Deputy headteacher wins unfair dismissal claim against school who dismissed him for gross misconduct – Kitchener v The Thinking Schools Academy Trust.
Deputy headteacher, Mr Kitchener, was dismissed from Goodwin Academy for gross misconduct after he restrained a disruptive pupil by extending his arms to block her passage after she had walked out of her lessons, swore, wandered around corridors, threw items into classrooms and at people, and barged past visitors. The event was recorded on CCTV albeit not all of the footage was used as evidence in the investigation procedure that followed.
It was not disputed that the child was being verbally and physically abusive towards Mr Kitchener. She hit him around the head 5 times, broke his glasses and kicked him whilst he attempted to restrain her.
Following an investigation into the incident, the school made the decision to dismiss Mr Kitchener for gross misconduct without notice. The Tribunal found that this decision was procedurally unfair and the school had failed to provide Mr Kitchener with training on physical intervention in line with its own policies.
Guidance, policy, and training
Mr Kitchener agreed he had training on the DfE guidance “Use of Reasonable Force” and was aware of the school’s Positive Handling Policy on the use of physical force to restrain children but was not familiar with it. The DfE guidance was to be read together with the Positive Handling Policy.
The school’s code of conduct stated the school would “provide training and guidance to all staff who have or are likely to have a duty to intervene physically” with students. Mr Kitchener said that he had not had training and was following DfE guidance which permits handling of pupils in certain circumstances.
The Tribunal agreed that Mr Kitchener had not received this training which the school was obliged to provide under its own policies. This exposed Mr Kitchener to a risk as a result, and he was physically assaulted.
The Tribunal commented that Mr Kitchener had lost his job because he did not have the tools to handle the situation with the disruptive and “out-of-control” student that the school was supposed to and failed to give him.
What this means for schools
Schools are reminded to consider DfE guidance on the “Use of Reasonable Force” and to ensure that staff are aware of and comply with any internal policies on physical intervention and safeguarding. It should also ensure that staff are provided with up-to-date training.
It is also worth noting that whilst conduct is a potentially fair reason for dismissal, schools are reminded of the importance of conducting an investigation into the alleged conduct to determine whether there is a disciplinary case to answer. If schools would like support with conducting a disciplinary investigation and following disciplinary procedures, please contact one of our schools’ lawyers today.
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