31 August, 2023
Safeguarding protocols are an essential part of keeping children safe and are a primary consideration for most education providers. The question then is how to balance your safeguarding responsibilities as an employer with an appropriate level of fairness towards your employee when dealing with complaints and circumventing the risk of an Employment Tribunal claim.
This can be a fine balance, and should a disciplinary process occur, you may find that difficult decisions must be made to deliver the required outcome. You may encounter discussions with the Local Authority Designated Officer (LADO) or the police should the complaint be sufficiently serious. This involvement may present a conflicting view, given that their interests may not align with your own due to your additional obligations to your employee; coupled with obligations around safeguarding and reporting to regulatory bodies such as the TRA and DBS where relevant; whereas their sole focus is the child.
There are often difficulties in obtaining written information to support LADO decision making as to whether the threshold for harm is met. In a number of cases Tribunals have found the failure to disclose that information where it is relied upon to be unfair. You as an employer must make the decision as to how to proceed with the investigation and corresponding disciplinary process as previous cases have shown that you cannot simply rely upon LADO or police investigation without further consideration and supporting evidence. There are different standards of proof for a police matter and a disciplinary investigation which also should be borne in mind. For employment matters it is whether on balance of probabilities it is more likely than not that the employee did what they are accused of whereas the criminal standard is whether it beyond all reasonable doubt.
As an employer you are required to conduct a reasonable procedure throughout. Thus, provided that a reasonable investigation is followed and any subsequent decision to dismiss falls within the band of reasonable response available to you, it improves the likelihood that any such dismissal be deemed fair by a Tribunal.
It is vitally important for employers to have clear guidance on when your employee's conduct will be deemed to amount to gross misconduct, and that they have been informed that any such conduct could result in their summary dismissal. The recent case of Hewston v Ofsted places great emphasis on this point.
Here, the Claimant was an Ofsted Inspector and had brushed rainwater off the hair or forehead of one of the children and put his hand on the child's shoulder. After a complaint was made, there was an investigation and disciplinary process that concluded with the Claimant being summarily dismissed. In the first instance, the Claimant's complaints of unfair dismissal and wrongful dismissal were dismissed by the Employment Tribunal, however the Claimant successfully appealed in relation to both outcomes.
The case sets out some important points for you to consider. Firstly, that the Claimant had not been forewarned, by a written policy, training or otherwise, that a single incident of physical contact of this sort could result in his dismissal. Further, that the Claimant was not provided with the documents that were seen and relied upon by the dismissing officer, which therefore rendered his dismissal unfair.
This serves as a reminder for employers to follow a robust disciplinary process, especially where scenarios occur that may give rise to a breach of safeguarding. Such issues must be handled with an extra degree of care and sensitivity, given the career damaging impact they can pose. As an education provider you must consider this against the protection of the child and the reputation of the School, Academy, Trust or College.
We are seeing a current trend of inappropriate conduct being couched in terms of safeguarding and as such it is something which needs to be finely balanced and properly considered because whilst there are cases which are clearly safeguarding others may not be.
Learn more about our Education department here