The Education Law Digest: Winter Term Edition – In the Employment Tribunal

Teacher misconduct

In the case of Mr Z Raja v Summit Learning Trust:

• The Claimant, Mr Raja, commenced employment with the Respondent, a multi-academy trust, on 4 November 2019 as a maths teacher at one of its secondary schools.
• In 2021, the Claimant was emailed a copy of the Respondent’s Disciplinary Policy, which provided examples of gross misconduct, and Staff Code of Conduct and was given safeguarding training.  In September 2021 he received child protection training which expressly states that it was prohibited to communicate with children under any circumstances via a mobile phone.
• In June 2022, the Claimant emailed a maths test paper to Student A. She was not in his class at the time and he did not email any other students the maths test paper. He later emailed Student A his personal mobile phone number. On 15 June 2022 Student A raised a verbal complaint about the Claimant sending her the maths test, buying her a book and trying to touch her on her leg – but did not mention the mobile number.
• The Respondent’s Designated Safeguarding Lead (DSL) spoke to the Claimant about his behaviour towards Student A.  The Claimant explained that he loved the students like his own children. He omitted to tell her that he had sent Student A his personal mobile phone number.  The DSL followed this up by email to advise the Claimant to act more formally as his conduct may be misconstrued.  The Claimant then sent his personal email address to two more students.
• On 30 June 2022 Student A went to the pastoral room and said she wanted to be alone as she was upset. Shortly afterwards the Claimant entered the pastoral room and asked if he could speak to Student A. He was advised not to but went in anyway and had a discussion with Student A. The pastoral manager felt that this discussion was not welcome.
• On 1 July 2022 Student A raised a formal complaint about the Claimant’s behaviour, stating that in addition to her earlier allegations, he had told her he loved her.  The Claimant was told to stay away from Student A.  On 4 July 2022 he commenced sick leave & Student A informed the Respondent that the Claimant had also emailed her his personal phone number.  On 6 July 2022 the Claimant was suspended on full pay due to allegations and the Respondent investigated. Student A’s mother complained about the Claimant’s inappropriate conduct.
• During the investigation the Respondent discovered 50 emails sent by the Claimant to Student A, B and C, over a three-month period.  In these emails the Claimant suggested that they walk to school together and described Student A as ‘an angel’ and Student C as a ‘lovely girl’.  These emails were often sent outside of school hours.  The Claimant did not deny sending the emails or providing his email address but asserted that he had sent his email in case the students needed a personal reference.
• A disciplinary hearing took place on 6 October 2022.  The Claimant stated that he had not read the disciplinary policy.  The Respondent found that the Claimant had breached the teacher code of conduct and disciplinary policy by attempting to form an inappropriate relationship with Student A and being overly familiar with Students A, B and C and that he had brought the Respondent’s reputation into disrepute. The Claimant was dismissed for gross misconduct on 12 October 2022.
• The Claimant appealed this decision which was subsequently rejected by the Respondent.
• The Claimant brought a claim for unfair dismissal.  The Employment Tribunal found the Respondent’s reason for dismissal was misconduct, which is a potentially fair reason for dismissal. The specific instances of misconduct included the Claimant sharing his personal mobile phone number with Student A and the familiar tone he took with the three students in his emails which was in breach of the Respondent’s safeguarding training and through which he was trying to form an inappropriate relationship.  The fact that the Claimant had not read the disciplinary policy was irrelevant – this did not excuse his conduct.
• Having taken all of the misconduct into consideration, the Judge found that there was evidence to conclude that the Claimant’s conduct had the potential to bring the Respondent trust into disrepute. Student A’s mother had complained about the Claimant’s conduct towards her daughter. There was therefore the risk that the Respondent’s reputation was brought into disrepute.

This is not a ground-breaking case but it shows the importance of having clear policies in place and is a rare decision where damage to reputation was successfully relied on.

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Take Me There

The importance of a reasonable investigation

In the case of Mr Jonathan Hawker v Devonport High School for Girls the Employment Tribunal awarded £45,000 to a teacher who was dismissed after it found that the school had not conducted a reasonable investigation before it dismissed him.  The case was particularly complicated as it involved a number of different pupils who had openly discussed the allegations.  Importantly, the School did not make the Claimant aware of evidence that the allegations had been made up ‘for fun’ so that the teacher would lose his job, had not made detailed notes or complied with its internal policies:

• The Claimant, Mr Hawker, began working for Devonport High School for Girls in March 2017 as a maths and computing teacher.
• On 23 June 2021, a student (Student N) provided her teacher with a statement explaining that Student H had told her that the Claimant had touched her leg.  Student N’s statement was not in the investigation report or tribunal bundle.  Student H admitted that she had spoken to Students N, X and G about it and that it was possibly witnessed by Student W.  She confirmed that the Claimant had put his hand on her thigh.  The Investigator, the School’s DSL, took a contemporary but not a verbatim note.  Student H later left the School and was said to be unreliable by her father but this was not included in the investigation.
• Student X admitted that Student H had told her about the allegation but she had not witnessed but had heard other gossip (which the school acknowledged was untrue) about the Claimant.  Student W had not witnessed it either but thought Student O may have seen it and that Student G had also been touched on the leg by the Claimant and that Student G had conducted a ‘survey’ about who the Claimant had touched.  Student O stated that she had not seen anything.
• None of the notes of the discussions were signed.  Detailed statements were not taken and key information, such as dates or the lesson attended, was missing so the Acting Headteacher asked the Investigator to take statements.  The Investigator spoke to entirely different students (D, E, F and G) & allowed them to produce their own statements, rather than ask them questions and produce a statement or transcript.  These statements lacked dates and key information.  It was not clear what prompted these students to come forward as these students had not been named by anyone else and they were not questioned about this.  The Investigator explained that she had not asked questions of the students for fear of contaminating their evidence.
• The evidence provided was confusing and contradictory, with each student naming other students who had witnessed or had witnessed the Claimant touching their thighs or stroking their arms.  There was also a possibility that some of the students were friends but this was not investigated.
• On 28 June 2021, the Claimant was suspended. He was given little detail concerning his suspension, only that it regarded an allegation of misconduct pending a LADO (Local Authority Designated Officer) investigation.
• On 9 July 2021, older students L & M reported that they had conversed with some younger students who admitted that they had tried to get the Claimant fired “for fun” by telling people that he had touched their thighs. LADO asked the school to speak to L & M.  L & M were unable to identify the younger students but no notes were taken of this discussion.
• On 1 September 2021, the Claimant was arrested for two offences of sexual activity as an adult in a position of trust. This was the first time the Claimant was made aware of the allegations against him.
• In November 2021, the Claimant was advised the school was undergoing an internal investigation. Pupils were interviewed in the presence of their parents but without the Claimant’s representative in attendance.  The School’s policy permitted this but stated that a transcript should be provided in these circumstances.  Whilst notes were provided, they were not a transcript.
• During the second investigation, their original statements were read out to the students.  Student D withdrew her allegations (including that he had massaged her shoulders and now said that he had put his hand on her shoulder for seconds, not minutes) and no longer wanted to be involved, whilst E, F and G made additional allegations.  Student H was not interviewed but no notes were taken to explain why (during evidence it was explained that the pupil had left the school) but her father felt she was unreliable.  L & M were not spoken to and, crucially, their evidence was not referred to in the final investigation report other than to say that L & M had ‘overheard’ comments about the Claimant being set up but were unable to identify the students involved. The students making the allegations were not asked about L & M.
• The Investigator did not speak to students who had not made allegations to see what they had or had not witnessed nor did she speak to a witness the Claimant asked her to speak to.
• In December 2021 the Claimant was interviewed,  He denied the allegations and said the students had concocted these stories because he had told the pupils off previously.
• The Investigator concluded that, despite the conflicting statements and the older student’s reports (which the Tribunal found were misrepresented in the report), the Claimant had overstepped the boundaries and failed to consider student welfare.   The report did not reference the Claimant’s denials and the appendices were so heavily redacted that it was difficult to understand who had said what.
• The Claimant was dismissed for gross misconduct in February 2022. In March the police advised that they would not proceed with the criminal charges.  The Claimant subsequently made a very detailed appeal.  On 1 April 2022, having received the statements of L &M and amended statement from the Claimant, the Teachers Registration Authority allowed him to return to teaching without further investigation.  In April and May 2022 his appeal was heard but rejected.  In June 2022 the Claimant issued a claim in the Employment Tribunal.
• The Tribunal noted it is more important to undertake a thorough investigation when the allegations are particularly serious.
• The Tribunal accepted that the School had to balance the students’ needs with those of its staff but found that the School’s investigation was not reasonable.  The School should not have dismissed the evidence of L & M, had mispresented that evidence, had not interviewed other students in the class, did not provide transcripts and had not spoken to the Claimant’s suggested witness and the investigation report omitted key facts, such as why H was no longer part of the investigation or that L & M’s evidence supported the Claimant.  The Investigator unquestioningly accepted the evidence of the students, not understanding that there is a difference of approach when handling a safeguarding disclosure and an investigation.
• The Tribunal found that no reasonable employer could have reached a conclusion of gross misconduct on the basis of the evidence provided.  It did not apply a Polkey reduction (a reduction to reflect what would have happened if a proper investigation had taken place) in compensation as the evidence supplied was too unreliable.  The Claimant was awarded £45,000 i.e. the basic award and his annual salary.

The case highlights the importance of conducting a fair and thorough investigation and also the school’s duty of care for not only the pupils but also its staff members.