In the recent case of Mr J Hawker v Devonport High School for Girls, Mr Hawker won his claim for unfair dismissal following the tribunal’s finding that the school’s investigation into the allegations of gross misconduct was unfair and unreasonable.
Case background
In June 2021, allegations were made by four pupils of Devonport High School for Girls against their teacher, Jonathon Hawker, claiming he had touched their thighs and massaged their shoulders. Mr Hawker was suspended by the School a month later. In August, two pupils in the year group above reported to the school that they had overheard the alleged victims saying that they were trying to get Mr Hawker fired, “for fun”.
The following month, Mr Hawker was arrested after two of the four alleged victims agreed to report their claim to the police, and in October the Teachers Regulation Agency imposed an Interim Prohibition Order preventing Mr Hawker from teaching. The school commissioned an internal investigation, which was carried out by the assistant, who had never carried out an investigation before. During this investigation, one of the alleged victims withdrew her allegations, stating she no longer wanted to be involved. The school failed to interview the two older pupils who had reported the allegations were fabricated. In February 2022, a disciplinary panel dismissed Mr Hawker for gross misconduct, however by March 2022 the criminal charges had been dropped by the police. Mr Hawker appealed the panel’s decision; however his appeal was rejected. Mr Hawker brought a claim for unfair dismissal to the employment tribunal.
The court’s finding
The employment Judge Martha Street decided that Mr Hawker had been unfairly dismissed and awarded him £44,868. When considering the evidence, the Judge stated that “I am not asked to determine whether or not Mr Hawker committed the misconduct alleged but whether the Respondent (the School) formed a genuine belief in that misconduct based on reasonable grounds following a fair and reasonable investigation and whether the Respondent acted reasonably in treating the misconduct as a sufficient reason for dismissal”.
When giving her reasoning, the Judge stated that the School ”excluded all contrary evidence and held back from any critical analysis or exploration of the students’ evidence against Mr Hawker” and that no reasonable employer would conclude that the alleged victims’ allegations were truthful without question, at least not without exploring evidence, including the reports of fabrication provided by the pupils in the year above. The Judge concluded that:
- the school’s failure to conduct a full investigation of all the evidence was unfair;
- the school was unreasonable to narrow the investigation to merely the accepted statements of the four girls who made allegations; and
- the school’s failure to explore evidence that would be supportive of Mr Hawker was also unfair.
What does this mean for schools?
When carrying out investigations into misconduct, schools should ensure that they conduct a fair and full investigation, considering all the available evidence. If schools fail to consider certain statements or evidence provided, then it is likely that any dismissal would be unfair.
Schools would also be wise to provide training to the members of staff who are responsible for conducting investigations. This would ensure that each school has a standard procedure for carrying out investigation, and would help staff to understand what evidence to collect and consider to ensure a full and fair investigation.
Finally, schools should ensure that they continue to foster a safe work environment for all staff until their investigation is concluded, and not be afraid to question such allegations. In her summary, Judge Street criticised the School stating: “I make no finding on whether Mr Hawker committed the misconduct alleged. What I can say is that if he is innocent, and a playground plot can end a career and destroy a reputation, the school is not providing a safe working environment for its staff, in particular for its male staff.”
How Moore Barlow can help
Having a clear disciplinary procedure in place, which sets out the requirements for an investigations, is key to ensuring a fair process takes place. We are on hand to help schools that would like support to put in place clear policies. Furthermore, if allegations of misconduct arise at your school, do feel free to reach out and speak to one of our Independent schools lawyers who can guide you through the investigation and disciplinary process.
