Disciplinary investigations are the foundation of any disciplinary proceedings. The investigation needs to be both fair and reasonable, impartial and the accused must have the opportunity to comment on relevant documents and evidence. The recent case of Mr M Whittaker v Governing Body of Sutton Oak Church of England Primary emphasised the importance of these, finding that Mr Whittaker’s dismissal was not only unfair but also discriminatory.
Mr Whittaker received a written warning for inappropriate and unprofessional contact with a pupil shortly after qualifying in 2002. His conduct was considered to have been naïve so he was also issued with guidelines, which he signed. The guideline stated that he was not to be left alone with pupils except in an open area accessible to all and to ensure any actions involving the pastoral care of pupils were discussed with the Deputy or Head Teacher.
However, in April 2015 the Head Teacher found Mr Whittaker alone in a classroom with a male pupil for a second time, this time giving the pupil a pack of Rolos. He was not suspended, during the investigation, as safeguards were put in place.
The investigation was carried out by the Head Teacher. Mr Whittaker claimed that three Teaching Assistants knew he was meeting with the student at break times for pastoral support. Mr Whittaker had accepted during the investigation that it had been silly to meet with the student. The three Teaching Assistants were not interviewed.
Mr Whittaker was dismissed on the 9 June 2016 and made numerous claims for unfair dismissal, discrimination and victimisation/harassment on the grounds of sexual orientation and disability.
The tribunal found:
- The Head Teacher was not impartial and should not have investigated – he was a witness to the incident.
- A fundamental flaw in failing to interview three witnesses. Judge Robinson stated that “as the dismissal is potentially career ending…the investigation needs to be thorough, in order to seek to find evidence in support [Mr Whittaker’s] contentions as much as seeking to find evidence against him.”
- Room to criticise the school for the delay between the date of the incident and the dismissal.
- That a male heterosexual teacher would not have been dealt with in the same way in such circumstances. This led to a finding of direct discrimination.
Following this decision, the case was appealed in the Employment Appeal Tribunal.
The EAT found that the tribunal had erred in its approach to the hypothetical comparator as they failed to confirm that conditions were not ‘materially different’ from those of the claimant. As a result the finding of direct discrimination has been referred to a fresh tribunal.
What can employers learn from this disciplinary investigations case?
Whilst the finding of direct discrimination is being reconsidered, this case demonstrates the need for investigating officers to be impartial, that investigations are thorough, considering all evidence, and that they are concluded in a timely manner. Without these elements being carried out successfully it’s likely that employers could face unwanted claims for unfair dismissal as we’ve seen in this case.
One further aspect for schools to consider, is the duty to inform the governing body when a member of staff is suspended pending an investigation under the School Staffing Regulations (England) 2009. Although there is a duty to inform the governing body of a suspension, schools must be careful not to provide too much information that could result in allegations that matters have been prejudged or at the very least, call into question the issue of impartiality.