The whole process of investigating and dealing with cases of misconduct in schools is understandably an unpleasant affair. There are so many grey areas and points of view to consider, and arriving at a fair and just decision may be a long-winded and complicated process.
There are plenty of guidelines and procedural advice from the Department for Education on how such cases must be conducted. But, a mock employment tribunal I attended a few weeks ago helped me understand some of the issues in deeper detail.
The event, which was held at UCLan Burnley, was organised in collaboration with Personnel Checks, an umbrella body for the Disclosure and Barring Service, DWF LLP, and one of TheSchoolBus contributors, Fusion Business Solutions. The session which then took place over the next three hours, provided an insightful look into the underlying legal and HR issues related to the unfair dismissal of an employee. This post will briefly present an overview of the case and our key takeaways!
The headteacher (let’s call him Anton) of an Academy alleged that his personal assistant (Barbara) had violated the Academy’s computer use policy, based on reports from the school IT manager which showed details of a surge in email and internet activity over a period of time.
Based on evidence, the defendant was accused of sending an excessive number of personal emails using the academy’s email address, downloading email attachments with inappropriate images and participating in adult chat rooms using the Academy’s email address.
A meeting was called with Barbara to discuss the claims, where she admitted to accessing adult websites on the school computer. As a result of this, Barbara was fully suspended with pay and was informed that she could be dismissed.
At the next stage of the procedure, which is a disciplinary hearing, each of the allegations against her were explored in further detail.
Barbara claimed that all her personal emails were sent outside of teaching hours and that other employees often used their work emails for personal use. On the point about the downloading of inappropriate images, she explained that another employee had showed holiday photos of her in a bikini. Regarding the third allegation, while she acknowledged that she accessed adult websites, she asserted that she was chatting with consenting adults, and did not consider it to be pornographic in any way.
When asked if she had seen the school’s computer policy when it was sent to all staff by email, she denied seeing it and the copy she received was not signed by her.
Barbara was dismissed with immediate effect for breaching the Academy’s computer use policy.
The defendant appealed against the decision to terminate her employment on the grounds that it was a case of unfair dismissal and claiming that she had not hurt anyone and has continued to work hard for the academy.
Initially, when I heard the case against the defendant, I was of the view that her behaviour was not acceptable in a school setting. Besides, evidence against her suggested that her behaviour was unprofessional and inappropriate, especially because she works with children!
However, the tribunal concluded that the case represented a case of unfair dismissal.
In a nutshell, the school was found to be inconsistently applying policies to its employees and did not ensure that the policy was seen by all. Also, there was no evidence of the school being brought into disrepute as a result of the incident, as claimed by the headteacher.
Here are a few takeaways from the session that I found useful.
What should you remember while dealing with cases of misconduct and unfair dismissal at your school?
• If you have a school policy in place, follow it! As pedantic as it sounds, you will have some explaining to do if the school is not following it.
• It is important to be thorough while creating a policy. In the case of a school IT policy, phrases like ‘reasonable personable use’ is difficult to define, so consider mentioning a degree of usage, such as, ‘up to 20 emails a day’.
• Most maintained schools use and implement the local authority’s policies – however, these may not be necessarily indicative of the circumstances of your school. You can adopt a more user-friendly and flexible approach to suit your school’s individual requirements.
• The ACAS code emphasises that a decision in such cases must be taken ‘promptly and consistently’. Tribunals will take time to make decisions so it’s worth looking at procedures to make sure it is dealt with quickly.
• Just because your school policies are stored on the school server on a website, held as soft/hard copies or sent across to employees via email, do not assume that an employee is informed of a policy. The best evidence that you have is to ensure their signature on it to confirm they have read it. The more vital a policy is, the more reason the school has to make sure it is signed and held on file.
• Make sure the policies and procedures in your school are applied consistently to every employee. In the above case, one of the reasons the tribunal cited for unfair dismissal was that the email/IT accounts of other employees were not checked to determine if internet/email use were in excess.
• Take extensive notes at every stage of the process as what you write down and did at the time is essential information which tribunals will hold both for you and against you.
Meanwhile, take a look at some our expert resources from Fusion, our HR experts. TheSchoolBus has some great resources on Disciplinary Procedures, Disciplinary Investigations and Hearing and Discrimination.