Posted by Lauren Harkin, Partner
Dealing with a disciplinary when there are safeguarding issues
There are important considerations for Schools when contemplating dismissing a member of staff when there are safeguarding issues. If, for example, a School is contemplating the dismissal of a member of their teaching staff on grounds of misconduct, if the allegations are proven and the individual is summarily dismissed, the consequence of that dismissal is likely to be that the individual will not work in their profession again.
If an employee is dismissed and brings a claim for unfair dismissal in the employment tribunal, the test for establishing whether the dismissal was fair or not is called the band of reasonable responses test. It is inevitable that different employers will choose different options in disciplinary matters, spanning from informal warnings to summary dismissal. So the question the Employment Judge will ask is “Did the employers action (dismissal) fall within the band (or range) of reasonable responses open to them?”
In two recent decisions of the Court of Appeal, Elias Lord Justice repeated the test for establishing whether a dismissal was fair or unfair, namely whether a reasonable employer could have acted as the employer did. However, Elias Lord Justice goes on to state that more will be expected of a reasonable employer where the allegations of misconduct, and the consequences to the employee if they are proven, are particularly serious.
This means that if an employment tribunal is critical of an apparently perverse approach by a School’s dismissal, they may be able to find the decision of the School unfair where in usual circumstances they would not. Special attention should therefore be given when considering summary dismissals of teaching and medical staff.
This article is an overview of the legal position and specific advice should always be taken. For any questions on this or other employment issues at schools, please contact Lauren Harkin by email firstname.lastname@example.org or by telephone 01793 507667.