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Judge raps council over unfair dismissal of headteacher

An Employment Tribunal judge has strongly criticised Essex County Council’s handling of a headteacher’s dismissal.

Judge John Crosfill said a hearing with council officers had seen a failure to give the headteacher any adequate opportunity to deal with the evidence of child protection expert Norma Howes.

Margret Lee, an executive director for corporate and customer services, had failed “to at least read and consider the claimant’s QC’s argument that the pre-‘attaining best evidence’ (ABE) evidence was unreliable” and investigator Jo Reed’s “miscategorisation of the evidence as the claimant’s word against that of the children” had seen the testimony of numerous adults inadequately considered.

Judge Crosfill said he would list a remedy hearing but urged the parties to try to reach agreement.

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The case concerned a headteacher and school that have not been named.

In June 2018 the headteacher was arrested at the school on suspicion that he had sexually abused infants in his office.

He was subsequently charged but following legal arguments about the admissibility of evidence the crown offered no evidence and he was acquitted.

Essex took control of the school from its governing body and called a disciplinary hearing at which the headteacher was summarily dismissed. An appeal later failed.

The tribunal heard the only allegation ultimately upheld was that the headteacher had behaved inappropriately towards children.

Seven young children had made allegations, which the headteacher denied.

When Essex began an investigation prior to the disciplinary hearing it identified Ms Howes as a child protection expert and Ms Reed, an external human resources advisor, as someone suitable to carry out an investigation.

The judge said: “It is reasonably clear…that Norma Howes is saying that five year old children do not collude.

“However, it does appear that she is going further and saying that children of that age do not ‘make up’ such allegations. Unfortunately she does not then explain what she means by that.

“It seems most unlikely that an experienced social worker was saying that a child who makes an allegation is always to be taken as being accurate.”

The judge said Ms Howes’ evidence “is phrased [so] it could be read as suggesting that children never ‘make up’ allegations.

“It is a passage upon which heavy reliance was placed later in the disciplinary process. Norma Howes was never asked to explain what she meant.”

Judge Crosfill went on to note that it was clear to a reasonable reader “that Norma Howes is purporting to comment on the veracity of the allegations as opposed to only commenting on the quality of the children’s evidence.

“She does so without referring to any of the other evidence and in particular the evidence of the teachers, learning support assistants, administrators and mid-day assistants.”

He went on to say that Clare Kershaw, Essex’s director of education - who commissioned the investigation following the headteacher’s acquittal - “did not call any evidence from anybody who could be fairly described as a witness to the primary facts”.

Judge Crosfill said Ms Lee, who took the decision to dismiss the headteacher, had a transcript of remarks made by HHJ Leigh when the headteacher’s prosecution was dropped.

“HHJ Leigh is recorded as identifying that the pre-ABE interviews had been conducted before any attempt was made to explain the importance of truth and lies to the children.

“Had [Ms Lee] considered the matter she ought to have recognised that this had a bearing on the whether what was recorded in the notes of the pre-ABE interviews was reliable.”

He said Ms Howes had purported to give expert evidence that the children were telling the truth “without considering the evidence of the various adults who say in terms that the inappropriate behaviour could not have taken place.”

The judge said any reasonable employer ought to have been alert to the obvious danger of this approach.

“An assessment of the credibility of children which either wilfully ignores or at least entirely disregards the exculpatory evidence of adults is worthless,” he said.

Judge Crosfill said Essex did not act as “any reasonable employer would” as Ms Kershaw chose not to call Ms Howes as a witness which meant the headteacher could not challenge her.

“It would be quite impossible for the claimant to effectively challenge the report without Norma Howes attending the hearing,” the judge said.

“Given the weight that this report ultimately carried I consider that there was significant unfairness in not permitting the claimant to challenge it effectively.”

The judge said Margret Lee had taken “a linear approach dealing first with the question of whether it was impossible for the claimant to have taken the children to his office as alleged then putting that aside before addressing the remaining evidence.

“That is the only way the dispute could have been categorised as the claimant’s word against the children.

“I consider that such an approach is obviously and deeply flawed. It is irrational and it is unfair.

“Any reasonable decision maker would recognise that this was not a case of the claimant’s word against the children and that what was required was a careful evaluation of all of the evidence taken together.”

In conclusion the judge said: “What was required was a reasonable and careful evaluation of that evidence. I regret to say that the combined efforts of Norma Howes, Jo Reed. Clare Kershaw and Margret Lee fell far short of that.”

He said: “I have no hesitation in concluding that the decision to dismiss was not taken on reasonable grounds and/or there was not a reasonable investigation.”

Essex did not respond to a request from Local Government Lawyer for comment.

However, the council told the Daily Mail it would take legal advice about the judge's ruling.

A spokesman for the authority said: “We are aware of the judgment of the recent tribunal between a former headteacher and Essex County Council.

“We are currently seeking further legal advice on this matter and are unable to comment further until this process reaches a conclusion.”

Mark Smulian

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