aware of the consequences of inappropriate touching. The claimant, a social worker by background, was aware of the appropriate circumstances in which touch might be used. It was not advocated that casual intrusive social touch was appropriate: rather the acceptance of touching is in the context of particular social care events which were not present on 8 October. 76. In light of the findings that I have made and having considered the submissions made by both parties’ counsel, I conclude that the respondent’s reason to dismiss the claimant was misconduct and gross misconduct, and in particular that the claimant’s actions undermined the trust and confidence that the respondent was entitled to expect to have in the claimant’s ability to perform his job as an inspector.”
“[W]e are bound to say that the Tribunal unnecessarily complicated the analysis by referring to ‘loss of trust and confidence’. Its doing so is understandable, since that is the way the case was put in the Respondent’s pleading and apparently in [counsel’s] oral submissions. Nevertheless, we think it unhelpful. Although in almost any case where an employee has acted in such a way that the employer is entitled to dismiss him the employer will have lost confidence in the employee (either generally or in some specific respect), it is more helpful to focus on the specific conduct rather than to resort to general language of this kind. We have noticed a tendency for the terminology of ‘trust and confidence’ to be used more and more often outside the context of constructive dismissal in which it was first developed (see, classically, Malik v Bank of Credit and Commerce International SA[1997] ICR 606 ): this is a form of mission creep which should be resisted.”
“78. While I, and indeed the LADO, may have considered that a sanction falling short of dismissal may be appropriate and further training might be given, it is not for me as an Employment Judge, or anyone else, to substitute our view for that of a reasonable employer, and one in the exceptional circumstances and remit of the respondent. 79. The claimant was aware of the rules and guidance issued by the respondent, and the claimant’s actions were found to fall short of the standards and expectations of the respondent. The claimant throughout the disciplinary hearing and for much of the appeal hearing maintained that his actions were seeking to show his compassion and care to a child in the school environment, while ignoring the fact that his role on an inspection was not to demonstrate that he, as an inspector, cared. Rather than placing the child at the centre of his care the observations of his employer and the discipline and appeals manager were that he failed to appreciate the standards of behaviour as an inspector in the circumstances. 80. I conclude that the respondent, having had regard to all of the statutory guidance and ACAS guidance, has acted fairly in reaching the conclusion that they did. The respondent has clearly demonstrated a fair reason to dismiss the claimant. The claimant was dismissed for reasons of gross misconduct and the dismissal decision was fair in all of the circumstances in this case.”
“26. … Ground 1 contends that the tribunal erred by finding that the sanction of dismissal fell within the band of reasonable responses without having proper regard to the ACAS Code. In particular, it contends that the tribunal had no proper regard to the lack of any disciplinary rules making it reasonably clear to the claimant that a single instance of conduct of this particular type would be treated as likely to lead to dismissal. 27. Ground 2 contends that the tribunal erred, when considering whether the sanction of dismissal was within the band of reasonable responses, by failing to take account of important factual considerations, being specifically: (a) the fact that the respondent expected employees to refrain from almost any physical touch, but had not informed them of that in any disciplinary rule or training; and (b) failing to examine whether the respondent had considered key points relevant to sanction, including the claimant’s length of service and his full and frank apology for his actions. 28. Ground 3 contends that the tribunal erred when considering the fairness of the procedure in the following respects: (a) failing to consider whether the investigation failed to comply with the ACAS Code, by the claimant not being provided with relevant evidential statements; (b) failing to consider that the respondent had failed to explore potentially exculpatory lines of enquiry despite these being raised by the claimant; (c) failing to consider whether there had been a breach of the ACAS Code or natural justice, by the appeal officer (i) reneging on an assurance that the claimant’s previous inspections record would not be considered at the appeal; and (ii) expressly relying on lapses of judgment during previous inspections that were not put to the claimant for a response.”
“Those being the facts, the question for the tribunal was whether the respondent was entitled to take the view that it did not need to be spelled out that what the claimant did was conduct for which he could expect to be dismissed, because it should have been obvious, from its nature, that it was.”
“Mr Allen KC’s stance, as we have noted, was that it was in fact not the respondent’s position that the original incident was in and of itself conduct for which he could expect to be dismissed, but that the claimant had been dismissed because of his subsequent attitude to it. However, we do not think that the issue can be simply side-stepped in that way. That is for the following reasons.”
“… failed to engage with the fact that an important part of the respondent’s reasons for dismissal related to the attitude to his conduct, which the claimant displayed in the course of the disciplinary process, and which undermined the ability of the respondent to place trust in him in the future. This was reflected in the tribunal’s conclusion at [76] that the claimant had been dismissed because his actions – in the plural, noted Mr Allen KC – undermined trust. It was the claimant’s lack of professionalism, in accordance with the standards to which the disciplinary charges referred, in displaying that attitude, that led to his dismissal.”
“… [I]f it would not, in the given case, be open to the employer, within the band of reasonable responses, to dismiss for the substantive conduct, then the absence of such features cannot render that sanction fair.”
“83. In the present case the substantive conduct with which the claimant was charged was the touching incident itself. From its findings, accepting Ms Fitzjohn’s account in the dismissal letter, the tribunal found that this was also the conduct for which the claimant was dismissed. As the tribunal summarised, at [53]: ‘It was concluded that the claimant had failed to exercise good inspection judgment by initiating physical contact with a student when it was not invited or expected.’ In so finding it drew on the statement in the dismissal letter that: ‘your act of touching the smallest boy in a group, without being certain that this was acceptable to them, was a grave error of judgment on your part’. The discussion at [74] of the conduct for which he was dismissed is of the conduct in the incident. The reference at [77] to ‘actions’ is to the ‘conduct about which complaint had been made.’ 84. True it is that Ms Fitzjohn also, as was found, considered that the claimant continued to demonstrate a lack of insight, in the course of the disciplinary process, such that she could not safely impose a sanction short of dismissal. But her starting point (as recorded at [54]) was that he ‘had no awareness’ - that is, at the time of the conduct - of how serious it was; and similarly (at [57]) she considered that the damage done by the referral to LADO and the complaint from the school ‘could have been avoided had you shown better judgment’ - that is, by not engaging in the conduct itself. 85. It is clear from these passages that the tribunal’s factual findings as to the reason why Ms Fitzjohn dismissed the claimant, was because she considered that the claimant’s conduct was so serious as to warrant dismissal, and that he ought to have appreciated that. The tribunal’s findings accepting Mr Simmons’ reasons stated in the appeal outcome letter, convey that these were, at least in part, because he shared that view. They included, in the passage cited by the tribunal at [68]: ‘Your lack of professional judgment has led you to touch a student in an untoward manner which, as reported, made the student feel uncomfortable. This is in my view a very grave misdemeanour.’ That is plainly a view of the gravity of the conduct itself. 86. As found by the tribunal, what Ms Fitzjohn considered to be the significance of the claimant’s continuing poor attitude, was linked to her view of the seriousness of the substantive conduct. It was because she considered that it was inherently so very serious, that she was concerned not only that the claimant did it at all, but also that he had failed to acknowledge that, even in the course of the ensuing disciplinary process. He could not be trusted, in her view, to have learned his lesson, and so to refrain from a repeat of what she considered to be such inherently serious conduct.”
“It was therefore, in our judgment, incumbent on the tribunal to consider whether it was open to the dismissing and appeal officers, within the band of reasonable responses, to take the view that the claimant’s conduct was of such a kind that he did not need to be specifically forewarned that it would be regarded as so serious as to warrant dismissal. Plainly there are some kinds of physical touch, the inherent and/or unambiguous nature of which is such that the employer could unhesitatingly so conclude, and a tribunal would unhesitatingly find that to be fair. The task for the tribunal was to decide, in light of all its findings of fact, whether this incident fell into that category.”
“92. Secondly, however, there is, respectfully, not a clear through line of reasoning on that question [i.e. the question defined in para. 87], and specifically as to whether it was within the band of reasonable responses for the dismissing and appeal officers to consider that, notwithstanding that there was no guidance document on the question of physical contact or touch, the claimant should have appreciated at the time of the incident, that his particular conduct was as grave as they both considered it to be. 93. At [71] the tribunal referred to the need, in safeguarding cases, to consider whether the allegations have been properly covered in disciplinary rules. It noted that in this case there was no ‘no touch’ policy, and observed that ‘the respondent does not consider that a policy was required’. It referred to the need for great scrutiny in a case where an adverse decision may prevent the employee from working in their chosen field again. It then continued, at [73]: ‘This case, however, is not a safeguarding case.’ It is unclear to us from this passage whether the tribunal’s thought process was that, because this particular incident was not said to raise a safeguarding issue, therefore the consequences of dismissal would be less serious for the claimant, and so therefore the employer’s decision did not need to be subjected to the same high degree of scrutiny as it would have been in such a case. If so, that was not a sound basis on which to conclude that it was fair to dismiss the claimant for this particular conduct, without him having been forewarned of that possible sanction. 94. Apart from that, it appears, in light in particular of the discussion in the middle section of [73], that the tribunal did consider that the respondent properly considered this conduct to be of such a nature that the claimant should have appreciated that he could expect to be dismissed for it. It appears from [75] that the tribunal considered that was so, in light of his experience and background. It also appears from [79] that the tribunal considered that was so in view of the ‘rules and guidance issued by the respondent’ – which can only refer to the materials referred to at [42] and [43]. 95. On the last point, in light of the facts which the tribunal found: that this particular incident was not regarded as giving rise to a safeguarding issue; that there was no written policy on touch; that it was not the case that the respondent had a ‘no touch’ policy; and as to the generalised content of the materials referred to in the disciplinary charges, it appears to us that it was not open to the tribunal, in light of those facts, to conclude that the claimant had been placed on express fair notice that this particular conduct in this incident would attract the sanction of dismissal.”
“102. In our view, as a starting point, the tribunal should have considered that the failure to provide the claimant with the statement of complaint about him by the school and the written account of the pupil, both of which were seen by the dismissing manager, was liable to render the dismissal unfair. 103. It would have been open to the tribunal, applying the guidance in Taylor v OCS Group Limited[2006] EWCA Civ 702 ;[2006] ICR 1602 (to which it referred The reference is in the Judge’s self-direction on the law at the start of the Reasons: the case was not deployed by her in this context. ), to take the view that omission of the school’s complaint was repaired by the provision of a copy at the appeal stage. But it was not sufficient to say, as it did at [36], that the claimant was ‘aware of the factual matrix’ of that complaint and the concerns raised by the child. Having been shown both documents, it is also apparent to us that how the school described the child’s account glossed the child’s own words to a degree. Had the claimant been provided with a copy of the actual text of the child’s statement, he would have had a fair chance to make direct submissions as to what Ms Fitzjohn, who had a copy, should make of it. As we have noted, he was not, in fact, properly made aware of its existence, prior to the tribunal litigation. The application of basic principles of natural justice should have led the tribunal to the conclusion that this omission was unfair. In this case that was reinforced by the fact that Ms Fitzjohn, in her decision, criticised the claimant for questioning the school’s bona fides in raising the student’s concerns, at a time when he had seen neither document. 104. We also take the view that the tribunal’s approach to the LADO report was unsatisfactory. The point that the employer had to make its own decision, which might properly differ from the view of the LADO, was not wrongly made, as such. But Ms Fitzjohn was made aware of the LADO’s view, and she referred more than once in her dismissal letter to the reference to the LADO, which she considered to be the route by which the claimant’s conduct had damaged the respondent’s reputation. Had the claimant had sight, at least, of the email from the LADO to Ms Moss, he would have been enabled to make a submission about that to Ms Fitzjohn by reference to its contents. Any sensitive personal information could have been redacted. Again, we consider it was an error on the tribunal’s part, not to find the handling of this aspect to have been axiomatically unfair.”