ET awards £102,000 against academy trust for "disproportionate" reaction to safeguarding incident

The Employment Tribunal has awarded a headteacher more than £102,000 from the trust that employed her for nearly 20 years after she was sacked for tapping her three-year old son’s hand.

Shelly-Ann Malabver-Goulbourne was employed by Arbor Academy Trust as headteacher at Northwold Primary School in Hackney.

One day she remained at the school after hours with her children, aged three and 11, both of whom were pupils there. With them was Ms Bhagwandas, the designated lead for safeguarding.

Ms Malabver-Goulbourne’s three-year-old son began playing with bottle of hand sanitiser and she took this from him and tapped his hand, which she said was a gesture to get his attention.

But Ms Bhagwandas concluded an assault had taken place and raised the matter with the chief executive of the trust, later making a formal complaint.

She completed a ‘cause for concern’ form to report a safeguarding incident and said she had seen Ms Malabver-Goulbourne smack the child on the hand.

A meeting was convened by the trust to consider the matter and Liezel Le Roux, the local authority designated officer for Hackney, made a referral to the police child abuse investigation team.

The police eventually concluded this was not a matter for them as nothing beyond reasonable chastisement had occurred, which could be appropriate because the child was in possession of a chemical, which could have caused irritation to his eyes.

A trust disciplinary panel was convened and this resolved to dismiss the head due to its belief that “as headteacher, she may not deal with a similar situation in the appropriate way, consequently, we felt that we had lost trust and confidence in her and that this meant that we had no option but to dismiss”.

Ms Malabver-Goulbourne appealed through the trusts’s procedures on the grounds that this penalty was grossly disproportionate, that parts of the evidence had not been considered at all or properly, that there were underlying personal reasons for her dismissal and that in the circumstances, the decision to dismiss her was outside the band of reasonable responses and therefore unfair. Her dismissal was though confirmed.

Employment Judge Jones said in her judgment: “There was no consideration as to whether the claimant’s touch of her son by tapping him on the back of his hand, when he turned away from the claimant when she was trying to talk to him about the dangers of hand sanitiser, could be considered to come within the exceptions to the Code of Conduct or the Guidance or safer working practices.

“The panel refused to look into this in coming to its conclusion that the claimant had assaulted her son.

“It is therefore this tribunal’s judgment that the [trust] did not have a reasonable belief that the claimant had committed gross misconduct.”

Judge Jones said it was likely that Ms Bhagwandas’ opinion was that it did not matter why the claimant tapped her son’s hand and that there were other ways of approaching any concerns about the child’s safety with the hand sanitiser.

“However, the question for the disciplinary panel was not whether there were other ways of addressing what she had done but whether in addressing it as she did, she assaulted him,” the judge said.

"Like Ms Bhagwandas, the panel considered that it did not matter the reason for the claimant’s physical contact with her son. But this tribunal’s reading of the exceptions outlined in the Guidance document and set out in the dismissal letter is that after the panel concluded that there had been physical intervention by the claimant, it had to go on to consider whether the circumstances of that physical intervention came within the stated exceptions.

“To say as the panel did, that ‘we did not consider that any of the above applied’ without discussing how they did not apply, demonstrated to this tribunal that they had not given any or sufficient consideration to the claimant’s explanation of why she tapped her son on his hand.”

Judge Jones concluded there was insufficient evidence of gross misconduct and the panel’s finding was not based on reasonable grounds and cannot stand.

Ms Malabver-Goulbourne was awarded £102,328.80, a sum that had been reduced by 20% to reflect her contribution to the situation that led to her dismissal.

The trust has been contacted for comment.

Mark Smulian