Was it unfair to dismiss a teacher for allegedly ‘locking’ a pupil in a cupboard?
Mr Basit had worked as a mathematics teacher at Pleckgate High School since 2016. His appraisals were consistently good, his management style was praised, and his pupils made good progress. His teaching style was to use light-hearted humour and his behaviour management techniques included asking a pupil to stand up, switch seats, go to the back of the class or wait outside. Mr Basit had a clean disciplinary record.
On 10 January 2020, Mr Basit was teaching a year 9 class. This was a low ability class and many of the pupils in that class had behavioural issues. Four pupils – B, C, D and E – arrived late to the mathematics lesson and received a punishment. Later in the lesson, Mr Basit noticed that pupil A was not engaged and appeared to be falling asleep. Mr Basit asked him to stand at the back of the classroom, which was one of his normal management techniques. At the back of classroom there was a large cupboard and Mr Basit made a comment to pupil A, which resulted in pupil A getting into the cupboard.
After the lesson, pupils A, B and C complained to the headteacher, about the cupboard incident. Pupil B told the headteacher that Mr Basit had forced pupil A into the cupboard and pupil A said that Mr Basit had locked him in.
The headteacher took statements separately from each of the three pupils. The three statements alleged a significant number of potentially unprofessional incidents in class relating to the afternoon of 10 January. There were both inconsistencies between the statements and similarities.
As a result of these statements, an investigation was started.
Disciplinary investigation
On 13 January 2020, Mr Basit was taking form time. During that period, Mr Hamilton, deputy headteacher and designated safeguarding lead, asked Mr Basit if anything had happened during period 5 on 10 January regarding the class cupboard.
Mr Basit told Mr Hamilton that pupil A had got into the cupboard in response to him making a joking remark and he apologised. Mr Hamilton asked Mr Basit to provide a statement about what had happened and to make it clear that it was a joke.
At that stage Mr Basit did not know about the allegations which had been made. He was also not aware that the school was treating the incident so seriously. Mr Basit was not allowed to return to class and was suspended on full pay pending investigation. Ms Robinson, assistant headteacher, was appointed as investigating officer, supported by Ms McGonagle, HR operations manager.
Mr Basit was invited to an investigation meeting on 17 January. At that meeting, Mr Basit emphasised that the comment made about getting into the cupboard was a joke and not an instruction. He said that he had previously joked with the pupil and others that they kept finding themselves standing by the cupboard. Mr Basit also admitted that it was poor humour and that he may have been too relaxed and casual towards the end of the lesson on a Friday afternoon.
As part of the investigation, Mr Basit provided statements from several members of staff and a number of members of the community. The witnesses spoke of Mr Basit in the highest regard and attested to his professionalism, teaching skills and general good character.
An investigation report was written by Ms Robinson with the support of Ms McGonagle. The conclusions were:
- On the balance of probabilities, a pupil entered a cupboard.
- This potentially could have impacted on the pupil’s emotional wellbeing.
- The incident brings into question Mr Basit’s professional judgment.
Disciplinary hearing
The case went to a disciplinary hearing. Mr Georgy, school governor and the trust’s finance director, was appointed as chair and disciplinary officer. He was supported by Ms McGonagle and Ms Howarth, head of HR.
At the hearing, Mr Basit prepared a detailed defence document. In it, he detailed what he felt to be shortcomings in the investigation, which included:
- Inconsistencies in the pupils’ accounts, for instance pupil A said that Mr Basit locked the cupboard, but there was no lock on the cupboard.
- Pupils’ behaviour records had not been obtained. The pupils concerned had poor behaviour records with behaviour management plans in place and Mr Basit felt that consideration should have been given to these records when considering the issue of credibility.
- Insufficient weight had been given to the potential of pupil collusion.
- No weight was given to the positive references made by teaching staff and community members about Mr Basit.
- There was no evidence that entering the cupboard may have damaged pupil A’s emotional welfare.
Regarding the pupils’ behaviour records, Ms McGonagle took the lead on this issue at the hearing, even though she was not the disciplinary officer.
Following the hearing, a letter was sent to Mr Basit dismissing him for gross misconduct. Mr Basit was given the right to appeal, which he did.
Disciplinary appeal
Mr Basit set out his grounds for appeal, which included:
- Inappropriate investigation.
- Procedural unfairness.
- Dismissal not within band of reasonable responses.
- Disregarding mitigation and colleagues’ statements.
The trust proposed to Mr Basit that the appeal be conducted in writing. During the process, Mr Basit asked questions of the panel in writing, which were never answered.
The appeal hearing, which consisted of the panel’s remote deliberations, took place on 6 July. They upheld the finding of gross misconduct. The appeal panel widened the scope of the allegations to include a physical health and safety risk to pupil A, which had never been raised before.
However, the decision was not confirmed to Mr Basit until 22 July. This was about four and a half months after the summary dismissal.
Findings at the employment tribunal (ET)
In A M Basit v Education Partnership Trust, the ET held that Mr Basit teacher had been unfairly dismissed.
In looking at the claim for unfair dismissal, the ET had to consider the following questions:
- What was the reason for Mr Basit’s dismissal?
- If the reason was conduct, did the Education Partnership Trust act reasonably in all the circumstances in treating that conduct as a sufficient reason to dismiss Mr Basit? In particular:
- Did the trust genuinely believe that Mr Basit had committed the misconduct?
- If so, was this based on reasonable grounds?
- At the time the belief was formed, had the trust carried out a reasonable investigation?
- Was the procedure within the band of reasonable responses?
- Did the trust act reasonably in treating the misconduct as sufficient to dismiss Mr Basit?
- Was dismissal within the band of reasonable responses?
Acas
The ET confirmed that the Acas Code of practice on disciplinary and grievance procedures applies to the procedure followed and that also of relevance was the Acas Guide to discipline and grievances at work, which states:
‘The nature and extent of the investigations will depend on the seriousness of the matter and the more serious it is then the more thorough the investigation should be. It is important to keep an open mind and look for evidence which supports the employee’s case as well as evidence against it.’
Investigation did not meet Acas standard
The ET stated that the extent and diligence with which an investigation is required to be conducted is dependent on the circumstances of the case. The more serious the matter and the more serious the consequences for the employee, the more thorough and careful the investigation must be. In this case, there were serious allegations of misconduct relating to safeguarding concerns. The potential consequences for Mr Basit as a teacher were serious, in that his professional career was at risk. The ET concluded that the investigation did not meet that standard.
The ET concluded that the trust did genuinely believe that Mr Basit had committed the acts alleged. However, it held that this was not based on reasonable grounds following a reasonable investigation and was not within the band of reasonable responses.
Significant faults
The ET found that there were significant faults at each stage of the procedure. In addition, when Mr Basit was asked to give his initial statement, he was not told that there was an investigation and that the statement was being taken as evidence. When he was asked to attend an investigation interview with Ms Robinson and Ms McGonagle, Mr Basit was not advised of the potential outcomes. The ET held that these failings were unreasonable.
The ET also considered that Ms McGonagle had overstepped her remit on a number of occasions and ‘ventured into aspects of the actual investigation and disciplinary decision making, thereby exerting improper influence’.
With reference to the appeal hearing, the ET felt that because the process was undertaken by way of written representations, this did not provide a way of properly assessing Mr Basit’s reliability. The ET felt that a remote hearing by video conference could have taken place and that to conduct a wholly written process in the circumstances was unreasonable.
The overall conclusion by the ET was that the trust did not act fairly in dismissing Mr Basit.
Summary
This case highlights the importance of following a full and fair procedure throughout an investigation process. This is particularly important where the allegations are serious and could potentially lead to dismissal. As Acas states: ‘this is for the protection of the employee, the employer and their business’.
Schools should ensure that their disciplinary policy follows a fair and transparent process and that any investigation and subsequent disciplinary hearing adheres to this policy. In addition, schools should ensure that they have followed the Acas code fairly – if a case goes to an employment tribunal, judges will take this into consideration.
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