| SPOTLIGHT |
Was it fair to dismiss a teacher for making one inappropriate comment to a pupil? That was the issue the tribunal had to determine in a recent case. Joanne Moseley examines the outcome.
In G Coleman v Doncaster Culture & Leisure Trust Mr Coleman worked as a swimming teacher. During a lesson he said to a 10–11 year-old girl that she "looked like she worked out". This comment made the child feel uncomfortable and the school complained to the trust that employed Mr Coleman. He was immediately suspended and was interviewed along with a colleague who was there at the time. Mr Coleman acknowledged that he had made the comment and a disciplinary hearing took place. The trust decided to dismiss Mr Coleman with immediate effect because it concluded that his comment was inappropriate and had caused upset and potential damage to the child (relevant to safeguarding) and had damaged the trust's reputation. The trust then referred the incident to the Local Authority Designated Officer and notified the DBS.
Mr Coleman argued that he had been unfairly and wrongfully dismissed. He said that his conduct was not a safeguarding issue and that the trust had not been legally entitled to dismiss him.
Decision
In respect of the unfair dismissal claim, the tribunal had to determine if the trust had acted reasonably in dismissing Mr Coleman for this incident. It found that the trust genuinely believed that Mr Coleman was guilty of misconduct and had reasonable grounds for its belief because Mr Coleman accepted that he made the comment and that it was inappropriate.
The key issue was whether the decision to dismiss him fell within the range of reasonable responses. The tribunal acknowledged that his dismissal might be seen as 'somewhat harsh' given it was for a first offence and related to a single remark. But it was nonetheless fair. The trust provided swimming lessons to primary school children and the teachers who provided those lessons were in a position of trust. The tribunal accepted that any teacher who behaved inappropriately could cause reputational damage to their employer. There was evidence that the trust's reputation had been damaged: the school immediately complained about Mr Coleman and the parents of the pupil had asked the school to confirm whether he would be teaching the next class before deciding whether their daughter would attend.
In terms of the comment - it had been made by an adult male teacher in a position of trust who had commented about a child's body and physical appearance when she was in swimwear. It demonstrated that Mr Coleman had been observing her physical appearance and that was 'highly inappropriate'.
The tribunal went on to find that it was reasonable to treat the comment as a safeguarding incident in line with its policy which also referenced pupils' mental well-being. That remained the case even though LADO and the DBS subsequently decided not to take action against Mr Coleman.
The tribunal also accepted that it was reasonable for the trust to treat Mr Coleman's comment as gross misconduct. The trust's policy set out examples of behaviour that might amount to gross misconduct which included behaviour which could cause reputational damage.
It also rejected Mr Coleman's wrongful dismissal claim for the same reasons.
Comment
The tribunal judgment doesn't provide any context to help explain why the teacher made this highly inappropriate comment. He'd been employed by the trust for over seven years and there is no suggestion that he had behaved inappropriately before or that the trust had safeguarding concerns about him. His dismissal could be perceived as harsh, but as this case demonstrates, that doesn't mean that it was unfair. The range of reasonable responses test is wide enough to encompass different responses and recognises that different employers will choose different options. On these facts, another employer may, for example, have given Mr Coleman a final written warning and provided additional training to ensure that he didn't make any other personalised comments about pupils' appearance or their bodies rather than dismissing him.
Joanne Moseley is a Senior Associate Solicitor at Irwin Mitchell.
