Teaching assistant unfairly dismissed for hugging a pupil
An interesting case involving child safeguarding has recently found a teaching assistant was unfairly dismissed in circumstances where she hugged a child.
Mrs Willmott was employed as a teaching assistant working for the Pioneer Learning multi-academy trust. In 2019, she was assigned to provide support to a child with special needs. Mrs Willmott had received suitable training to work with pupils with special needs and the child’s behaviour she was assigned to was described as often being challenging and disruptive.
Prevent an outburst
Further to this challenging behaviour, in January 2020, the pupil was moved from the trust school’s main teaching room to the ‘nest room’ to be supervised. This continued for a few days and, further to one particular outburst from the child, Mrs Willmott, in seeking to prevent the child from harming himself, placed her arms around him to ‘prevent an outburst’ before it started.
She was called to a meeting on 23 January 2020 to discuss the incident and she was accused of inappropriately both hugging and kissing the child. She strongly denied the accusation that she kissed the child but admitted to hugging him to calm him down.
Before that meeting, the head of school had taken advice from the LADO (Local Authority Designated Officer) who had suggested providing a management instruction to Mrs Willmott providing there was acceptance on her part as to what happened regarding the hug.
It was Mrs Willmott’s belief that her actions in hugging the child were in accordance with the trust’s Restricting Intervention and Positive Handling of Pupils Policy.
During this meeting the head of school explained that it was ‘not a disciplinary matter’ and the incident would be dealt with through management advice instead to include some additional ‘in safe hands’ training.
Formal disciplinary investigation
On 28 January 2020 Mrs Willmott was called to another meeting and advised that a formal disciplinary investigation into the inappropriate kiss and hugging allegations would start. She claimed the kissing allegation could be racially motivated at this point because she was Chinese. To explain, the kiss incident was described as giving the child a peck on the cheek.
Mrs Willmott was eventually dismissed on 13 July 2021 and presented a claim of unfair dismissal.
In the case of Mrs S Willmott v Pioneer Learning Trust, the employment tribunal found that Mrs Willmott had been unfairly dismissed. Mrs Willmott had been summarily dismissed for gross misconduct, but the employment tribunal found that the trust had actually only ever considered the incident of hugging to be one of misconduct and not gross misconduct for which summary dismissal would be appropriate.
The employment judge accepted that Mrs Willmott knew the risks of hugging a child but was disappointed that the kiss allegation had taken so long to be dismissed.
This decision is not seeking to contradict safeguarding principles by suggesting that hugging a child is appropriate. Instead, the judge considered the LADO’s advice that this whole matter could have been addressed with an appropriate management instruction against such conduct and otherwise found Mrs Willmott’s conduct was not capable of amounting to gross misconduct.
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