A Blackburn teacher has won his employment tribunal claim for wrongful and unfair dismissal after a pupil lied about being locked in a cupboard as punishment for unruly behaviour.
In January 2020 Mr Basit was teaching maths to a Year 9 class at Pleckgate High School when he asked “pupil A”, who was disengaged and appeared to be dozing, to stand at the back of the classroom.
There was a large cupboard at the back and Basit made a comment to pupil A, a boy with hundreds of behaviour complaints against him and who enjoyed playing the “class clown”, which resulted in pupil A getting into the cupboard. He exited it a short time later.
Unbeknown to Basit, pupil A and two others then made a complaint to the headteacher. Pupil B said Basit had forced A into the cupboard and statements were taken separately from each pupil. The three statements alleged a number of potentially unprofessional incidents, including Basit throwing a book, in class against the claimant relating to the afternoon in question and other occasions.
The following Monday, Basit, who denied any wrongdoing, was suspended for unprofessional conduct, for instructing “a pupil to get into a cupboard for a prolonged period of time, in the presence of peers during a lesson”. This, said the suspension letter, brought into question the trust and confidence placed in him as an employee at the school.
The HR function should avoid straying into areas of culpability and it was unreasonable in this instance to do so” – Judge Ord
Basit, who had been repeatedly commended for his behavioural management, told the deputy head that the incident was meant as a joke. He wrote “I asked [A] to go into the cupboard as a joke… I didn’t think he’d actually go in, but he did. I thought I’d entertain it but took him out as it was clear he wasn’t leaving himself… I have a running gag that the cupboard is haunted just to egg on the low-set pupils into working.”
An investigation by Education Partnership Trust, which runs the school, found that on the balance of probabilities the pupil entered a cupboard, the impact of which had the potential to have a detriment to a pupil’s emotional wellbeing.
“The incident brings into question the claimant’s professional judgment, which was found to be in breach of the school’s behaviour policy and teachers’ standards,” it found. The trust dismissed Basit for gross misconduct with immediate effect.
An appeal was held, during the first Covid-19 lockdown, by way of written representations. “The appeal panel considered the claimant’s credibility without seeing him even remotely,” said employment judge Liz Ord.
“At the tribunal hearing the claimant came across as a credible witness who gave consistent evidence, but the appeal panel did not have the benefit of such an observation.
“Given that the claimant’s credibility was paramount to the decision, it was important that the appeal panel was able to see him to assess his trustworthiness. Even if a face-to-face hearing was not possible due to the pandemic… there were sufficient remote platforms available to conduct a remote hearing by video conference. To conduct a wholly written procedure in the circumstances was unreasonable.”
She added that the “four and a half months” from summary dismissal to reach an appeal decision prolonged the stress on the claimant, which affected his health. Even with the difficulties of lockdown, the extent of the delay was unreasonable.
The tribunal judge said there were “significant faults at each stage” of the disciplinary procedure: “At the time the claimant was asked to give his initial statement, he was not told that there was an investigation and that the statement was being taken in evidence. When asked to an investigatory interview by [in-house HR adviser] Ms McGonagle, she did not warn the claimant of the potential outcomes.”
“On a number of occasions Ms McGonagle overstepped her remit as HR adviser,” said the judgment, “and ventured into aspects of the actual investigation and disciplinary decision making, thereby exerting improper influence… The HR function should avoid straying into areas of culpability and it was unreasonable in this instance to do so.”
The judge remarked that despite pupil A initially saying the claimant locked the cupboard door and then changing his mind in a later statement, the appeal panel did not think this impacted on A’s credibility.
The judgment reads: “For a well thought of teacher of good character with a good disciplinary record, dismissal was an extremely harsh sanction and not within the band of reasonable responses.
“The tribunal finds that the claimant made a remark to pupil A in jest to the effect that he might as well get into the cupboard given that he found himself at the back of the room so often. The claimant’s style of teaching was often light-hearted and he sometimes used humour in class.
“This was understood by the pupils… This was not gross misconduct on the part of the claimant and did not amount to a repudiatory breach of contract that entitled the respondent to summarily dismiss him. Therefore, the claimant’s complaint of wrongful dismissal is well founded.”