Banter in the classroom

When a teacher was dismissed for inappropriate comments to pupils, the employment tribunal in Mr M J Holland v Great Academies Education Trust had to determine if the school acted fairly. Additionally, in Mr Mark Holland: professional conduct outcome, the Secretary of State had to decide if the teacher should be banned from teaching.

We explore both these processes and pull out the key learning points for schools and colleges. 

Facts

Mr Holland, a mathematics teacher, had been employed at the secondary school for just over three years when students complained about comments he made in class.

One pupil alleged Mr Holland said, “in ten years' time when we meet again you're gonna have nine kids to nine different dads”, called her “Jaws” and when the class laughed said “I'm only joking Jaws you're beautiful”.  A different female pupil said that he'd called her beautiful and commented further about her looks. 

The assistant head spoke to Mr Holland, but did not take any action against him.  

A few months later, a male pupil (D) complained that Mr Holland twice told his girlfriend that she “could do better”, a female pupil said that Mr Holland called her “hideous H” and there were other complaints that he called students “the Liar” and “Football girl”. 

The assistant principal held an investigation meeting with Mr Holland. He admitted the “hideous H” comment - saying it was a joke - and admitted the comment to D on one occasion. 

A few days later, several students complained that Mr Holland made comments about the Quran, asked a pupil who was wearing a hijab if she had a bomb under it, and called her a “nun”. There was also a complaint that he asked students which teachers they found attractive.

An incident was also reported that Mr Holland asked a pupil, in front of the rest of the class, why she did not have a photograph on her school profile. This was despite a previous email from the school instructing Mr Holland to ensure that this pupil was not photographed and should not be asked about it.  

The head teacher told Mr Holland to work from home and another investigation meeting was held with the assistant principal. Mr Holland denied the additional allegations except he admitted calling a pupil a “nun”. 

Following the investigation meeting, the head teacher wrote to Mr Holland explaining that he was also going to investigate. Together the head teacher and assistant principal produced an investigation report. It said, in their opinion, the comments reached the threshold of gross misconduct. 

Mr Holland was invited to attend a disciplinary hearing via a letter which explained that the allegations constitute gross misconduct and if proven could lead to summary dismissal. However, he was not provided with CCTV footage of him speaking with D. While it was referred to in the investigation report, the school had lost the footage. 

The trust's director of education chaired the disciplinary hearing. The individual allegations, the investigation report and a summary of its finding were read out, including the conclusions in the report. Mr Holland was given the opportunity to question both the investigators and ask questions. 

Following the disciplinary hearing, the outcome letter was provided to Mr Holland explaining that he was dismissed for gross misconduct. The letter set out the allegations individually and the disciplinary chair's observations and conclusions. While Mr Holland appealed, the dismissal was upheld. He was also referred to the Teaching Regulation Authority. 

Employment Tribunal

The tribunal accepted that Mr Holland was summarily dismissed for misconduct which is a potentially fair reason for dismissal. It held that dismissal was fair given the seriousness of the allegations and because Mr Holland admitted many of them. The disciplinary chair had a reasonable belief that Mr Holland had committed acts that were fundamentally discriminatory, breaching the Equality Act 2010 and Teaching Standards. There were reasonable grounds for that belief given Mr Holland's admissions and the witness statements provided by the pupils. 

The tribunal then had to consider if the decision to dismiss and the process the school followed was fair in accordance with section 98(4) of the Employment Rights Act 1996. Mr Holland argued that the investigators should have spoken to more pupils, leading questions were asked of the pupils they spoke to, and he wasn't able to cross-examine the pupils at the disciplinary hearing. However, the tribunal found the process reasonable and proportionate. The witnesses were not asked leading questions, and it was not reasonable, in these circumstances, to go around the class asking pupils if they had seen or heard anything. 

The tribunal was critical of the head teacher who failed to keep the CCTV evidence safe. However, the disciplinary chair did not view nor rely on this evidence. Had the disciplinary chair taken into account the head teacher's description of the CCTV, when Mr Holland had not viewed it, the tribunal explained that this may have resulted in a finding of a potentially unfair dismissal. 

The tribunal also noted that it was a most unusual step for the headteacher, at a late stage of the investigation, to volunteer himself on to the investigating panel. It could have been seen as an attempt to put pressure on the decision makers to dismiss Mr Holland. However, the tribunal found that the outcome letter, which set out the disciplinary chair's observations and conclusions, showed that he had looked at the evidence objectively. 

Overall, the tribunal found that the dismissal was both substantively and procedurally fair. Mr Holland's unfair dismissal claim therefore failed. 

Professional conduct panel

The panel considered Mr Holland's conduct was insensitive, inappropriate, and fell short of the expected standards of behaviour, but not significantly so. But it didn't amount to ‘unacceptable professional conduct’. This was because Mr Holland's conduct did not display behaviours associated with any of the offences listed in the Teacher Misconduct: The Prohibition of Teachers. 

However, the panel found that Mr Holland was not an appropriate role model to students and the offensive comments could potentially damage the public perception of a teacher. It found the following comments constituted conduct that may bring the profession into disrepute:

• “Hideous H”
• “You could do better” to D's girlfriend
• “In 10 years' time when we meet again you're gonna have 9 kids to 9 different dads”
• Calling a pupil a nun and asking if she had a bomb under her hijab. 

Therefore, the panel considered whether to recommend to the Secretary of State that Mr Holland should be subject to a prohibition order preventing him from teaching. The panel accepted his actions were not deliberate; he did not intend to be malicious or unkind to the pupils. He misjudged the conversations when trying to build rapport. Given the nature and severity of the behaviour were at the less serious end of the possible spectrum and, having considered the mitigating factors, the panel determined that it was not appropriate to recommend a prohibition order. 

The Secretary of State agreed with the panel. 

What can schools and colleges learn from this?

Overall, the decision to dismiss and the procedure followed was fair in this case. However, there were a couple of close calls. 

The head teacher muscled in on the investigation and risked jeopardising the fairness of the procedure. Therefore, it's important to appoint appropriate and different people at each stage of the process who act objectively and who are not swayed by others. 

It's also important that they do not overstep their role. The investigation is a key stage to establish the facts, speak to relevant witnesses, and gather the evidence. Typically, the investigator will recommend whether there is a case to answer. However, the investigator should go no further than that; crossing the line to consider if the employee is guilty of the misconduct is a step too far. 

Ensure there is a clear paper trail. An investigation report is a good idea to clearly set out the evidence and explain if there is a case to answer. Also, a detailed outcome letter after the disciplinary hearing is crucial to explain thought processes and show impartiality and critical thinking. 

Make sure you take care of the evidence. In this case, the CCTV evidence was ‘lost’ and it's not clear what happened to it. Some CCTV can get wiped after so many days, so make sure you download what you need and save it somewhere safely and securely. Also, ensure you only rely on evidence that the employee has had the opportunity to view and consider.  

Alexandra Addington is a practice development lawyer at Irwin Mitchell.