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.