Taking all of the above into account, the ET held that Mrs Smith did not believe she was in imminent risk of serious danger. Going further, the ET held that even if she did have that belief, it would not have been an objectively reasonable one given the steps taken by the school to mitigate the risk of COVID-19 and in light of the Government’s guidelines in place at the time which deemed it safe to re-open schools.
Mrs Smith’s claim for automatic unfair dismissal therefore failed.
In considering Mrs Smith’s claim for ordinary unfair dismissal. The ET turned itself to whether the school genuinely believed Mrs Smith was guilty of the misconduct as alleged during the disciplinary process. Given there was CCTV evidence confirming the events that took place and the fact the school had very clear policies in place around safeguarding, the ET felt that the school did have a genuine belief in Mrs Smith’s guilt.
The ET then considered whether the belief was reasonable, considering the investigation that had taken place. Mrs Smith argued that the investigation was not reasonable as both the investigating officer and appeal officer had prior involvement in the case. The ET found that this involvement was limited and given the relevant levels of seniority of both the investigating officer and the appeal officer, it was appropriate for each to be involved in their respective parts of the disciplinary process. Beyond that, the tribunal found that a detailed investigation had taken place which addressed the relevant issues.
Finally, the ET looked at whether the decision to dismiss fell within the range of reasonable responses. It determined that the decision fell towards the more severe end of the range of reasonable responses, given the very serious nature of the allegations and the fact these related to safeguarding, particularly in light of Mrs Smith’s apparent lack of attrition for her actions. The ET commented specifically that both the disciplinary officer and appeal officer had given a great deal of consideration to the evidence and the potential sanctions.
Whilst this case is not binding on other tribunals, it does provide employers with a good illustration of both the key elements to a section 100 ERA 1996 claim in the particular context of the COVID-19 pandemic and how to conduct a reasonable disciplinary process. Employers should pay particular attention to the tribunal’s comments regarding the seniority of those undertaking disciplinary processes, with those dealing with appeal processes ideally being more senior than those making the initial disciplinary dismissal.