Welcome back to our weekly case of the week update. This week’s case asks the question: Can a dismissal for malicious and fabricated sexual assault charges be fair? For those that missed us last week, you can find our summary of an important Supreme Court holiday pay claim here. Now, we move onto this week’s case which involves a teacher at an all girls school.
The Claimant, Mr Hawker, was a teacher of maths and computing at the Respondent, Devonport High School for Girls, for around 5 years. He was suspended on 28 June 2021 following allegations of inappropriate conduct from pupils, specifically sexual harassment and inappropriate conduct.
It was disputed when the incident occurred, it was either 2018 or 2019. The school arranged for a ski trip, with the Claimant and his partner, who also worked at the school, acting as supervisors on the trip. A complaint was made about the Claimant and his partner kissing while they were taking a personal day to ski. There are other minor complaints of inappropriate conduct in the form of jokes, reaching across pupils to reach their computers, or tapping them on the shoulder to get their attention, but these were mostly denied by the Claimant and no disciplinary action was taken. While this was not relevant to the complaint, the Respondent thought it necessary to include these facts in the background to the disciplinary conduct that occurs several years later.
The children at the school, who have all been anonymised for their safety, made several complaints of inappropriate touching while in the Claimant’s lessons. This involved crouching next to them and placing his hand on their leg, along with rumours that the Claimant had an affair with an older pupil. While the rumours were dismissed as being untrue, a safeguarding and disciplinary procedure commenced regarding the inappropriate touching. During the investigation, other pupils become involved and provided statements.
The Tribunal is unclear on why these other pupils become involved, but their statements are the most alarming. These additional students state that there was a series of conduct wherein the Claimant would massage their shoulders and thighs, would touch them inappropriately, and wink at them during lessons. Such conduct, especially in relation to children, provided a reasonable basis for an investigation into the veracity of the allegations.
During the investigation, a student made the following statement: ‘In the netball courts at lunch a group of (x years) told us that they tried to get Mr Hawker fired for fun and they told people that he was touching their thighs and sexually assaulting them. I don’t know any of their names or forms but I think the main one who said they tried to get him fired for being a paedophile for fun is called (Student H)’.
Another student also added: ‘When I was leaving the bottom court with Student L we were talking to some year xs who then said “I think we got Mr Hawker fired” to which I replied “What? Why would you do that” and then one of them said “Because it was fun” and another one added “Yeh we said he touched our thighs trying to get him done for sexual assault” (or something along those lines it was hard to hear properly). I think one of them is called Student H’.
However, the staff member responsible for conducting the investigation failed to make an accurate note of their statements, which leaves out the points about it being a malicious fabrication and only implies that they overheard students talking about the allegations. As a result of the fabricated allegations, the police arrested the Claimant on 1 September 2021. This was the first time he became aware of the allegations. A referral was also made to the Teachers Registration Authority (TRA) who issues an Interim Prohibition Order, preventing the Claimant from working in his capacity as a teacher pending conclusion of the investigation.
Refusing to postpone the meeting in line with the guidance and instead relying on advice from the Local Authority Designated Officer, the school commenced an internal investigation. Statements were taken from the children involved, whose accounts varied and information was changed from their initial statements as well as no specific dates or times being provided. The statements from other children regarding their attempts to have the Claimant fired were not put to them or discussed in any way. Not all of the students were interviewed. Not only were the two statements about the allegations being malicious not correctly noted down, their statements were entirely excluded from the investigation.
Following their investigation, the Claimant was dismissed on 18 February 2022. The statements about the collusions between the students to have the Claimant fired were forwarded onto the police on 1 February, before the dismissal, and all charges were dropped on 3 March. On 8 March the Claimant appealed his dismissal. On 21 March the TRA were provided with the same statements and they lifted the Prohibition Order on 1 April. Despite this, the Claimants appeal failed and he issued a claim for unfair dismissal.
The primary issue comes down not to whether the conduct occurred, but whether the employer had a reasonable belief that the conduct had occurred. If the Tribunal finds that no reasonable employer, based on the facts presented after a reasonable investigation, could reach that conclusion then the dismissal in likely to be unfair.
Given the glaring issues surrounding the lack of evidence gathering and the poor procedure, the Tribunal found in the Claimant’s favour. The Tribunal awarded just under £45k for the dismissal.
While it is always important to get into what the school could have done to avoid this scenario, it is worth pointing out that their focus was the children’s safety at all times. While their procedure was lacking, their focus on ensuring the safeguarding of the children is present throughout and recognised in the Tribunal’s opinion. Getting these calls right can sometimes be difficult even in ideal investigations and the Tribunal acknowledges the difficulty in balancing safeguarding and procedural fairness.
However, the lack of thorough investigation, following up on important evidential points, poor note taking, failing to consider the gravity of the decision on the Claimant’s career, the weight of the evidence from the children and the failure to follow the procedure set out all paint a fairly bleak picture. While procedure does not always have to be the most important issue, indeed it is likely that if the offences alleged were proven true that the Claimant’s award would have been reduced significantly, this case highlights the importance of thorough investigations and consideration.
Ensuring that the procedures are clear and investigations are handled with appropriate care can help prevent these issues from getting to this point. While it is a shame, it is likely that the children achieved their goal of ending the Claimant’s career in teaching.