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Mrs Smith was a teacher at an independent school in Wales. She was employed by the school from 01 September 2013 until her dismissal for gross misconduct in January 2021.

Mrs Smith’s dismissal for gross misconduct related to an incident that took place during the COVID-19 pandemic in December 2020, whereby Mrs Smith asked a student with additional learning needs to leave her classroom because he had removed his mask to have a drink without asking. Mrs Smith then forgot that the pupil was outside of her classroom and, when reminded of this by another pupil, left her class unattended to go and look for him. Concerns were raised by Mrs Smith’s colleagues and the school determined that this was a safeguarding issue that meant Mrs Smith should be suspended pending investigation and that a referral should be made to the Local Authority Designated Officer (LADO).

Mrs Smith was dismissed following a full disciplinary process, and subsequently brought a claim before the ET for automatic unfair dismissal under section 100(1)(e) Employment Rights Act 1996 (ERA 1996). Mrs Smith sought to argue that by sending the pupil out of her classroom she had taken appropriate steps to protect herself from serious and imminent danger. She also brought a claim for ordinary unfair dismissal under section 98 ERA 1996.

The ET found that Mrs Smith was dismissed due to her conduct which is a potentially fair reason for dismissal under the ERA 1996. It then turned itself to whether Mrs Smith had satisfied the evidential burden in establishing that her actions in sending the student out of her classroom fell within the protection of section 100 ERA 1996.

The ET first asked whether Mrs Smith believed there were circumstances of serious and imminent danger at the relevant time. In considering this question, the ET looked at the relevant government guidelines in place at the time and the school’s compliance with those. The ET found that no guidelines had been breached by the student taking his mask off to have a drink and that the school had put in place the recommendations of the Welsh Government in relation to COVID-19 at the time, and that Mrs Smith was fully aware of this. Mrs Smith had been supported by the school in being able to ask pupils to wear a mask in her class by virtue of an agreed individual risk assessment.

The ET also took into account that Mrs Smith’s son, who also attended the school and who was deemed to be clinically extremely vulnerable, did not wear a mask when at school. Additionally, Mrs Smith’s family (including her son) had travelled to Greece at a time when her son had been advised to self-isolate and in circumstances where it would not have been possible to remain 2 metres apart from others in the enclosed space of an aeroplane.

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.

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