Teaching Assistant fired for alleged assault on child wins unfair dismissal claim (Mr J Urwin v Communities Academy Trust – 1302827/2018)

In the case of Mr J Unwin v Communities Academy Trust 1302827/2018, the Employment Tribunal found that the Claimant had been unfairly dismissed however, the reason for his dismissal was not related to his disability.

The factual background in Mr J Unwin v Communities Academy Trust

Mr Urwin was employed by Grange Park Primary School, which is operated by the Respondent as a teaching assistant, from 1 November 2014. He was dismissed for gross misconduct on 18 December 2017.

Before working for the Respondent, the Claimant had worked for Royal Mail from 2001 to 2013. In 2010 Mr Unwin witnessed his son fall from his bike and break his lower jaw and, as a result, he suffered severe trauma. In October 2011 the claimant was diagnosed with post-traumatic stress disorder (“PTSD”) from this incident. Mr Unwin left the employment of Royal Mail on grounds of ill-health on 18 December 2013. He then experienced a period of unemployment during which he continued to be unwell and went through cognitive behaviour therapy counselling.

Mr Unwin’s children attended Grange Park Primary School and he began volunteering there in 2013. This went well and in September 2014 he was offered part-time employment. Mr Unwin disclosed to Mrs Nicky Brown, the Deputy Headteacher, that he suffered from anxiety and that he was receiving counselling, but he did not disclose to the school or her that he had been diagnosed with PTSD. Mr Unwin claimed that he did not disclose this information because he did not regard himself to be disabled. After three years of employment by the school, Mr Unwin was offered a full-time role as a year six teaching assistant.

The first incident of concern occurred in January 2017 when a child ran past the Claimant and Mr Thorpe, the Headteacher, when it was wet outside and the floor surface was slippery. The claimant says he put out a hand to slow the child down however, Mrs Millington, a fellow colleague, alleged that he “had put his arm around the neck of a child to stop him running down the corridor”.

Following this, in March 2017 the second incident occurred during lunchtime. As part of his job as a teaching assistant, Mr Unwin undertook supervision duties during break times and was overseeing a football match where it was alleged that he shoved a pupil. Following this incident, the Claimant was told that he should “hand situations over to senior management” however when he asked Mr Thorpe for further guidance he was not provided with anything meaningful.

The final incident, and that one which would lead to Mr Unwin’s dismissal, occurred on 18 July 2017. The school held an end of year performance that took place on the stage of the neighbouring high school. Mr Unwin and Ms Trevor, another teaching assistant, were standing on one side of the stage and Mrs Brown and Mrs Millington were on the opposite side. Mr Unwin was standing behind two boys, referred to as A and RW, in the wings. During the performance, there was an altercation between the claimant and A, witnessed by Mrs Millington. The two boys began messing about and the Claimant alleged that he thought A was going to hit RW so he reacted by moving RW to one side with one arm and turned A round to face him. Mrs Millington alleged that she saw Mr Unwin “swung” A round with very considerable force and after the performance raised concerns about what she had seen with Mr Thorpe and Mrs Brown.

The next morning A’s mother came into school and met with them to make a complaint about the claimant’s conduct the night before. She had not been at the performance herself but made a complaint based on what she had been told by A, which was that Mr Unwin had “grabbed him by the shoulder” and pulled him round. It was decided that an investigation into possible misconduct should be conducted and Mrs Brown was appointed to investigate the case. When Mr Unwin arrived at school that morning, he was called into a meeting with Mrs Millington and Mrs Brown and asked to give an account of what had happened the night before. A decision was taken that day that Mr Unwin should be formally suspended while the investigation was ongoing and a letter was delivered to his home address by the School’s business manager, Ms Lisa Dugmore. This came as a huge shock to the Claimant and, in particular, reference to the police being involved in the investigation and was the cause of significant distress and anxiety.

By the time Mrs Brown completed her investigation report, Mr Unwin was too unwell to return to work. He was signed off sick by his GP with the reason for absence being stress. PTSD is not mentioned as a cause. Mr Unwin also began counselling at this time and a decision was made to refer the claimant to an occupational health provider to understand his fitness to attend the upcoming disciplinary hearing. The occupational health advisor sent a short report by letter on the day she saw the claimant. The report confirms that the claimant has reported no underlying or ongoing health problems and that his health problem was entirely work-related. Mr Unwin was assessed as being fit to attend the disciplinary hearing and it was advised that the disciplinary process should be completed as soon as possible. Mr Unwin was provided with a copy of the report and raised no objections.

The disciplinary hearing went ahead on 18 December 2017 and the decision to dismiss was confirmed by letter dated 21 December 2017. The letter refers to two allegations, which are the allegation of assault and the allegation of unprofessional behaviour which has damaged the school’s reputation. Mr Unwin submitted a grounds of appeal by letter on 16 January 2018 and the appeal hearing was held on 28 February 2018. Mr Unwin made it clear during the hearing that he thought insufficient attention was paid to A’s behaviour, at no point did he suggest that the decisions taken by the school were motivated by his PTSD. The appeal panel confirmed their decision to uphold the claimant’s dismissal by letter dated 12 March 2018. After receiving the appeal outcome Mr Unwin wrote a strongly worded open letter on Facebook, tagging the school, which made accusations about the governance of the school and Mr Thorpe.

Mr Unwin subsequently brought the following claims in the Employment Tribunal:

• Unfair dismissal
• Discrimination arising from disability
• Harassment related to his disability

The Employment Tribunal decision

Unfair Dismissal

When considering the claim of unfair dismissal the Tribunal looked at the investigation that led to Mr Unwin’s subsequent dismissal. Here they found that Mrs Brown was not impartial and therefore should not have been appointed to investigate this case. It was clear from the questions she had asked during the investigation that her mind had already been made up that Mr Unwin was guilty of gross negligence. She did not view the incident she was called to investigate in any other way nor did she think there was anything else to consider. They also found it troubling how involved Mrs Millington, who had raised the concerns, formed part of the team dealing with the investigation. Furthermore, Ms Trevor, who was the only neutral adult witness, was never interviewed by Mrs Brown. The Respondent conceded that the dismissal had been fair but even had they not, the Tribunal would have found that Mr Unwin’s dismissal was substantively unfair.

The Tribunal then considered the potential contributory conduct of the Claimant and found that Mr Unwin was not entirely without blame in the process. He had used some force to turn A and should not have refused to accept that the situation could have been handled differently. However, the Claimant had not been provided with the guidance he had asked for after the incident in March 2017 and so taking into account the balance of justice the Tribunal found it just and equitable to reduce the award payable to the Claimant by 25%.

Find out more about unfair dismissal claims

Discrimination arising from disability

The Respondent accepted that Mr Unwin was disabled at the time the incident in question occurred but disputed that it had knowledge of this disability, so the Tribunal had to consider whether it could have been reasonably expected to know that he was suffering from PTSD. They found that the Claimant, by his own admission, provided misleading information to his employer and furthermore he did not at any time during the disciplinary process or during the meeting with the occupational health advisor mention his disability. Therefore, the Tribunal concluded that the Respondent did not have knowledge of the Claimant’s disability or could it reasonably have been expected to know of his disability.

Find out more about disability discrimination claims

Harassment related to Disability

In regards to the harassment claims made the Tribunal found that there was no evidence to show that the Respondent’s actions towards Mr Unwin were motivated by or related to his disability. He was treated unfairly but unfair treatment on its own is not evidence of discrimination and as such the claim failed.

Find out more about harassment at work

Our lawyers’ view on Mr J Unwin v Communities Academy Trust

Rebekka Kreisz, paralegal at Redmans, commented on the case: “I fully agree with the Employment Tribunal’s decision on this case. The investigation into the allegations against Mr Unwin was seriously flawed and it no doubt would have worsened his mental state. However, I find it interesting that the Claimant choose to claim discrimination on the grounds of his disability and then made numerous statements throughout the hearing that he did not consider himself to be disabled. This, to me, begs the question of whether his disability was only something to be claimed when it was useful.”

The decision of the Employment Tribunal in Mr J Unwin v Communities Academy Trust 1302827/2018 can be found here

The post Teaching Assistant fired for alleged assault on child wins unfair dismissal claim (Mr J Urwin v Communities Academy Trust – 1302827/2018) first appeared on Redmans Solicitors.