Teacher unfairly dismissed after school dissuaded witnesses from attending hearing, tribunal rules

Employer did not make reasonable efforts given the ‘career ending’ nature of accusations that staff member had used unnecessary force on a child

A teacher was unfairly dismissed after her employer failed to make reasonable efforts to encourage witnesses to attend disciplinary hearings, a tribunal has ruled.

The Swansea Employment Tribunal found Miss S Lewis, who taught at Tairgwaith Primary School, was unfairly dismissed after the school discouraged witnesses from attending a disciplinary hearing, investigating her use of unnecessary force on a child, that was “likely to be career ending”.

However, because the tribunal found Lewis had in fact used unnecessary force, the basic award and compensation for her dismissal was reduced by 100 per cent. Other claims of disability discrimination and victimisation were dismissed.

Lewis worked for Tairgwaith Primary School from September 2001 until her dismissal in September 2017.

The tribunal heard that in early 2016 a complaint was made about Lewis hitting a pupil (known as Child A) on the head with a book. The school’s headteacher, Nigel Thomas, did not believe the account to be true but passed the complaint to a Professional Abuse Strategy Meeting (PASM) as he had no evidence to contradict the complaint.

Believing her to be innocent, Thomas did not suspend Lewis. But he did place a teaching assistant in the classroom alongside her to reduce the risk of further complaints.

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In March 2016 a second complaint was made against Lewis by the mother of another pupil (Child B) after Lewis allegedly grabbed the child and pulled them to the floor. The mother of Child B had an initial conversation with Lewis about the event, but it was only after the mother was then advised by a teaching assistant to speak to someone more senior that she reported the incident to Thomas on 17 March.

The complaint involving Child B was passed on to PASM, and on 10 January 2017 PASM concluded the incident involving Child A was not substantiated, but that the incident with Child B was. The PASM advised Tairgwaith Primary School to consider whether any disciplinary issues could arise. 

The tribunal heard Thomas instigated an investigation by a specialist child protection organisation (SERVOCA) on the advice of HR on 16 January. Based on the evidence from this investigation, the tribunal concluded Lewis had pulled Child B, a child with “clear difficulties in communication and with specific needs”, to the floor to prevent them from wandering within a classroom. 

The final disciplinary hearing was held on 7 June, and an appeal hearing was held on 22 September. At both the disciplinary hearing and the appeal, Lewis sought the attendance of two teaching assistants who had given evidence of her mishandling Child B, but the witnesses did not attend.

In both the disciplinary and the appeal, Lewis was found to have mishandled Child B and to have failed to report she had done this. The assault amounted to gross misconduct, and Lewis was dismissed following the appeal hearing on 22 September. 

However, at the tribunal hearing, one teaching assistant testified she was willing to take part in the disciplinary and appeal hearings, but was “discouraged from attending” by the school, who told her she did not have to. As a result, the tribunal ruled Lewis was unfairly dismissed as Tairgwaith Primary School did not make reasonable attempts to ensure the attendance of witnesses Lewis had asked for during the disciplinary and appeal hearings. 

The tribunal stated that “where a decision was likely to be career ending, and there was such a difference in testimony”, a reasonable employer would have made efforts to ensure witnesses attended after Lewis had requested this.

It also found Tairgwaith Primary School’s decision to rely solely on the SERVOCA report “fell outside what a reasonable employer would do in these specific circumstances”. 

Andrew Willis, head of legal at HR-inform, said when considering allegations of a potentially career-ending nature, it was all the more critical for employers to follow correct procedures. “As seen here, when there are discrepancies in the information being presented by the employee, hearing evidence from as many involved individuals as possible can ultimately help employers to make the best and most informed decision,” Willis said.

“If a full and fair investigation into these allegations is not conducted, such as interviewing all witnesses present and not just those who will lead to the outcome the company wants, the dismissal could easily be found to be unfair.”

A spokesperson for the governing body at Tairgwaith Primary School said it acknowledged the employment tribunal’s ruling. Lewis could not be reached for comment.