20 July, 2017
In most cases a safeguarding issue necessitating measures to protect a child will be the paramount consideration for most Education providers. However, as an employer you have to balance that consideration with fairness to your employee or risk facing an Employment Tribunal claim.
It can be a fine balance and the process can be fraught with difficult decisions to be made. As an employer you will be party to discussions with LADO and even the police. Their interests and priorities can sometimes conflict with yours and you have to decide how best to proceed with any investigation or disciplinary process.
If a school are advised by the police not to disclose a statement whilst the police investigation is ongoing, should the school continue with their own investigation and/or disciplinary?
There have been several cases that have dealt with similar issues. As an employer you have to carry out a reasonable investigation and the decision to dismiss has to be within the band of reasonable responses. In addition a reasonable procedure must be followed.
If the statement is something considered by the disciplinary officer as part of the decision and is not shared with the employee - this is likely to result in a finding that the employee did not have a proper opportunity to defend themselves and the hearing was unfair. If you are asked not to disclose a piece of evidence you need to carefully consider that request and consider the consequences for your own investigation.
You also cannot simply rely on investigations and findings of the police or the LADO. In the case of Z v A it was held that even though there may be a significant reason why a school would dismiss, (in that case an allegation of historic sex abuse by a caretaker at a school), a proper investigation should be carried out. In that case the allegation was unsubstantiated and the police had not concluded their investigation but indicated they would do so in a short time. The school dismissed without waiting.
Whilst the EAT sympathised that the school had a substantial reason for wanting to dismiss, they had not acted reasonably in doing so.
Such issues can be career damaging for the employee and Education providers have to consider that against the protection of the child and the reputation of the school, Academy, trust or College.