Teacher dismissed for 'safeguarding' concerns: lessons to learn from school who made mistakes at every stage
Schools and colleges obviously need to investigate safeguarding concerns and take appropriate action against staff whose actions or behaviour pose a risk to their students. But even where there are safeguarding concerns you should not lose sight of the fact that you need to conduct a fair disciplinary process, and demonstrate that your decision to dismiss an employee was fair in all the circumstances.
In Mr Howlett v Michael Hall School Limited we consider the mistakes a school made after it dismissed a long-standing member of staff following two safeguarding incidents.
Facts
The school launched an investigation into Mr Howlett's conduct in respect of two incidents; a school trip where he'd failed to obtain parental consent for some of the students, and a school talent show where he'd not enforced the rules around mask wearing during the Covid-19 pandemic. Both were deemed to be “safeguarding” incidents.
School trip
Before 2019, teachers were responsible for collecting signed paper parental consent forms ahead of each school trip. In 2019, the school introduced a new electronic system for collecting pupil information including consent forms. Ms Stephenson, the new Health & Safety Officer, was hired to manage it and had exclusive access to the system.
The school had a policy on education visits which required the senior leadership team (SLT) to give initial approval, check documents, and sign off on a trip before it could go ahead. But, it wasn't updated when the new electronic system was introduced and still referred to the paper based system of obtaining parental consent.
Mr Howlett wanted to take his class on a trip. He emailed his line manager, Ms Hawker, who agreed that the trip was educationally valid. Mr Howlett then emailed the risk assessment for the trip to Ms Stephenson who replied to say that the trip still needed SLT approval, and she identified some pupils who didn't have up-to-date parental consent forms.
The day before the trip, Ms Hawker emailed Mr Howlett to wish him a wonderful trip and asked him to tell them all about it at the next faculty meeting. He took this to mean that all the paperwork was in place and he had authority to go on the trip, which then went ahead as planned.
After the trip, it emerged that up-to-date parental consent was not obtained for the students identified by Ms Stephenson, and the school blamed Mr Howlett.
Talent show
On the eve of the school's annual talent show, parents received an email advising them that all pupils must wear masks at the show, except those who were unable to do so for physical reasons or if it caused them distress. At the time the school didn't require children to wear masks in the classroom.
After the show, Ms Stephenson alleged that both Ms Hawker and Mr Howlett refused to let any of their class wear masks. She said that when she questioned Mr Howlett about this, he said that they felt restricted by them and he believed that they didn't need to wear them.
No formal action was taken against Ms Hawker, but Mr Howlett was suspended on full pay during an investigation into these two incidents.
The day after the investigation meeting, Mr Howlett received a letter inviting him to attend a disciplinary hearing two days later. He was ultimately dismissed, and his appeal was unsuccessful.
He brought a claim for unfair dismissal.
The tribunal's decision
It held that the school had dismissed Mr Howlett for what they considered to be gross misconduct, which was a potentially fair reason under s.98(2) of the Employment Rights Act 1996. It then went on to consider whether the school genuinely believed that Mr Howlett had committed misconduct and if there were reasonable grounds for that belief.
… the investigation
The tribunal was “troubled” and “suspicious” that the school hadn't kept or disclosed any records about the initial fact-finding, the investigator's appointment, the running of the investigation, and that no investigation report was produced. The investigator hadn't interviewed key witnesses such as Ms Stephenson, the Health & Safety Officer, who was central to both incidents.
It therefore found that the investigation was inadequate, and it was unreasonable for the discliplinary manager to rely on it.
… the disciplinary procedure
The disciplinary process was flawed. It did not comply with the basic requirements of fairness set out in the Acas Code of Practice. In particular the person responsible for conducting the disciplinary hearing appeared to be asking questions formulated by someone else and didn't appear to understand the issues.
The tribunal held that the appeal made a bad process worse. The decision to dismiss Mr Howlett was not critically evaluated, reviewed, or tested. The appeal also failed to identify or address the investigation's shortcomings. The appeal chair was given documents that hadn't been shared with Mr Howlett, and they let their knowledge of past incidents influence their decision on the appeal.
While processes followed throughout had the appearance of a fair process (letters providing notice of meetings, opportunities for colleagues to accompany Mr Howlett etc.), the tribunal found that the process itself was mostly undocumented, unmanaged and rushed, and there was a lack of challenge and analysis on the part of the decision maker and the appeal panel.
Did the school's decision to dismiss fall within the range of reasonable responses?
No. The tribunal noted that the policy on taking children on educational visits was out of date and didn't reflect the new consent process. It said that the inept and negligent introduction of an electronic system by school management led to a situation where there was no guidance in place, no way for teachers to check parental consents, or for the SLT to double check the consents. At no point did the school recognise that there was an issue for which the school was partly responsible and which their systems (at least) partly caused.
The tribunal found that Ms Hawker failed to follow the policy and had approved it without checking that the supporting information was in place.
The school also didn't consider if Ms Stephenson was at fault - she knew that consent forms were missing and that teachers had no access to the new electronic system, yet she didn't do anything about it. It concluded that the school's decision to dismiss Mr Hawker “was dishonest and opportunistic” (it was restructuring and getting rid of a teacher saved costs). It was therefore both procedurally and substantively unfair.
A hearing will be scheduled to determine remedy.
Lessons to learn
The root of the issues in this case lie in the school's outdated policies, unclear procedures and chaotic leadership. The school was rated inadequate by Ofsted, had financial difficulties and was going through a restructure. The senior leadership team appear to have been fighting amongst themselves like ferrets in a sack and there were various allegations of bullying made by and against them. In short it was a disfunctional team.
Some of the lessons to be learned from this case should be obvious. If you decide to introduce a new system or policies, you need to make sure that they are clear and that you explain what has changed to your staff. Keep records of what you have said and any training that you've provided.
More generally, if you have concerns about a staff member's conduct, it's important not to act too hastily simply because the allegations may be relevant to safeguarding. Following a fair process is crucial. The ACAS Code of Practice on disciplinary and grievance procedures sets out the key principles for disciplinary procedures. Given that tribunals can adjust any awards by up to 25% for unreasonable failure to comply with any provision of the Code, it's important that you adhere to it.
- The first step is a thorough investigation to gather all facts and evidence. In this case, no one understood the processes and procedures, and important witness statements were not obtained. A thorough investigation lays the groundwork. It's crucial to get it right; skipping it or rushing this step means that you are starting on the wrong foot which can be difficult (although not impossible) to rectify later.
- After the investigation, if there is a case to answer, the employee should be fully informed of the alleged misconduct, provided with all evidence, and given reasonable time to prepare for the disciplinary hearing. Here, the school arranged the disciplinary hearing and appeal hearings so quickly that the tribunal repeatedly said that the process was rushed.
- The employee is entitled to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union, so you need to explain this to the employee in the invite letter.
- Make sure the disciplinary manager understands their role and has received appropriate training about how to conduct it.
- At the hearing, go through the complaint against the employee and the evidence. Give the employee the opportunity to set out their case, answer the allegations, ask questions, present evidence and call relevant witnesses.
- After the hearing, carefully decide what the appropriate and reasonable outcome should be. Communicate the decision and its reasons to the employee as soon as possible, and ensure they have the opportunity to appeal.
Day one unfair dismissal rights on the horizon. We recommend that you start to prepare now by ensuring that your senior leaders understand the basic requirements of a fair dismissal, receive training on how to investigate and conduct a hearing and appeal. The school in this case got almost everything wrong, partly because its HR advisors, appear to have given the school very poor advice.
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