Headteacher unfairly dismissed for ‘chastising’ her child at school
Child safeguarding and protecting the welfare of children is a key component of all school and academy environments.
In the recent employment tribunal (ET) case of Ms S Malabver-Goulbourne v Arbor Academy Trust, Ms Malabver-Goulbourne, a headteacher at a school within the Arbor Academy Trust, filed complaints of unfair and wrongful dismissal following the termination of her employment and further to a safeguarding incident involving her allegedly ‘chastising’ and assaulting her own child.
The safeguarding Incident
On 17 January 2022, Ms Malabver-Goulbourne, after a late meeting, was in her office with her two children and the safeguarding lead Ms Bhagwandas. Ms Malabver-Goulbourne’s three-year-old son started playing with a bottle of hand sanitiser. Ms Malabver-Goulbourne’s daughter informed her mother what her son was doing and Ms Malabver-Goulbourne took the sanitiser from him and ‘tapped’ him on the back of his hand to get his attention, intending to explain the dangers of playing with sanitiser.
Ms Bhagwandas, having witnessed the incident, told Ms Malabver-Goulbourne at the time that she should not have ‘hurt her son’ and should have spoken to him instead. Ms Malabver-Goulbourne denied hurting her son and stated she had used two fingers to tap him to get his attention and prevent him from harming himself.
Unsatisfied with the situation, Ms Bhangwandas reported it as a safeguarding concern, stating that Ms Malabver-Goulbourne had smacked her son on the hand causing him to cry. This led to an investigation by the police who determined that Ms Malabver-Goulbourne’s actions were reasonable chastisement and did not meet the threshold for any criminal investigation.
Internal investigation
The academy trust proceeded to investigate matters internally under its disciplinary procedures and subsequently dismissed Ms Malabver-Goulbourne for gross misconduct. They emphasised that any form of physical chastisement was prohibited by trust policies and statutory guidance, leading to a loss of trust and confidence in Ms Malabver-Goulbourne’s ability to fulfil her role.
Disciplinary appeal
Ms Malabver-Goulbourne appealed the dismissal, claiming that it was disproportionate to dismiss her and that her actions were misinterpreted. The appeal panel upheld the dismissal, reinforcing that Ms Malabver-Goulbourne’s behaviour was inappropriate in a school setting where she held a position of trust.
Tribunal findings
The ET concluded that the academy trust’s belief in Ms Malabver-Goulbourne’s gross misconduct was based on reasonable grounds, but the ET found that the academy trust did not adequately consider the context and Ms Malabver-Goulbourne’s consistent explanation of her actions. This included Ms Malabver-Goulbourne reporting that her son had previously played with hand sanitiser and harmed himself in the process. She was therefore seeking to protect him from further harm.
In addition, Ms Malabver-Goulbourne’s explanation that her son’s tears were due to taking the bottle away from him, and not the tap, was an additional feature of the evidence that the ET considered the academy trust had not properly contemplated as part of its investigation. The ET found that a three-year-old child may well have cried if an object they shouldn’t be playing with is taken away from them.
The ET judged that the dismissal was outside the band of reasonable responses, making it substantively unfair.
Compensatory remedy
Although the ET found Ms Malabver-Goulbourne’s dismissal was unfair, it acknowledged that Ms Malabver-Goulbourne’s actions in tapping her son’s hand, which could be considered an assault depending on the circumstances, contributed to her dismissal. This resulted in a 20% reduction in any compensatory remedy.
The ET ordered the academy trust to compensate Ms Malabver-Goulbourne £102,300, which included £93,900 for financial loss and an £8,500 basic award.
Summary
Child safeguarding will always be the top priority in schools and academies. The conflict here between being a parent and a person in a position of trust shows that issues such as this can sometimes be difficult to reconcile. That said, a failure to properly consider someone’s consistent explanation, along with inconsistencies in the investigation findings, ultimately led to the decision of this trust being deemed unreasonable and unfair.
Need support with your HR?
Our support means you can focus on education, while we take care of your organisation’s HR needs.
CEFM offers consultancy to support schools to deal with disputes quickly and sensitively. Get in touch for a free quote about how we can help you.
The safeguarding section of our CEFMi website contains model policies, guidance, checklists and FAQs. Get a free trial of CEFMi – a comprehensive resource for school managers containing over 7,000 pages of text. No other website offers such a complete service specifically written for schools.