"The major difficulty in reaching a decision has been what we see as a failure of the Social Services and Police to complete a fully satisfactory investigation. It is our intention to raise this matter with them. We refer to the allegations point by point. 1. Girls sitting on Mr Kirk's lap. We are unable to say on balance of probabilities that this occurred. 2. Arms around the waist of girls and touching their bottoms. We are unable to say on a balance of probabilities that this occurred. 3. Hands on girl pupils' necks and down the back of their blouses. Mr Kirk admits that has happened (in relation to the touching of children's necks). Hands down the back of blouses. We are unable to say on balance of probabilities that this occurred. 4. Visiting the home of S, sending and giving money and writing cards with words "
"It is apparent that Mr Kirk's assessment of risks that existed within the school in relation to behaviour between teachers and pupils did not reflect the risks that are now perceived in modern society. This also is reflected in the touching of shoulders which, in the panel's view, can be avoided by simple verbal instruction. In considering what further action to take, we have been mindful of the advice given by the Social Services. We find Mr Kirk is guilty of gross misconduct in failing to ensure the School's policies and procedures with regard to behaviour and relationships between teachers and pupils has not been maintained at a satisfactory level. We clearly see the duty to maintain such procedures as a key facet of the role of head teacher and do not have the trust and confidence in his ability to remedy this situation and therefore have no alternative than to dismiss Mr Kirk from his post as headmaster."
"12. It was inevitable, once Mr MacDonald had given his evidence, that the complaint of unfair dismissal must succeed. The complaint of sex discrimination also succeeds. There has been comparatively little evidence on this point. Some witnesses conceded that had this been the case of a female head teacher less concern would have been felt. Some have not made that concession but we reject their denials as incredible. Mr Metcalf's case is quite simply that it is self-evidently the case, a matter of common sense, that a headmistress either would not have been disciplined or would have received little more than a cautionary word. Mr Dineen submits that it is not for us to use our experience of the ways of the world, he delicately avoided the use of the word wisdom, to act as the industrial jury in the absence of some evidence enabling us to do so. In the absence of such evidence we would not be able to do so. But there is such evidence. We are invited by Mr Metcalf to draw the appropriate inference from it. We do so. Mr Kirk has been treated less favourably on the grounds of his sex than a comparable woman head teacher would have been treated, whether the true comparator be a head mistress and male pupils or a head mistress and female pupils."