Employment Law Case Update: Witnesses in disciplinary hearings

As an employer, it is likely that you will be called upon to carry out disciplinary proceedings.  The case of Lewis v The Governing Body of Tairgwaith Primary School illustrates the importance of making reasonable effort to ask witnesses to attend disciplinary hearings if you find yourself in the situation.

Miss Lewis was a primary school teacher until 2017 when the school received a complaint that she’d hit a pupil on the head with a book and she was dismissed.  Head teacher, Nigel Thomas, reported the incident to a Professional Abuse Strategy Meeting (PASM), but, not believing the allegation, he didn’t suspend Miss Lewis from work. Instead he placed a teaching assistant in her classroom to decrease the chance of further allegations.

A further complaint against Miss Lewis was then reported by the mother of a different pupil, claiming she had grabbed the child, pulling them to the floor to prevent them from walking around the classroom when not permitted to do so.

With both complaints having been reported to PASM, it was concluded that the first was not substantiated, but the latter complaint was. PASM stated the school should consider if any disciplinary action was relevant. Mr Thomas then commenced an investigation with SERVOCA, a specialist child protection organisation, and subsequently held a disciplinary hearing with Miss Lewis.

During both the disciplinary hearing and appeal, Miss Lewis requested the attendance of two teaching assistants as witnesses who had provided evidence regarding the second complaint - but the witnesses did not attend. After both meetings, Miss Lewis’ actions were found to amount to gross misconduct and she was dismissed.

At the employment tribunal one of the requested teaching assistants expressed they were “discouraged from attending” the disciplinary meetings by the school. This led the ET to conclude the school had not made reasonable attempts regarding the attendance of the witnesses and that Miss Lewis had been unfairly dismissed.

The tribunal stated that in circumstances where outcomes may be “career ending”, employers should ensure relevant witnesses were present where requested, and sole reliance on SERVOCA’s report did not amount to an employer acting reasonably.

This case demonstrates the importance of collecting evidence from as many relevant individuals as possible, and that in conducting a fair investigation, all relevant witnesses are present and not just those whose testimony will result in the desired outcome of the employer.

If you have any questions regarding this article, or you would like guidance on how to conduct a thorough and compliant disciplinary process, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.