Where Schools Get The Dismissal Procedure Wrong
Where schools get the dismissal procedure wrong – how does the Tribunal view it?
The case of Hill v Governing Body of Great Tey Primary School, the claimant was a mid-day dinner assistant at a primary school. She became aware that a female pupil had been tied to a fence by her wrists and whipped across her legs by some other pupils.
She informed the head teacher who completed an accident notification form and gave it to the girl’s parents the same day. The claimant bumped into the parents later that day and believing that they didn’t have full details of the incident, she told them what she had seen. Following this she was suspended by the school pending disciplinary action.
While suspended she complained to the press about the situation and confirmed what she had told the parents. The case caused a stir in the national media. Ultimately the claimant was dismissed for breaking confidentiality by speaking to the parents and the press, and for acting in a manner likely to bring the school into disrepute.
The claimant won her claim for unfair dismissal on the grounds that the procedure followed by the school was unfair. The Employment Tribunal held that the investigation and disciplinary process was unfair because:
- The allegations had been investigated by the head teacher who was intrinsically involved in the events;
- She reported to the governors with a recommendation that the claimant should be dismissed and was likely to have an undue adverse influence against the claimant;
- Relations between the claimant and the head teacher were strained;
- The investigation was not as thorough as it might have been;
- It was inappropriate for governors at the school to conduct the disciplinary hearing, particularly given the wide unwelcome, unhelpful public attention (a suggestion by the Claimant’s trade union that governors from another school should sit on the panel was rejected by the school);
- The panel that sat was not impartial.
That being the case, the Tribunal moved to remedy and decided that had a fair procedure been followed, the claimant would have been dismissed within 2 months in any event. It therefore reduced her award by 80% for contributory fault. This is known as a “Polkey reduction”.
The Claimant appealed to the Employment Appeal Tribunal (EAT) and it upheld the appeal. It found that the Tribunal did not adopt the correct approach when considering the application of Polkey. It should have made an assessment of chance relating to what the school might have done by adopting a predictive approach.
The EAT said it would have expected consideration of the chances of dismissal to have involved setting out those matters that might be said in favour of the Claimant, as well as against – such as her long service (over 7 years) and that before the incident complained of, she had been an entirely satisfactory and loyal employee. A percentage chance approach was not being adopted. The matter was sent back to the Tribunal to reconsider the remedy.
