ET assesses procedural fairness in school disciplinary case

In the case of Ms B Subrian v Gilbert Colvin Primary School, the employment tribunal (ET) considered the fairness of Ms Subrian’s dismissal following an incident involving a comment made to a pupil.

Background

Ms Subrian, a teacher with over 35 years of experience, started employment with Gilbert Colvin Primary School in Ilford in January 2019. She initially started as a Year 5 teacher but was moved to support Year 6 pupils following an unrelated incident in October 2022, where she was accused of slapping a child—a claim she denied. She was cleared of physical misconduct but received a written warning for taking the child out of class to discuss the allegation, which was considered to be a breach of safeguarding protocols.

The incident leading to dismissal

On 11 May 2023, during a morning session aimed at preparing Year 6 students for their mathematics SATs, a pupil SS inquired about the consequences of not holding their papers correctly during the test. In response, Ms Subrian remarked that she would ‘whack’ them, accompanied by a hand gesture. She later said that this comment was made in jest. Later that day, during a subsequent class which included SEND pupils, a pupil, referred to as KA, reported feeling threatened by a similar comment. KA stated that, although he appeared unaffected outwardly, he felt upset and angry internally.

Investigation and disciplinary action

Following KA’s disclosure, the school’s acting headteacher initiated an investigation. Ms Subrian was informed of the allegations and attended a disciplinary hearing on 10 July 2023. The hearing was chaired by one governor, who concluded that the comment constituted gross misconduct, leading to her dismissal. The decision emphasised that, irrespective of the intent behind the remark, the impact on the pupil, especially considering language barriers, was significant.

Investigation not reopened on appeal

Ms Subrian appealed the dismissal claiming that she had not initially been told the name of the pupil. In her statement she had referred to SS but was later told that the incident had been disclosed by pupil KA. Ms Subrian had previously stated that the investigation should be reopened because if the allegation was that she had made the comment to KA, then this would have been in the afternoon when SEND pupils were present. If there were SEND pupils in the class, then there would have been another adult present who she stated should have been interviewed. The school refused to reopen the case.

Employment tribunal (ET) findings

Ms Subrian challenged her dismissal, claiming it was unfair and that the investigation lacked integrity. However, the ET upheld the school’s decision, stating that the comment was inappropriate, particularly given the diverse linguistic backgrounds of the students. The ET highlighted that even if the remark was intended humorously, the adverse reaction of even a single student elevated the issue to a significant safeguarding concern.

The ET considered Ms Subrian’s claim that the conflict of timing made a difference to the school’s assessment of her conduct. It concluded that it could have been potentially worse for Ms Subrian if a witness in the afternoon class stated that she had made a similar comment in that class, in addition to the comment she had made in the morning class. The ET concluded that the investigation was reasonable.

Regarding the composition of panels for disciplinary hearings, the ET considered that the correct interpretation of the disciplinary policy was that the disciplinary hearing should have been chaired by three governors in this case. However, it concluded that any unfairness was remedied by the appointment of a full panel at the appeal hearing.

The ET dismissed Ms Subrian’s claim of unfair dismissal, reinforcing the importance of maintaining appropriate conduct and communication within educational settings to ensure the safety and wellbeing of all students.

Implications

The outcome highlights considerations for schools when handling disciplinary procedures, particularly in cases involving allegations of misconduct. Although the ET upheld the school’s decision to dismiss Ms Subrian, the case demonstrates the importance of ensuring procedural fairness at every stage of an investigation and disciplinary process.

The investigation

While the ET ultimately considered the investigation to be reasonable, schools should be mindful of the potential consequences of overlooking key procedural steps. Failure to conduct a sufficiently detailed investigation could expose schools to legal challenges.

Process

The case highlights the need to ensure disciplinary policies are correctly followed, including the correct composition of disciplinary panels. Although the ET found that the single-governor panel at the initial hearing did not result in overall unfairness, schools should ensure that their procedures follow internal policies and best practices to avoid claims of procedural unfairness. The decision to appoint a full panel for the appeal hearing was considered a sufficient remedy, but schools should apply correct procedures from the beginning of the process to prevent unnecessary disputes.

Safeguarding

The case demonstrates the increasing importance of safeguarding considerations in employment disputes. Even when comments or actions are made in jest, the perception and impact on students – particularly those with additional needs – must be carefully assessed. Schools should provide clear guidance to staff on professional conduct and communication, particularly in diverse educational environments where cultural and linguistic differences may influence how comments are interpreted.

Conclusions

This case serves as a reminder that while schools must take robust action in safeguarding matters, they must also balance this responsibility with fair and well-documented disciplinary processes. A failure to uphold procedural fairness may not only risk legal challenges but also undermine staff confidence in internal disciplinary processes. To mitigate such risks, schools should regularly review their policies, ensure training for disciplinary panel members, and develop a culture of clear, fair and well-documented decision-making.

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