School caretaker was unfairly dismissed as his employer failed to investigate his mental disabilities when considering his misconduct
A recent case emphasises the importance of ensuring that all aspects of a disciplinary case must fall within the band of reasonable responses from an employer to dismiss an employee fairly. In the case of Mr Kevin Lilly v Southend High School for Boys Academy Trust, it was the investigation that was found to have fallen short of that legal requirement.
Dismissed for misconduct
Mr Lilly was employed by Southend High School for Boys Academy Trust as a school caretaker and cleaner from 1 May 2007. He was served notice of dismissal in October 2023 on the grounds of misconduct for breaching academy safeguarding procedures for accepting a lift during lunchtime to McDonalds from three sixth form students at the academy trust. The trust argued that he had been fairly dismissed for misconduct.
Previous warnings
The background to this case is important. Over several years the trust had given Mr Lilly various management instructions about maintaining professional boundaries with the pupils. In 2010, he was advised to avoid behaviours such as joking with pupils, joining in football, or being in the dining hall at break times. In 2013, he was expressly instructed to keep away from pupils at lunchtimes, break times and lesson changeovers, with a warning that repeated failure to follow those expectations could lead to disciplinary action and possibly termination. It was noted by the employment tribunal (ET) that these earlier communications were not formal disciplinary warnings under the trust’s disciplinary procedure.
Diagnosis of ADHD
In July 2019, Mr Lilly had a diagnostic interview for social and communication disorders. The report stated: ‘he does experience difficulties in his general abilities in relation to others of the same age. He struggles in verbal comprehension, perceptual reasoning and working memory, and it is clear that he does present with symptoms which are consistent with a diagnosis of ADHD’.
This report was never seen by the trust or shared by Mr Lilly to the trust.
Formal warning
Following performance review, and in accordance with the trust’s performance procedures, on 22 May 2023 Mr Lilly was issued with a formal warning regarding his alleged standards of performance.
This warning, which lasted for one year, addressed Mr Lilly’s seemingly relaxed approach and it also contained the link to the ‘Keeping Children Safe in Education Statutory Guidance’. It attached previous management instruction/advice letters and warned him that a ‘failure to meet those expectations may result in further action under the formal disciplinary procedure being taken against you’.
Re-emphasis of internal safeguarding procedures
In September 2023, the trust introduced a ‘Child Protection Procedures Summary’ to summarise other internal procedures at the academy. The summary says:
‘staff in a school are in a position of trust and need to maintain a solely professional relationship with all pupils – including those in the sixth form. This does extend to contact with pupils outside school, whether that contact be face-to-face, electronic or online…… If there is any likelihood that you are likely to meet an SHSB pupil in an informal or social context, it is important that you let RVW/RMB have details beforehand’.
Accepted lift
On 4 September 2023, this document was read out to all staff at the academy. However, the day after this was read out is when Mr Lilly accepted a lift from three sixth-form students during his lunch. The incident was reported by a member of the public to a staff member who then raised the concern internally. He was suspended later that month, and an investigation followed.
Disciplinary hearing
In response to the allegation that he had accepted the lift in breach of procedures, Mr Lilly accepted that getting into the car had been a ‘silly’ or ‘stupid’ decision. The investigation concluded that his conduct breached school procedures and policies, and a disciplinary hearing took place and he was dismissed. His appeal was not upheld.
ET judgment
The ET accepted that the trust had a potentially fair reason for dismissal, namely misconduct, and accepted that the trust had reasonable grounds to believe Mr Lilly had committed misconduct, particularly by failing to follow the instruction to keep away from pupils at lunchtime. The ET also accepted that the factual investigation into what happened was, in many respects, detailed and reasonable, especially because Mr Lilly admitted the underlying conduct.
No reasonable cognitive investigation
However, the dismissal was still found unfair because the ET concluded that the employer had not carried out a reasonable investigation into Mr Lilly’s cognitive and neurodevelopmental difficulties. The evidence showed the trust knew of previous and outstanding assessments such as the fact Mr Lilly was awaiting an ADHD diagnosis, and knew there were concerns about his understanding, comprehension and social boundaries. Yet it did not properly explore medical evidence, seek updated occupational health input, investigate whether his behaviour might have been influenced by an underlying condition and whether treatment or support might reduce future risk.
The ET held that this omission was material, because such evidence might have explained why he acted as he did and whether dismissal was the appropriate sanction.
One-off event
The ET also considered sanction. It noted that the trust itself treated the matter as serious misconduct, not gross misconduct; that Mr Lilly had no formal disciplinary warnings under the disciplinary policy (albeit one under the capability procedure); that the dismissal letter appeared to rely in part on earlier incidents that had not themselves been dealt with through disciplinary proceedings; and that the incident, while inappropriate, was a one-off, short-lived event involving adult pupils, with no complaint arising from the pupils themselves. Taking those matters together, alongside his 16 years’ service and the mitigating medical issues, the ET found that dismissal fell outside the band of reasonable responses. The unfair dismissal claim therefore succeeded.
Summary
It is clear in reading the case that there were several times that advice had been given previously regarding Mr Lilly’s conduct and performance. While this was necessary and helpful the key aspect of this case was to seek medical advice to properly and fully consider the situation before any sanction was considered and given.
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