‘Heat of the moment’ resignations and dismissals
The EAT held that an Employment Tribunal erred finding that an employee’s resignation in the heat of the moment was really intended.Read more
In the case of A (Headteacher) -v- Essex County Council and others, the claimant was a headteacher who had worked in the education field for a number of years. No concerns had previously been raised about him in a personal or professional capacity. However, in June 2018, he was arrested in his office at school on suspicion of him sexually abusing a number of children whilst at work. Seven children in total had made allegations against him, all of which he denied.
Following a criminal investigation, the claimant was charged by the police and matters progressed to the Crown Court. During the criminal proceedings, due to issues with how initial interviews with the children had been dealt with by the police and a social worker involved in the investigation, there were issues with the reliability, and subsequently, the admissibility of key evidence. The Crown Prosecution Service subsequently offered no evidence, such that the claimant was ultimately acquitted of all charges by the Crown Court.
Regardless of this, Essex County Council stepped in to take the place of the school’s governors, who the Council were concerned would not be impartial, and began a disciplinary investigation into three allegations against the headteacher. Those allegations were:
The Council instructed an external HR consultant to undertake a disciplinary investigation, together with a child protection expert to provide key evidence on the allegations made by the children and the criminal investigation.
Following completion of the investigation, which included interviewing the child protection expert and other relevant adult witnesses including the claimant himself, the investigating officer formed a view on the evidence and recommended progressing matters to a disciplinary hearing. A disciplinary officer was appointed, and a hearing held. Following that hearing, the disciplinary officer found all three allegations to be upheld. Ultimately, the claimant was dismissed by the Council and whilst he appealed that decision, the dismissal was upheld. This led to the claimant bringing claims in the employment tribunal for unfair dismissal.
In hearing the case, the tribunal heavily criticised the approach taken by the Council and in particular the disciplinary officer.
The tribunal specifically criticised the disciplinary officer for taking a “linear approach” to the evidence, suggesting that it would have been more reasonable for her to have considered the evidence as a whole, rather than deciding on one matter based on evidence she had thus far read and then failing to properly consider other relevant evidence as a result of this. The tribunal felt that this led the disciplinary officer to misunderstand the evidence. The disciplinary officer in this case concluded it was the claimant’s word against the word of the children who had made the allegations and, in those circumstances, on the balance of probabilities, there was a probability that he had behaved inappropriately towards them. The tribunal found that in light of the fact there were numerous witness statements from adults challenging the children’s accounts, this was plainly not true, but that it had clouded the judgement of the disciplinary officer.
In addition, the tribunal felt it unfair that the claimant was unable to put questions to the independent child protection expert who was not called as a witness at the disciplinary hearing because it was felt the investigating officer, who was present at the hearing, could answer any questions relating to that expert witness.
The disciplinary officer was further criticised for not considering key legal arguments about the reliability of the witness evidence of the child that the claimant’s QC had prepared for the criminal proceedings. During the disciplinary process, the disciplinary officer felt that there was no need to consider these written submissions on the basis that she did not think that the Crown Court judge had considered them and so they were not relevant to matters at hand. The tribunal found that, not only had the Crown Court judge clearly taken account of the submissions, but it would have been reasonable for the disciplinary officer to consider them even if the judge hadn’t, as the claimant had presented them as part of his defence to the disciplinary proceedings.
The tribunal confirmed that “what was required was a reasonable and careful evaluation” of the evidence, including the quality of that evidence. In this particular case, the tribunal felt that the disciplinary officer was simply “shooting from the hip”.
This case provides very clear guidance on how not to run a disciplinary process. Firstly, where policies allow or require witnesses to be called, and particularly in extremely serious cases, all relevant witnesses should attend the disciplinary hearing to allow the employee to put questions directly to them. Secondly, disciplinary officers should, rather than taking evidence in a linear matter, consider the relevant evidence as a whole, including the quality of the evidence obtained. This allows any weaknesses to be identified and addressed either at an early stage during the disciplinary hearing or through further investigation following the hearing.
The case is now set to be listed for a remedies hearing, although it is understood that the Council is taking legal advice on the prospects of appeal.
For advice with disciplinary proceedings, please do not hesitate to contact one of the Employment team on 01332 226 155 or by filling in the form below.
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