Headteacher Who Tapped Hand of Son Wins Unfair Dismissal Case

A London headteacher who was sacked for tapping her own son on the hand was unfairly dismissed, according to an Employment Tribunal.

Trigger warning: Readers may feel angered at the circumstances of this case.

You can read the Tribunal's full findings here.

The allegation and outcome:

Shelly-Ann Malabver-Goulbourne was previously the headteacher of Northwold Primary School, Hackney, which is part of the three-school Arbor Academy Trust. Each school within the Trust has its own Local Governing Board which is responsible, in the first instance, for dealing with complaints in relation to the headteacher.

Ms Malabver-Goulbourne had two children of her own attending the school - her son, who was 3-years-old at the time (identified as "J" by the Tribunal), and her daughter, who was 11-years-old at the time (who I shall refer to as "K").

On 17th January 2022, at around 6.20 pm, Ms Malabver-Goulbourne was working in her office at the end of the school day. As was often the case, her children waited in the office before the family embarked on the journey home. The school's designated safeguarding lead, Samantha Bhagwandas, was also present in the office having just attended a meeting with Ms Malabver-Goulbourne.

The Tribunal heard that at one point during the evening J picked up a bottle of hand sanitiser and started playing with it. Ms Malabver-Goulbourne spoke to J and told him to put the bottle down, tapping him on the back of the hand to get his attention. The Tribunal heard that J sometimes had difficulty focussing on his mother when she was speaking to him, which is why she wanted to draw his attention.

By way of context, the Tribunal was also told about an incident around a fortnight earlier where J had spilt hand sanitiser at home and rubbed it into his hair pretending it was styling gel. Some of the liquid had gotten into J's eyes, causing him distress and irritation.

Ms Bhagwandas was present at the time Ms Malabver-Goulbourne tapped J's hand and told him to stop playing with the bottle. According to her, and it doesn't seem disputed, J became upset at being challenged by his mother. Ms Bhagwandas said she spent a few moments calming J down. Ms Bhagwandas also told Ms Malabver-Goulbourne that she should not have tapped J on the back of the hand.

On 19th January Ms Bhagwandas reported Ms Malabver-Goulbourne's actions to the CEO of the Arbor Academy Trust, Maureen Okoye. She did this initially by telephone, but later submitted a cause for concern form and additional written statement. The Tribunal notes that "it is likely that the Claimant (Ms Malabver-Goulbourne) and Respondent's CEO (Ms Okoye) did not have a good working relationship". It should also be noted that the Trust's complaints procedure required complaints about the headteacher to be directed to the Local Governing Board.

Ms Okoye took advice from the Local Authority Designated Officer (LADO), social worker Liezel Le Roux, and the decision was taken to suspend Ms Malabver-Goulbourne, without prejudice, pending an investigation. Ms Okoye sent Ms Malabver-Goulbourne a letter to that effect, but it did not give any details of the allegation.

The police were informed of the allegation and Ms Malabver-Goulbourne was interviewed. This is the first time she became aware of the circumstances of the allegation made. A few days later J and K were interviewed. The police concluded that allegation against Ms Malabver-Goulbourne fell well below the threshold needed for any further police involvement. The police were of the view that her actions could be considered "reasonable chastisement", which is a statutory defence against any allegation of parental assault against a child. The police noted that Ms Malabver-Goulbourne's actions may have been appropriate, given J's risk of harm from the hand sanitiser.

Despite this, the Trust instituted an investigation into the complaint against Ms Malabver-Goulbourne. The investigation, headed by social worker Nick Pratt, considered the Trust's own policy documentation in relation to staff touching children and relevant DfE statutory guidance, including Keeping Children Safe In Education (KCSIE) and Working Together To Safeguard Children. It also considered live evidence from Ms Bhagwandas and Ms Malabver-Goulbourne.

Given evidence Ms Bhagwandas was adamant that Ms Malabver-Goulbourne's actions, in tapping J on the back of the hand, were not reasonable, justified or compliant with the Trust's behaviour management or safeguarding policies.

Ms Malabver-Goulbourne denied any intention to hurt J, saying that she just wanted to get his attention and remind him of the dangers of the hand sanitiser. She added that J only became upset because she had taken the bottle away from him.

Mr Pratt concluded that there was a disciplinary case for Ms Malabver-Goulbourne to answer. He said he found that Ms Bhagwandas gave a credible account of the incident, including a claim that Ms Malabver-Goulbourne had warned J he was going to be smacked. Mr Pratt also criticised Ms Malabver-Goulbourne for her failure to self-report the incident, which happened on school premises and involved a pupil.

A disciplinary panel was convened, to determine the single allegation that Ms Malabver-Goulbourne "assaulted a pupil/child whilst in a position of trust and on school premises".

The panel found the allegation proved and decided to dismiss Ms Malabver-Goulbourne on the basis that "she may not deal with a similar situation in an appropriate way" and it had therefore "lost trust and confidence in her".

In its decision letter, the disciplinary panel said: "the Trust expressly forbids any physical chastisement or contact of any kind. Therefore, whether a tap or otherwise, this was unnecessary physical contact with a pupil, which constitutes an assault, and therefore a breach of policies and statutory guidance".

However, as noted by the Tribunal, there is no evidence to confirm the Trust's assertion that it "expressly forbids... contact of any kind" - indeed several of the Trust's only policy documents and DfE statutory guidance describe circumstances where physical contact might be appropriate. The Trust's decision to dismiss on that basis is therefore flawed and unlawful.

Opinion:

This is a very, very sad state of affairs, which will undoubtedly now cost the Arbor Academy Trust a lot both financially and in terms of reputational damage.

As a mother it is entirely a matter for Ms Malabver-Goulbourne how she interacts with and disciplines her children, as long as she remains within the confines of the law. There is absolutely no suggestion she has done anything unlawful in this case.

However, as a teacher she is subject to different rules and expectations in regard to how she interacts with and disciplines pupils at the school.

I think most people would agree that first and foremost, Ms Malabver-Goulbourne acts as a mother towards her children - particularly late in the evening (6.20 pm), when it's cold and dark outside (January), everyone has had a long day at school, young children are getting irritable and desperate to get home.

I think most people would be able to separate out the roles of mother and teacher and see the clear distinction between the two. Most people, that is, apart from Samantha Bhagwandas, who apparently lacks the common sense and aptitude to distinguish between them.

Bhagwandas is no longer at Northwold. I worry about her new colleagues. I know that I wouldn't want to work alongside her. I wouldn't want to be the next one thrown under the bus.

Condensed Summer Holidays in Favour of Longer Mid-Term Breaks

There has been a lot in the media recently about the idea of reducing the long summer holidays in favour of longer mid-term breaks.

I have to say that I really would be in favour of such an idea. If you're anything like me, then half-way through the six week summer holidays I am absolutely climbing the walls and desperated to be back in the normal school routine. However, by the time if gets to the October mid-term holiday I am practically on my knees and only a week off is barely enough time to recover.

Another disadvantage of the long summer holiday is that students' learning tends to suffer. Students also get out of the routine of learning and fall into bad habits. The stability of school is also beneficial, particularly to those from disadvantaged backgrounds.

I would happily reduce the summer holidays by three weeks and add an extra weeks' holiday to each of the mid-term breaks. I find the Autumn term, which tends to be the longest, particularly gruelling. The cold, dreary days do little to help matters.

The Unity Schools Partnership (USP) is a multi-academy trust with 33 schools in the south east of England. The Partnership recently trialled a fortnight-long mid-term break in October, which was warmly received and had the effect of reducing staff absences by half and student absences by a quarter.

Tim Coulson, chief executive of the USP, said: "While a majority of staff and parents were in favour of the two-week half term, we acknowledge and take seriously all those comments from individuals not in favour of the proposal.

"Although there are various views, the two most significant are the cost of childcare and how learning time is made up."

The Welsh Government recently proposed a reduction of their school summer holiday, so it would be nice if their UK counterparts would consider doing the same in England.

Teacher Settlement Agreements

A settlement agreement is a mutually convenient way of an employer terminating the employment of a teacher.

The benefit to the employer is that they can swiftly and quietly remove the teacher from their position and take steps to recruit a replacement. The benefit to the teacher is often a favourable reference and some sort of financial remuneration.

Settlement agreements are increasingly common in the education sector. In the last five years, in my role as a union caseworker, I have helped teachers successfully negotiate their exit on several occasions. Many of those have found themselves subject to capability or disciplinary procedures, but an increasing number simply want to escape the relentless daily grind of what is becoming a thankless task.

In this article I give a brief overview of how and when settlement agreements are used. As you will understand, I cannot go into specific examples. I can, however, discuss some of the key features that seem to appear in every teacher settlement agreement.

As I am based in England this article will primarily focus on the situation in England and Wales. The relevant conditions of service and legislation may well be different in Scotland and Northern Ireland.

When are settlement agreements used?

Certainly in the state sector, most teachers are employed in accordance with a document called the Conditions of Service for School Teachers in England and Wales (the so called Burgundy Book). This document sets out main terms and conditions of employment enjoyed by teachers, which are generally pretty favourable.

One major gripe about the conditions is that teachers can normally only terminate their employment on three occasions during the year - the 30th April (in which case they need to give their employer notice by 28th/29th February); the 31st August (in which case they need to give their employer notice by 31st May); and 31st December (in which case they need to give their employer notice by 31st October). If the teacher misses any of the notice deadlines then theoretically they would need to wait until the next resignation window, which could be a period of up to 6 months if they fall unlucky with the dates.

There are clearly situations where a teacher needs to leave their employment in a far shorter timeframe than that. That might be the case if the teacher has somehow become a disgruntled employee; if they have become subject to some sort of disciplinary or capability proceedings; or if they are on a protracted period of sickness absence. In those situations the employer might be willing to allow the teacher to terminate their employment early by mutual agreement. In these situations a settlement agreement allows the employer to protect their own interests by allowing the teacher to terminate their employment on certain conditions.

What are the terms of a settlement agreement?

A settlement agreement is legally binding on both parties. Entering a settlement agreement will allow a teacher to terminate their employment on the agreement that they waive their rights to make a future claim against the employer at an Employment Tribunal.

It might also include the following terms:

• That the teacher does not make any derogatory comments about the employer, their other employees, their students, or the parents/carers of their students;
• That the teacher does not disclose the contents of the settlement agreement, apart from when they are under a statutory obligation to do so;
• That the teacher withdraws any outstanding grievances or complaints against the employer;
• That the teacher makes arrangements for the return of any property belonging to the employer;
• That the teacher does not return to the employer's premises;
• That the teacher does not engage in employment-related conversations with other employees;
• That the teacher does not make any future subject access or freedom of information requests to the employer.

In return, the employer might agree to the following:

• The teacher's termination of employment on an agreed date;
• To pay the teacher's legal fees in relation to the agreement;
• A termination payment as compensation for loss of the teacher's employment (these payments are typically tax free);
• A payment in lieu of notice (PILON) if the teacher is allowed to terminate their employment before the end of the normal notice period (PILON is taxed at the usual rate);
• An agreed reference for the teacher;
• The teacher having a say on how their departure is announced;
• Not to make any derogatory comments about the teacher and to ensure, as far as reasonably possible, that none of their other employees do either.

Are there any terms that cannot be included in a settlement agreement?

A settlement agreement cannot require a teacher to waive their rights to make a protected disclosure (e.g. blow the whistle) under the terms of section 47B of the Employment Rights Act 1996. This means the teacher could still report any act of criminal wrongdoing or breach of statutory obligation by the employer (or other employees) to the appropriate body.

A settlement agreement cannot require a teacher to waive their rights in relation to any future, unforeseen medical condition directly attributable to their employment. This means a teacher could still make a claim against the employer if it later transpires the school was riddled with asbestos and they develop asbestosis as a result.

A settlement agreement cannot require a teacher to waive their rights in relation to the enforcement of that agreement.

How do you negotiate a settlement agreement?

A teacher's trade union will usually negotiate any settlement agreement on their behalf. The agreement is a two way process - if the teacher is dissatisfied with any of the proposed terms of the agreement they can ask the union to renegotiate them.

Once the wording of the agreement has been finalised, the teacher is obliged to seek independent legal advice about the consequences of entering into it. The union would normally arrange this for the teacher.

How much is a teacher settlement payment?

It depends on the circumstances, but generally speaking the teacher will have greater negotiating power if:

• They would have valid grounds to make a claim at the Employment Tribunal;
• They have knowledge or information which, if it were known to other people, could cause serious reputational damage to the employer;
• They are on sickness absence due to a work-related illness or injury.

It would be fairly typical for the employer to offer two or three months' PILON.

Those teachers in a stronger position might be offered two or three months' termination payment in addition to two or three months' PILON.

Those teachers in the strongest position might be offered something just below what they could reasonably be expected to be awarded by an Employment Tribunal.

What happens if I break the settlement agreement?

A settlement agreement usually includes a clause requiring the repayment of all monies paid in pursuance of the agreement in the event of a breach. The employer could take legal action against the teacher if they failed to make the requirement repayment. The employer would likely decline any future reference requests in relation to the teacher.