Headteacher successful in unfair dismissal claim for tapping her own son's hand

In the case of Ms Malabver-Goulbourn v Arbor Academy Trust the Employment Tribunal found that a Headteacher of a Primary School was unfairly dismissed as her behaviour resulting in her dismissal did not amount to gross misconduct.

The Claimant, Ms Malabver-Goulbourn, had been Headteacher at one of the Respondent's, Arbor Academy Trust, schools since 2017, having worked for the Respondent since 2005. Both the Claimant's children attend the School where the Claimant worked. On 17 January 2022 an incident occurred, outside of school hours, in the Claimant's office. Present at the time was a colleague of the Claimant, Ms Bhagwandas. The incident involved the Claimant's 3 year old son taking a bottle of hand sanitiser and squirting it on the floor. The Claimant responded to this by taking the hand sanitiser out of her son's hand and proceeded to tell him about the dangers of the substance. In her attempt to talk to her son he turned away from her, in response to which the Claimant apparently tapped the back of his hand with two fingers to regain his attention.

The witness, Ms Bhagwandas, was the Designated Safeguarding Lead the School and she reported the incident 2 days later as a 'cause for concern' and a 'safeguarding incident.' In this report she stated that the Claimant told her son she was going to smack him on the hand and then proceeding to smack him causing him to cry. Following the incident, the Claimant was suspended from duty, taken to a disciplinary hearing and ultimately dismissed. With regards to the procedure followed, the Trust appointed an external HR investigator who was also a child protection social worker. The investigator ultimately found that in terms of the allegation of assaulting a pupil on school premises, there was a case to answer. Following a hearing, the decision makers found that the action of the Claimant constituted gross misconduct which reflected on both the School and the Trust. They stated that they believed the Claimant had failed to demonstrate her ability to follow safeguarding guidance as a role model within the Trust.

The Claimant brought a claim in the employment tribunal challenging the fairness of her dismissal.

The tribunal found that the Claimant was unfairly dismissed. It found that the Claimant's response to her son picking up the hand sanitiser fell within one of the Respondent's exceptions to physical contact as set out in its Code of Conduct and Guidance for Safer Working Practices. Essentially, the Tribunal found that the Claimant was trying to prevent her son from injury following a prior incident with hand sanitiser. The tribunal held that the Respondent had failed to look into the Claimant's reasoning for her actions and therefore the Respondent could not have held reasonable belief that the Claimant had committed gross misconduct.

The tribunal further stated that the Respondent did not have reasonable grounds to conclude that the Claimant had assaulted a child and the decision to summarily dismiss the Claimant on that basis did not fall within the band of reasonable responses. The tribunal did make a deduction of 20% to the Claimant's remedy on the basis that the Claimant had dealt with the situation as a parent and not as a Headteacher, finding that if she had done the latter she would have acted differently if the pupil was not her child.

This case raises interesting points around the dual role of parent and teacher which can arise in situations where staff members have children who attend their schools. This is not uncommon, but where such a situation arises, schools and trusts should be very clear around expectations around behaviour and conduct. The Employment Judge hearing the case found that the Trust's Code of Condict did not prohibit any physical contract whatsoever, as it recognised that in come circumstances physical contact might be necessary for the prevention of harm, to a child, to others or to property. The Judge went on to find that it would be 'difficult' for the Claimant to abide by an absolute ban on touching her own children.

This case is also a useful reminder of the test for unfair dismissal that schools and trusts ought to be mindful of. Employers must remember to act reasonably when deciding to dismiss an employee. They need to consider whether the dismissal falls within a "range of reasonable responses." In this particular case, the failure of the School to fully investigate, consider and give weight to the Claimant's perspective and justification for her actions proved to be fatal. This case highlights the need to consider all aspects of an incident in order to fulfil the reasonable requirement, especially in cases which involve safeguarding concerns.