Claimant’s Unfair and Wrongful Dismissal Claims Rejected by Employment Tribunal

OUTCOME: Dismissed

Case Number: 3305730/2024

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EMPLOYMENT TRIBUNALS

Claimant: [redacted] Respondent: [redacted] Watford Employment Tribunal On: 9 –11 February 2026 Before: Employment Judge Arullendran

REPRESENTATION:

Claimant: [redacted] Respondent: [redacted]

JUDGMENT having been sent to the parties on 17 April 2026 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:

REASONS

1. The claimant brought claims of unfair dismissal and wrongful dismissal against the respondent on 7 June 2024. The respondent defends the proceedings on the grounds that the claimant admitted her conduct and that it acted reasonably in treating that as a sufficient reason for dismissal and, as the claimant’s conduct fundamentally breached the contract of employment, there was no entitlement to notice pay.

2. There was a delay in starting the hearing because the parties had not brought sufficient hard copies of the hearing file and witness statements.

3. [NAME] the arguments raised by [NAME] which were incorrect in law, the claimant’s claim for damages in the Employment Tribunal for injury caused through wrongful dismissal and other similar incorrect claims, the issues to be determined by this Tribunal were eventually agreed by the parties on the first morning of the hearing as follows:

Case Number: 3305730/2024

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1. UNFAIR DISMISSAL 1.1 Was the claimant dismissed? The Respondent accepts the Claimant was dismissed. 1.2 If yes, what was the EDT? 14 March 2024 1.3 What was the reason or principal reason for dismissal? The Respondent says misconduct in that the Claimant had committed the following acts: Professional gross misconduct: 1.3.1 Overfamiliarity with [NAME] including meeting with [NAME] who are no longer under the remit for direct [NAME] support and some of whom had left the [COMPANY]; 1.3.2 Making decisions outside of the Claimant’s remit. Breach of safeguarding protocols: 1.3.3 Failure to consistently adhere to safeguarding protocols set out in KCSIE and the Staff Code of Conduct; 1.3.4 Failure to consistently record and share information with relevant colleagues or on the “[NAME]” system; 1.3.5 Failure to consistently safeguard [NAME].

1.4 If the reason was misconduct, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether: 1.4.1 there were reasonable grounds for that belief; 1.4.2 at the time the belief was formed the respondent had carried out a reasonable investigation; 1.4.3 the respondent otherwise acted in a procedurally fair manner; 1.4.4 dismissal was within the range of reasonable responses.

2. WRONGFUL DISMISSAL

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3 2.1 What was the claimant’s notice period? 2.2 Was the claimant paid for that notice period? 2.3 If not, was the claimant guilty of gross misconduct?

3. REMEDY FOR UNFAIR DISMISSAL 3.1 As the claimant wishes to be reinstated to their previous employment should the Tribunal order reinstatement? The tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just. 3.2 If there is a compensatory award, how much should it be? The Tribunal will decide: 3.2.1 What financial losses has the dismissal caused the claimant? 3.2.2 Has the claimant taken reasonable steps to replace their lost earnings, for example, by looking for another job? 3.2.3 If not, for what period of loss should the claimant be compensated? 3.2.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason (Polkey v AE Dayton Services Limited [1997] IRLR 503)? 3.2.5 If so, should the claimant’s compensation be reduced? By how much? 3.2.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 3.2.7 Did the respondent or the claimant unreasonably fail to comply with it? If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%? 3.2.8 If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct? If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion? 3.2.9 Does the statutory cap of fifty-two weeks’ pay apply? 3.3 What basic award is payable to the claimant, if any?

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4 3.4 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? 4. REMEDY FOR WRONGFUL DISMISSAL 4.1 Is the Claimant entitled to receive compensation for breach of contract? If so, how much?

4. I heard witness evidence from the claimant’s, [APPELLANT] ([NAME] [NAME]), [APPELLANT] ([NAME]), [NAME] (mother of [NAME]), [RESPONDENT] ([NAME]), [RESPONDENT] (Head of the [RESPONDENT]) and [NAME] (Head of [COMPANY]). An issue was raised about three days being insufficient to hear witness evidence from 27 people within the three day allocation. I made it clear that, as both parties have been professionally represented throughout the entire proceedings, it was incumbent on them to inform the Tribunal if the length of hearing appeared to be insufficient but no such application was made prior to the hearing.

5. Witness statements were provided for 21 other witnesses by the claimant but they were not called to give evidence. I have given those statements the appropriate weight given that the statements were not sworn and the evidence was not tested in cross examination particularly given that none of the witnesses were present at the time of the alleged events and their statements do not provide any evidence on those matters contained in the agreed list of issues.

6. I was provided with a joint bundle of documents consisting of 509 pages. I have only taken into account those docs which have been referred to in evidence. The [NAME] did not have the correct bundle of documents in front of her and the [NAME] provided her with copies of the missing pages.

7. The [NAME] were in attendance at the hearing, however neither side had made any applications under Rule 49 prior to the hearing. [NAME] provided the [NAME] with documents relating to the claims which included names of [NAME] under the age of 18 without making any efforts to safeguard the identity of the children. I made anonymity and restricted reporting orders at the beginning of the hearing and the hearing was delayed until such orders were in place.

8. The first morning of the hearing, up to 12:15 PM, was taken up with preliminary matters, many of which should have been dealt with by the parties

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5 (who are both legally represented) in the months and weeks leading up to the hearing. I took one hour to read the witness statements and the documents referred to in those statements. I explained to the parties that I would only take into account those documents which were referred to in evidence.

9. The parties agreed to abide by a hearing timetable whereby all the evidence and submissions would be completed by the end of the second day of the hearing. The [NAME] insisted that the claimant’s evidence should be heard first, despite this being a case where the reason for dismissal was disputed. Rather than spend time arguing the issue, I agreed to the claimant giving her evidence first. However, the [NAME] then complained that the respondent’s witnesses were listening to the claimant’s evidence before they had given their evidence and I explained that the situation was of her making as she insisted on the claimant going first. Timings for each side to complete their evidence was agreed in advance, however the [NAME] did not stick to the agreed timings and when I gave warnings that her time limit was coming to an end the representative sought to argue with me about why she should be given more time, for example she complained that a 10 minute comfort break had taken 30 minutes which was untrue and I was able to read out the times from my notes indicating when the parties had left and entered the hearing room which demonstrated that the break was approximately 12 minutes. [NAME] did not cross examined the [NAME] about the sanction of dismissal, even when I pointed out that she was nearing the end of the time allocated to complete her cross examination (plus a further extension which was granted at the hearing) and that she had not covered all of the issues set out in the agreed List of Issues. Whilst the [NAME] made his submissions within the agreed time limit, the [NAME] overran the time limit for submissions which resulted in the submissions being curtailed. The management of the claimant’s case prior to and at this hearing has been less than ideal, however my decision is only based upon the evidence I have heard, the findings of fact based on evidence and the application of the relevant law to those facts.

10. Both sides made closing submissions by reference to written submissions which were forwarded to the Tribunal on the third day of the hearing. The submissions have been taken into account in full, but are not reproduced in these Reasons.

11. I have made my finding of facts on the balance of probabilities. The reference to page numbers are pages in the Tribunal bundle which is also referred to as the Hearing File.

Case Number: 3305730/2024

6 The Facts

12. The claimant began her employment with the respondent on 5 September 2009 and was employed as a [NAME] and assistant head of the [COMPANY] with [NAME] responsibilities for [NAME] in years 10 and 11. The respondent is a [COMPANY] employing approximately 170 people.

13. It is common ground that claimant’s [NAME] duties included taking responsibility for the welfare of [NAME] and their personal development with a view to achieving good standards of behaviour and monitoring [NAME] progress. This included the claimant providing guidance and advice to [NAME] on educational and social matters.

14. During the Covid 19 pandemic the respondent required its staff and [NAME] to use [NAME] as a remote method of communication. The [COMPANY] provided some guidance to its staff on 24 March 2020 in respect of how [NAME] was to be used.

15. The claimant received training over the course of her employment with the respondent, as set out at page 465. That training included training on safeguarding, the code of conduct, child protection and training on the KCSIE (keeping children safe in education) requirements.

16. The claimant was provided with a contract of employment by the respondent (pages 99 to 106) it is common ground that the claimant was aware of the disciplinary procedures which were set out in the staff handbook and she agreed by signing the contract of employment to observe the respondent’s rules as communicated by the head [NAME] and set out in the staff handbook. A copy of the respondent’s disciplinary procedure is at pages 159 to 167. That procedure requires employees to ensure they understand and follow the respondent code of conduct, uphold public trust in the profession and maintain high standards of ethics and behaviour, have an understanding of and always act within the statutory frameworks which set out the professional duties and responsibilities. The statutory guidance for [NAME] and colleges referred to as KCSIE can be seen at pages 288 to 331. This document refers to the individual [COMPANY]’s code of conduct and states that all staff must be aware of the systems within the [COMPANY] which support safeguarding.

17. A copy of the respondent’s staff code of conduct can be seen at pages 246 to 269. The claimant was aware of and trained on the applicability of this code throughout her employment with the respondent and it is common ground that this document set out the expectations of standards and behaviour to be

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7 maintained within the [COMPANY]. At page 248, the code sets out the requirements in respect of appropriate [NAME] relationships with reference to appendix 3 and appendix 4 of that document. The code requires teachers to ensure they maintain appropriate professional relationships at all times and that communication with [NAME] are to remain appropriate and professional at all times. Appendix 3 which can be seen at page 256 states that prearranged meetings with [NAME] outside [COMPANY] should not be permitted unless approval is obtained from their parents, [NAME] and the [NAME]/designated safeguarding lead. If a member of staff is holding such a meeting, they should inform colleagues before the meeting. The code provides that teachers should avoid unnecessary contact with [NAME] outside [COMPANY], they should not give their home address, telephone number or email address and they should not send personal communications to children unless they have been agreed with the [NAME]. The code also provides that staff should not make arrangements to meet [NAME] individually or in groups outside [COMPANY] other than on authorised [COMPANY] trips, they should avoid contacting [NAME] at home unless it is strictly necessary and should keep a record of any such occasion, they should report and record any situation which may place a child at risk or which may compromise the [NAME] or the teachers professional standing and they must never engage in secretive social contact with [NAME] or their parents. Appendix 4 (page 260) provides that all communication with children from a [NAME] or parents should conform to [COMPANY] policy and be limited to professional matters. Appendix 5 (page 262) states that the [NAME] should seek permission from the [NAME] before taking photographs or video camera footage of any [NAME] in class at any [COMPANY] event or on a trip and they should seek permission before displaying these photographs and must not take images of [NAME] using personal devices such as mobile phones or tablets.

18. On 11 September 2023 the [NAME] and designated safeguarding lead became aware of a concern raised by a [NAME] regarding an exchange of messages on Teams. On 14 September 2023 the claimant was asked to attend a meeting with the [NAME] head and the claimant was told that allegations had been made that a [NAME] had received messages on Teams that made her feel uncomfortable and that message did not seem appropriate or in line with the code of conduct; the claimant had allegedly been messaging to [NAME] out of [COMPANY] hours and during [COMPANY] holidays; the claimant knew that a [NAME] was intoxicated in [COMPANY] and did not disclose that information to the designated safeguarding lead; the claimant had disclose confidential information about other parents; and the claimant had been seen with [NAME] out of [COMPANY] and may have shown poor judgment in meeting students who had recently graduated. The head explained to the claimant that they had

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8 received advice from the local authority designated officer (LADO) that they should investigate these allegations. At the beginning of the investigation the claimant agreed not to send messages to [NAME] any further and only to respond to [NAME] on academic matters and the claimant was advised not to meet ex-[NAME] socially outside [COMPANY] hours in private.

19. The respondent sent a letter to the claimant on 15 September 2023 outlining the discussions and the allegations (page 339 and 340). The letter explained that an investigation would take place and that the aim of the investigation was to establish the facts by gathering as much relevant information as possible.

20. The claimant attended an investigation meeting with [APPELLANT] on 26 September 2023. Minutes of the meeting are at pages 345 to 349. The claimant confirmed that she used Teams outside of [COMPANY] hours and during the [COMPANY] holidays to catch up with students and, although she believed the messages were not inappropriate, the claimant accepted that some of the comments should not have been made. The claimant denied sharing confidential information with parents and she denied not informing the designated safeguard lead (DSL). Although the claimant stated that she had never met with current students outside [COMPANY], she admitted that she had met a [NAME] student following their A-level examinations. In cross- examination the claimant’s sought to allege that these minutes were incomplete, however she accepted that she had never prior to attending this hearing told the respondent that the minutes from the investigation meeting were incorrect and she had in fact said, in terms, during the respondent’s internal process that they were correct.

21. [NAME] produced a report from his investigation (466 - 468). He concluded that the claimant acted unprofessionally, there were blurred boundaries but there was no evidence of safeguarding risks. He also concluded that, due to the nature of the claimant’s role as [NAME] lead of the [COMPANY], he had concerns about her lack of judgement of boundaries. He also noted that red flags were raised from Ms [APPELLANT] who works closely with the claimant and she had raised concerns of ongoing patterns of concerning behaviour to do with withholding of information and giving prioritised attention to certain students which left Ms [NAME] feeling unable to cope with her role of working closely with the claimant. He concluded that, had the claimant been a regular [NAME], he would have been satisfied that the conduct had now stopped but, because the claimant had a significant [NAME] role in the [COMPANY], he recommended further investigation.

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9 22. On 20 November 2023 the [NAME] received notes from the LADO as set out at pages 482 to 497. Allegation 6 (page 494) was substantiated but none of the other allegations upheld. The LADO recommended that the respondent sought HR advice and follow its own internal disciplinary procedures (page 495 and 496) the LADO also referred to a previous safeguarding matter which was referred to them on 27 March 2023 regarding the claimant allowing a child to sleep across the end of her bed (page 497).

23. On 24 November 2023 the respondent wrote to the claimant requiring her attendance at a disciplinary hearing on 29 November 2023. That letter did not state that potential outcome may be dismissal. It set out to allegations which were to be considered: sending inappropriate messages to student causing distress or making them feel uncomfortable and sending inappropriate messages to students outside [COMPANY] hours and unrelated to [COMPANY] matters. The claimant asked for the disciplinary hearing to be rescheduled so that her [NAME] representative could attend with her and it was rescheduled to 12 January 2024. However, the respondent’s director of HR found further concerns during their investigation and wrote to the claimant on 13 December 2023 (page 387) explaining that they wanted to have an opportunity to investigate these further concerns properly and that it would not be appropriate to hold the disciplinary hearing at that stage.

24. On 5 January 2024 the respondent wrote to the claimant again and explained that Mrs [APPELLANT] had been appointed to undertake the further investigations and that a significant number of Teams conversations were to be reviewed which meant that the matter would take longer than originally anticipated. The claimant was sent copies of the Team messages on 5 and 8 January 2024. Mrs [NAME] was to be the disciplining officer on 12 January 2024, but the respondent took the decision that she would be the best person to carry out further investigations instead. Mrs [APPELLANT] had not met with the claimant or chaired any hearings with her in relation to this matter at the time she was asked to investigate further. The parties agreed that the hearing which had been arranged for 12 January 2024 could be used as an investigation meeting, particularly as the claimant requested that it take place as soon as possible.

25. The claimant attended the second investigation meeting on 12 January 2024 and a copy of the minutes are at page 397 to 399. Mrs [APPELLANT] explained that she wanted the claimant to have the opportunity to put on record any points that she wished to make rather than going through a set of prearranged questions. The claimant explained that she had got used to using Teams but on reflection she thought she had got carried away and that she was not

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10 proud of it. The claimant also stated that she continued to meet with some [NAME] once they were no longer in her [NAME] remit or [NAME] and that she was friendly with some [NAME] who she met socially and that some of the [NAME] belonged to those [NAME]. The claimant accepted that she felt she had “went wrong” and “overstepped the line”. And she also confirmed that some of the conversations which took place were about holidays and shopping and dating life which she understood were “too familiar”. The claimant expressed feeling embarrassed and letting herself down when she looked at the messages which had been sent by her. The claimant stated in this meeting that she was satisfied that the minutes with [NAME] were an accurate representation of what was said during that investigation.

26. [NAME] spoke to [NAME] ([NAME]), [NAME] and [NAME] (head of upper [COMPANY]) (pages 410 to 414). Mrs [APPELLANT] said that she had concerns the claimant had received information that she had not reported to designated safeguard leads (DSL) which should have been done as part of her safeguarding duty. She also raised concerns about receiving emails from parents on matters which she was unaware of as the child had spoken to the claimant and that had not been passed on, that a colleague had no knowledge of [NAME] concerns relating to some children who continued to meet with the claimant and that this had come to light through later emails. Mrs [NAME] reported that Ms [APPELLANT] had approached her with concerns about the claimant in that she was supporting [NAME] but not informing her of the details of that support which made Ms [NAME] job difficult. Ms [APPELLANT] told Mrs [APPELLANT] that she was concerned the claimant was meeting with students but was not consistently reporting concerning behaviour or moods on [NAME] (a digital reporting system within the organisation) and that she felt undermined by the actions of the claimant as she was not kept informed by her. Mrs [APPELLANT] did not provide a copy of the minutes at pages 410 to 414 to the claimant because they had not been completed at the time she met with the claimant on 6 February 2024. Mrs [APPELLANT] sent those minutes to HR and they were then provided to the claimant with the names of the colleagues redacted. No explanation has been provided for the reasons for the redactions.

27. The respondent wrote to the claimant on 21 February 2024 (page 423 to 424) requiring the claimant to attend a disciplinary hearing on 29 February 2024. The letters set out allegations which were separated into 2 broad categories of professional misconduct and safeguarding protocols. The respondent set out that these were very serious allegations and could lead to a number of different disciplinary sanctions, including dismissal. The specific allegations were said to be over familiarity with [NAME], in some instances meeting with [NAME] who are no longer under remit for direct [NAME] support and some of

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11 who have left [COMPANY]; decisions being made outside of that remit; adherence to safeguarding protocols set out in KCSIE and staff code of conduct not being consistent; recording and sharing of information with relevant colleagues or on [NAME] not being consistent; safeguarding of [NAME] not being consistent.

28. The respondent provided the claimant with a copy of the investigation notes and reports on 21 February 24 (page 442). The claimant replied on 27 February 2024 (page 444) stating “I am aware of the allegations against me and I am embarrassed by them. In September I have not been in contact with current or previous students through any means of communication and I do not intend to be in contact with students again. I have learnt from this draining and stressful experience and I can only apologise for my behaviour. I know how wrong I was and how this should never have happened. The investigation process has been very stressful experience and apart from my recent sickness I have kept doing my job to the best of my ability. I just wanted to apologise for letting the [COMPANY] down and I hope that I can finally move from this terrible experience.”

29. The claimant attended a disciplinary hearing on 29 February 2024 and was accompanied by a [NAME] representative. Minutes from the disciplinary hearing can be seen at pages 427 to 440. The claimant confirmed that she had read all of the documents provided to her which included the notes Mrs [NAME] had taken from her discussions with Mrs [APPELLANT] and Ms [APPELLANT]. The claimant had provided the respondent with emails from parents in support of her employment. Mrs [NAME] thought that those emails had been forwarded by HR to Mr [NAME] who was the disciplinary officer, however it became apparent in that hearing that the claimant had only sent them to Mrs [APPELLANT] and she immediately agreed to forward copies of those supportive emails to Mr [NAME]. Once Mrs [NAME] had summarised her findings from her investigation and the allegations had been set out, the floor was opened to the claimant to respond to those allegations. The claimant’s [NAME] representative spoke on her behalf in respect of the further information gathered by Mrs [NAME] from the 3 colleagues she had interviewed and he took issue with the respondent carrying out a second investigation. Mr [RESPONDENT] explained that Mrs [NAME] had gone through 60,000 messages and that this had caused a delay in the investigation and that the advice from the LADO had been that the respondent should carry out a further investigation using its own internal procedures. The claimant stated that she acknowledged what she had done was wrong, that she had got carried away and apologised for doing so but that she had not carried on since September 2023 and would not do it again. The claimant stated that she was not in contact with [NAME] other than at [COMPANY] and she acknowledged what she had done and said that “the evidence is there” and

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12 that it was “poor judgement on her part”. Mr [APPELLANT] explained that he was keen for the claimant to have her say and to respond to everything, to which she stated that she felt she had been heard by Mrs [APPELLANT] and that Mrs [APPELLANT] had showed compassion. The claimant said that she was human and she had made an error for which she apologised. The claimant’s [NAME] representative referred to the information gathered by Mrs [COUNSEL] from Mrs [NAME] and Ms [NAME] and said that they should have acted sooner rather than later and should not have waited for the investigation to raise their concerns but he did not dispute any of the evidence from Mrs [NAME] or Ms [NAME] as being inaccurate. Mr [NAME] referred to a number of messages as examples of her conduct (but did not go through all 60,000 messages) and gave the claimant an opportunity to respond. Mr [APPELLANT] explained that it was a breach of the code of conduct to go to a [NAME]’s house and the claimant had been overfamiliar in requesting a [NAME]’s address. The claimant explained that the mother of the [NAME] was a friend of hers. Mr [NAME] explained that he was not making any judgement but that arrangements had to be made in accordance with the code (which requires prior authorisation and for the respondent to be notified of such meetings before they take place). The claimant was given an opportunity to comment on messages relating to gifting of rings to girls and [APPELLANT] to boys and the claimant said that she had done this for everyone in year 13. In terms of messages written to arrange lunch with [NAME], the claimant said that it was not a one-to-one lunch and the other students would join them. There was a message in relation to attending a dinner outside of [COMPANY] and the claimant explained that the student had left 4 years previously but did not recall meeting them for dinner, although it must have taken place as the person was thanking the claimant for lunch in the message. The claimant also commented on messages regarding a [NAME] talking about having kissed a boy and also a message about a [NAME] having sex to which the claimant had written a reply stating “I can’t believe it” which she then noted on [NAME] and reported that message to a senior member of staff. [NAME] also raised messages with the claimant in which she commented on her personal life, including going out with someone who “smelt old” and “not liking” the girlfriend of a [NAME]. The claimant had also written personal messages to [NAME] such as “Can’t date a [NAME]” because she was divorced and “I’ll tell you a secret” in reference to an exam result and there were some exchanges of photograph, which is forbidden by the relevant code. The parents of the recipients are unlikely to have known about the messages. The claimant’s [NAME] representative made the point that the fact the claimant was not suspended immediately suggested the respondent did not have grounds for a finding of gross misconduct as the conduct could not have been so serious as the claimant was allowed to continue with her duties, although she had stepped down from her [NAME] role. Mr [NAME]: 3305730/2024

13 explained that suspension was a neutral act and the respondent had decided not to suspend until it had completed its investigation.

30. The claimant was suspended from her duties by letter dated 5 March 2024 (page 441) and the respondent made several attempts to contact the claimant to arrange a further hearing to discuss the outcome of the disciplinary process, however the claimant did not return any of the calls or messages left by the respondent.

31. The claimant was asked to attend a meeting on 14 March 2024, however the claimant did not attend. The respondent decided on 14 March 2024 that the letter detailing the outcome of the disciplinary hearing would be provided instead of meeting with the claimant as she was not engaging with ethe respondent’s process. Mr [APPELLANT] decision was to dismiss the claimant summarily on the grounds of gross misconduct, as set out in the letter at pages 501 to 509. The claimant was dismissed for overfamiliarity with [NAME], in some instances meeting with [NAME] who were no longer under her remit for direct [NAME] support and some who had left the [COMPANY]; decisions being made outside her remit; inconsistent adherence to safeguarding protocols set out in KCSIE and the code of conduct; inconsistent recording and sharing of information with colleagues or on [NAME]; and inconsistent safeguarding of [NAME]. Mr [APPELLANT] concluded that the claimant had acknowledged her behaviour was inappropriate and that the occurrences and conversations had taken place as set out in appendix 1 to the letter of dismissal (pages 508- 509).

32. The claimant appealed against her dismissal as set out at page 448. The claimant appealed on the grounds that she did not believe Mr [NAME] was aware of her history and track record, that insufficient regard was given to her honesty or self reflection, that full consideration was not given to the complimentary emails submitted in her favour, that full consideration was not given to the supportive letters from parents, that full consideration was not given to the fact that she had continued working since September 2023 without been suspended, that the situation was aggravated by the respondent undertaking a second investigation and no regard had been taken in respect of the impact on her mental health. The claimant did not say in her letter of appeal that she had not been given the opportunity to respond to the complaints raised by Ms [NAME] and Mrs [NAME], nor did she say that she had not written any of the messages considered at the disciplinary hearing or that she had not had the opportunity to make a proper response to the allegations before a decision had been made.

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14 33. The appeal was heard by the [NAME] who had not previously chaired any of the previous meetings with the claimant, although he knew about the allegations and had made the decision to remove the claimant from her [NAME] duties. The minutes from the appeal hearing are at pages 457 to 458. The claimant attended the appeal hearing on 5 April 2024 and had been advised of her right to be accompanied. The claimant stated at the appeal hearing that she did not want to go through the allegations again as they had already previously been discussed and she stated in cross examination in this Tribunal hearing that she did not want to speak about any of the matters during the appeal because she was very stressed and felt that she could not speak about it, although the claimant did not inform the respondent of this at the time of the appeal. The respondent did not uphold the claimant’s appeal and notified the claimant of the outcome in a letter dated 16 April 2024 (page 462 464).

34. The claimant has undertaken some tutoring work since the dismissal but has not obtained another job and has not produced any evidence at this hearing that she has made any efforts to find or apply for another job elsewhere.

35. In support of the written submissions relied upon by the respondent, it was submitted that the [NAME] was faced with an employee who had admitted being overfamiliar with students and writing an unacceptable number of messages to students outside what was required by the job. The claimant was asked at the appeal to provide any further comments on the specific allegations, but she refused to do so, and the respondent took into account all the supporting letters written by parents submitted by the claimant. In those circumstances, the respondent submits that it had a reasonable belief in the claimant’s guilt after carrying out a reasonable investigation and that dismissal fell within the range of reasonable responses open to it in those circumstances. The respondent submits that the Tribunal cannot substitute its own opinion for that of the respondent in respect of whether a lesser sanction should have been applied.

36. The claimant submitted that the real reason for the dismissal was that the respondent was making a number of redundancies and that her dismissal was contrived in order to avoid paying a redundancy payment. The claimant submits that there were a number of failings by the respondent which rendered the dismissal unfair including not providing the LADO report to the decision-maker or the claimant, Mr [APPELLANT] not knowing about the [APPELLANT] test, not putting specific allegations to the claimant at the disciplinary or appeal hearings, not obtaining witness statements with a statement of truth, dates and signatures during the internal process, redacting the names of witnesses in the internal process, rolling up all of the allegations when coming

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15 to the conclusion that this amounted to gross misconduct rather than dealing with them individually and appointing the [NAME] as the [NAME] officer when he had prior knowledge of the allegations. The claimant submitted that, if a fair process had been applied, the claimant would not have been dismissed and would have been given a final written warning with some training. The Law

37. Section 98(4) of the Employment Rights Act 1996 provides as follows:

98 General

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for [NAME] the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

38. The test to be applied by this Tribunal in a conduct dismissal case is that set out in the case of [NAME] v [NAME][ 1978] IRLR 379 and that test is set out in paragraph 1.4 of the List of Issues, above.

39. The respondent has referred the Tribunal to the recent case of [NAME] v [COMPANY] [2026] particularly paragraphs 44, 45 and 48 of that Judgment. The Employment Appeal Tribunal held that the Tribunal should take an overview of the entire internal investigation and disciplinary process and there is no requirement for an employer to conduct the process with the full rigour required in civil court proceedings. What is required is substantive industrial fairness that takes account of the seriousness of the allegations and ensures that the allegations are investigated fairly looking both for material that may support or undermine the allegation.

40. The test for wrongful dismissal is the common law test of whether there was a breach of contract which was so serious that it entitled the respondent to end that contract and dismiss the employee.

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16 41. An employee’s negligent act can entitle an employer to dismiss without notice, even if not deliberate, dishonest or wilful provided that the act is sufficiently serious. This is a question of fact in each case to be judged by the Employment Tribunal.

42. In [NAME] and anor v [COMPANY] [2010] IRLR 709 the Court of Appeal stated that an employee’s position or level of seniority may inform the question of whether his actions or failure is repudiatory or not.

43. In [COMPANY] v [NAME] 0212/19 the Employment Appeal Tribunal held that an employee’s length of service has no bearing on the gravity and seriousness of an employee’s negligence. Discussion and Conclusions

44. Applying the relevant law to the facts, dealing with the wrongful dismissal claim first, I find that the claimant was entitled to receive notice of her dismissal in ordinary circumstances under the provisions of her contract of employment with the respondent. However, I find that there were circumstances in this case where the claimant had admitted to conducting herself in a manner which the respondent regarded as unprofessional and inappropriate in the setting of a [COMPANY] where the claimant had specific [NAME] duties for the children she was responsible for. The claimant admitted that she had got carried away with sending messages to [NAME] and [NAME] [NAME] using Teams, that she had gone wrong and overstepped the line, that she had felt embarrassed about letting herself down and had overstepped the boundaries with the children for whom she had a [NAME] role. The code of conduct places the welfare of the children as paramount and that is also recognised by the statutory framework that all [NAME] must adhere to. Whilst this Tribunal cannot make any findings on whether the claimant did not always raise matters correctly through [NAME] or was inconsistent in her reporting because that evidence was not presented in front of this Tribunal, I am satisfied that the evidence that I have seen is sufficient, alongside the claimant’s own admission of having been overfamiliar with [NAME], breached the contract of employment between the claimant and the respondent. Applying the guidance in [APPELLANT] I find that the claimant was in a position of seniority with a particular remit for [NAME] care and, on that basis, the breaches which have occurred, and which the claimant accepts, are sufficiently serious to amount to a repudiatory breach of contract and the claimant’s length of service is immaterial, applying the guidance in [NAME], in determining the seriousness of that breach of contract. The claimant sent an inordinate number of messages to [NAME] on evenings and weekends which were not related to [COMPANY] matters and many of those

Case Number: 3305730/2024

17 conversations will have taken place without the knowledge of the parents of the [NAME] involved. The fact that those messages did not raise any safeguarding issues is only one of the factors I have taken into account and I have looked at all the evidence presented in front of me in the round when deciding whether the claimant conduct was sufficiently serious to amount to a repudiatory breach of contract. I find that the respondent did not affirm the contract, although the investigation and disciplinary process took several months, it is clear that the respondent was not at any stage of that process affirming the contract and there were only 2 options open to the respondent when faced with a repudiatory breach of contract, either affirm the breach and carry on the contract or accept it and terminate. In this case I find that the respondent accepted the claimant’s repudiatory breach of contract and they were entitled to terminate that contract without giving notice or payment in lieu of notice. Therefore, I find that the claimant’s claim for wrongful dismissal is not well founded and it is dismissed.

45. In terms of the unfair dismissal claim, the parties agree that the claimant was dismissed and that her effective date of termination was 14 March 2024. I do not accept the claimant’s submission that the reason for the claimant’s dismissal was that of redundancy. There was no evidence presented in front of this Tribunal that redundancy was the principal reason for dismissal or that the investigation and disciplinary process were a sham and were designed by the respondent to deflect from or cover up the real reason for dismissal. Furthermore, [NAME] stated in closing submissions that the respondent is recruiting to the claimant’s post, which directly contradicts her assertion that the reason for the dismissal was redundancy. I find from the evidence which has been presented in front of this Tribunal that the reason for the claimant’s dismissal was that of the claimant’s conduct and it was the claimant’s conduct which was firmly in the mind of Mr [APPELLANT] at the time he made the decision to dismiss the claimant.

46. It is then for this Tribunal to go on and apply the statutory test for unfair dismissal as set out in section 98(4) of the Employment Rights Act 1996 and to assist with that exercise I am required to apply the test set out in [RESPONDENT] v [NAME].

47. I find that the respondent had reasonable grounds for its belief that the claimant was guilty of misconduct particularly given the claimant had accepted on several occasions that she had acted unprofessionally and been overfamiliar with the [NAME] in the volume of messages and the content of some of those messages coupled with the fact that many of the messages were sent outside [COMPANY] hours and that she had met some [NAME] students outside the bounds of what was required under the code of conduct. There is

Case Number: 3305730/2024

18 no evidence in front of me that Mr [NAME] did not have a reasonable belief at the time that he concluded the disciplinary process that the claimant was guilty of over familiarity with [NAME] including meeting with [NAME] who were no longer under the remit for direct [NAME] support and some of whom had left [COMPANY], making decisions outside of the claimant’s remit, failure to consistently record data safeguarding protocols set out in KCSIE and the staff code of conduct, failing to consistently record and share information with the relevant colleagues or on [NAME] and failing to consistently safeguard [NAME].

48. The claimant has sought to challenge the quality of the investigation carried out by the respondent, including the fact that Mrs [RESPONDENT] and Ms [NAME] did not produce witness statements with a statement of truth and the appropriate dates and signatures. I find that there is no requirement in an industrial setting for managers and HR professionals to produce witness statements to a standard which is required in a Court of Law. To impose such a requirement would be entirely unreasonable and unworkable in practice as the vast majority of businesses and organisations employing people would not have the means to understand and carry out such requirements. What is required is an investigation which falls within the range of reasonable investigations open to an employer and that is applying the guidance given in the case of [NAME] [COMPANY] v Hitt [2002] EWCA Civ 1588. That does not mean an employer is required to carry out the best investigation, disciplinary and appeal process possible and it does not mean looking at that process in hindsight and picking minute fault with it in this forum. What it means is that an employer is required to carry out an internal process which falls within a range of reasonable processes that might be open to an employer in those circumstances at that time where another employer or indeed another manager might have taken a slightly different approach, but that in itself does not make the process or the dismissal unfair. Applying that test, I find that at the time Mr [RESPONDENT] formed his reasonable belief, the respondent had carried out a reasonable investigation and the claimant had been provided with several opportunities to address the allegations which had been raised with her. The claimant was provided with copies of all of the relevant documents and she had representation and could obtain advice from her [NAME] representative throughout the entire process. The claimant has sought during these proceedings to re-argue the matters investigated by the respondent but that is not the correct process and the Employment Tribunal does not have jurisdiction to do this as it would amount to a substitution mindset which would be an error of law. This Tribunal cannot reinvestigate or rehear disciplinary processes and the claimant’s approach of trying to pick fault with the respondent’s processes after the fact and after many months of poring over the documents does not reflect the correct approach for this Tribunal to take. I must look at matters as they stood at the

Case Number: 3305730/2024

19 time the respondent undertook its investigation and I am satisfied that the respondent had carried out a reasonable investigation at the relevant time.

49. The claimant has sought to argue that the respondent’s process was unfair because they did not take into account the LADO report and because the appeal was chaired by the head of the [COMPANY] who had previous knowledge about the allegations and the claimant suspension. I find that the respondent acted correctly in not taking into account the LADO report because that report does not have any bearing on the contractual employment relationship between the claimant and the respondent. It is an external report specifically dealing with issues of safeguarding and does not extend to investigating any potential breach of contract. The reason why the LADO report recommended the respondent to apply its own disciplinary process is because the local authority recognises that it has no standing to make any judgement or give any input into a contractual relationship which is governed by the principles of privity of contract. The LADO report dealt with issues of safeguarding which is an external statutory matter. The respondent was dealing with whether the claimant had breached the code of conduct and the requirement of her own contract of employment with the respondent which is an entirely separate matter and does not require there to be a breach of safeguarding in order for it to amount to a breach of the code or a breach of contract.

50. I do not accept the claimant’s submissions that the appeal officer was not independent because he clearly had not chaired any of the previous hearings or meetings. There is no requirement in an employment setting for the respondent to find an appeal officer who is completely ignorant of all matters that have previously taken place. The only requirement is that they must not have been a decision-maker which the [NAME] was not and the respondent’s actions were in line with the guidance of ACAS in respect of who should conduct such hearings. It is perfectly natural for the [NAME] to know about events taking place within his own [COMPANY] and that does not disqualify him from properly dealing with one aspect of the respondent’s internal disciplinary procedures.

51. The claimant has also raised the issue with Mr [APPELLANT] not asking specific questions about the allegations raised by Mrs [NAME] and Ms [NAME] during the disciplinary hearing. I accept that it may have been a better process for the [NAME] to have prepared set questions in advance, however there is no requirement for an employer to do so. In some cases it may be that the failure to put specific questions about allegations to an employee during a disciplinary hearing may lead to a finding of unfairness in respect of the process, however I do not make that finding here because the claimant was represented by her [NAME] and that representative did raise issues

Case Number: 3305730/2024

20 specifically about the allegations made by Mrs [APPELLANT] and Ms [APPELLANT], the claimant was given several opportunities to raise any matters herself through her union representative at the disciplinary hearing but they both failed to raise anything particular in respect of those allegations and neither of them said the allegations were untrue. Further, guidance given by the Court of Appeal in the case of [NAME] v [COMPANY] [COMPANY] [2006] EWCA Civ 702 tells us that any procedural failings early on in the proceedings can be remedied on appeal and I am satisfied that the claimant could have raised her concerns about the allegations made by Mrs [NAME] and Ms [NAME] in her letter of appeal or at the appeal hearing, but she failed to do so. In all of those circumstances I find that the respondent acted in a procedurally fair manner and that the process adopted by this respondent, although it could have been better, was not insufficient to render the decision to dismiss unfair.

52. No evidence has been presented in front of this Tribunal that the decision to dismiss in circumstances where a senior member of staff with [NAME] responsibilities who has admitted to acting outside of the requirement of the code of conduct and those [NAME] responsibilities is outside the reasonable responses of an employer in those circumstances. Whilst a different employer or a different manager might have taken a different decision to take action short of dismissal, that does not mean that Mr [NAME] decision to dismiss fell outside the range of reasonable responses. It would be an error of law for this Tribunal to substitute its own opinion for that of the respondent and it does not matter what I think of the decision to dismiss. What I am required to do is to examine Mr [NAME] decision to dismiss and the appeal officer’s decision not to uphold the appeal. In carrying out that exercise, I find that in the circumstances of the case, i.e. a senior employee with [NAME] responsibilities and her inappropriate interactions with [NAME] without the knowledge of their parents, coupled with a failure to consistently report matters using the respondent’s procedures, could have resulted in dismissal and that decision did not fall outside the range of reasonable responses, even taking into account the claimant’s length of service and positive character references.

53. In all of those circumstances and looking at the case in the round I find that the respondent acted reasonably in treating the claimant’s conduct as a sufficient reason for dismissal in light of the particular industry (i.e. a [COMPANY]) and the substantial merits of the case. Therefore, I find that the claimant’s claim for unfair dismissal is not well founded and it is dismissed.

54. For completeness, had I found that there was some procedural irregularity which had led to the dismissal being unfair, I would then find that, had the employer adopted and applied a fair investigation, dismissal and appeal

Case Number: 3305730/2024

21 procedure, the chances that the claimant would have been dismissed under that procedure are 100% applying the guidance given Court of Appeal decision of Polkey v [COMPANY]. There is no evidence in front of me that telling the claimant in November 2023 that the outcome of the disciplinary hearing may have been dismissal, that the documents at 410 to 414 being provided without the names of the colleagues been redacted, that the allegations raised by Mrs [APPELLANT] and Ms [APPELLANT] being put to the claimant in specific questioning or that the appeal hearing being chaired by somebody other than the head, would have led to a different outcome. When asked by the Tribunal, the claimant said that, had she been told that dismissal might be a possible outcome in November 2023, the only difference that would have made was that she would not have agreed to go on a [COMPANY] trip at that time. The claimant did not say, when questioned, that it would have led to her not been dismissed or that the disciplinary investigation might have been dealt with differently. Further, there is no evidence that any of the other matters would have led to the claimant not being dismissed.

55. Had I found that the dismissal was unfair for any reason, I would then have found that the claimant had contributed to her own dismissal through blameworthy or culpable conduct which she admitted, applying the guidance in [APPELLANT] v BBC (number 2) [1980] ICR 110. The claimant herself accepted that her conduct fell short of what was required under the terms of her contract of employment and the code of conduct and that she had got carried away with engaging in written communications with students and ex-students. Given the claimant’s [NAME] position and her length of service, the claimant should have known better and should not have needed to wait for the respondent to tell her that her conduct fell short of what was required of her in her particular position in the [COMPANY]. In those circumstances, I am satisfied that conduct which the claimant has admitted to is sufficient to amount to blameworthy or culpable conduct and that any compensation that would have been awarded should be reduced to reflect that contribution. In those circumstances I would have reduced the claimant’s compensation by 75% to reflect the claimant’s culpability.

56. For completeness, had I found that the claimant was unfairly dismissed, I would then have found the claimant has not made sufficient efforts to find alternative employment and there is no evidence in front of this Tribunal that the claimant has made any job applications to replace the income that she has lost and I would find that the claimant has failed to mitigate her losses which would require this Tribunal to reduce her compensation to reflect this failure, although further evidence would be required about how long it would have taken for the claimant to find alternative work.

Case Number: 3305730/2024

22 57. For all the reasons given above, the claimant’s claims are all dismissed.

Approved by: Employment Judge Arullendran 11 May 2026 Judgment sent to the parties on: 13 May 2026 For the Tribunal:

Notes Judgments (apart from judgments under rule 51) and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the [NAME] on the Recording and Transcription of Hearings and accompanying Guidance, which can be found at www.judiciary.uk/guidance-and-resources/employment- rules-and-legislation-practice-directions/

Case Number: 3305730/2024

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted] Respondent: [redacted] Watford Employment Tribunal On: 9 - 11 February 2026 Before: Employment Judge Arullendran

REPRESENTATION:

Claimant: [redacted] Respondent: [redacted]

JUDGMENT

The Judgment of the Employment Tribunal is as follows: 1. The claimant’s claim of wrongful dismissal is not well founded and is dismissed. 2. The claimant’s claim of unfair dismissal is not well founded and is dismissed. Approved by: Employment Judge Arullendran 11 February 2026

Judgment sent to the parties on: 17 April 2026 For the Tribunal:

Case Number: 3305730/2024

2 Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the [NAME]. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the [NAME] on the Recording and Transcription of Hearings and accompanying Guidance, which can be found at www.judiciary.uk/guidance-and-resources/employment- rules-and-legislation-practice-directions/