Teacher dismissed after threatening to 'whack' pupil: was the decision fair?

Is it okay for a teacher to joke about ‘whacking’ a pupil? That's what happened in Ms B Subrian v Gilbert Colvin Primary School, and resulted in the teacher being dismissed. The main question the tribunal had to decide was whether the dismissal fall within the range of reasonable responses open to the school. 

Facts

A pupil alleged that a teacher, Ms Subrian, had slapped him. She denied the allegation but admitted removing the pupil from class the following day to discuss the matter. The school accepted that she had not slapped him, but said that removing him from the class was a safeguarding issue and she received a written warning.

Seven months later, during a morning lesson, a pupil (SS) asked what would happen if the class did not hold their papers in place when writing. Ms Subrian responded that she would “whack” them and accompanied this with a hand gesture. Later that day, another pupil (KA) reported to a teacher that, during an afternoon lesson, he had been resting his head on his hand when Ms Subrian told him that if she saw him sitting like that again, she would “whack” him. 

Ms Subrian spoke to the acting headteacher and the assistant headteacher about what had happened. She said she was frustrated with herself for making the comment to KA and immediately realised it was inappropriate. She was suspended. 

An independent investigator interviewed Ms Subrian via Zoom. During the meeting, Ms Subrian referred to SS but was later informed that the child who had made the disclosure was KA. After reading the investigation report, Ms Subrian emailed the school stating there were two separate incidents - one in the morning and one in the afternoon. She said she would have denied the allegation and “changed her entire statement” had she known the meeting related to the second incident. Her trade union representative argued the wrong incident had been investigated, but the school responded that the investigation would not be reopened as Ms Subrian had already admitted making the comment and gesture to KA. 

At the disciplinary hearing, Ms Subrian said the comments were jokes. She demonstrated the gesture accompanying the comment, which the disciplinary chair (a school governor) perceived as implying a forceful slap. Following a thirty-minute adjournment, Ms Subrian was dismissed for gross misconduct. The outcome letter stated that, even if the comment was intended as a joke, KA (who has English as an additional language) could not reasonably understand this. It noted that KA felt threatened by Ms Subrian's actions and confirmed that the decision also took account of the existing live warning (which the chair incorrectly believed was for intentional physical contact with a pupil). 

Ms Subrian appealed, but the panel of three governors upheld the decision to dismiss her. She brought a claim for unfair dismissal. 

Employment Tribunal 

Ms Subrian accepted that she was guilty of some misconduct in making the comment and gesture and did not dispute that the school had a genuine and reasonable belief in this. However, she argued that dismissal was disproportionate and raised concerns about flaws in the investigation and procedure.

Investigation

The tribunal rejected Ms Subrian's criticisms of the investigation. While there was a minor discrepancy over whether the comment was directed at SS or KA, the fact remained that she admitted she had made the remark and used a hand gesture, and at least one child was sufficiently upset to report it. It also found no material unfairness in the late disclosure of KA's name, noting evidence that Ms Subrian likely knew from the outset that KA made the disclosure. As she admitted the conduct, no further investigation was required, and the school's approach was reasonable. 

Procedure

The tribunal noted that the school's disciplinary policy was poorly drafted regarding the composition of panels. It concluded that three governors should have chaired the hearing, not just one. It also expressed concern that the chair adjourned the disciplinary hearing for only 30 minutes and admitted this was because they had already done their “due diligence”. This suggested a preconceived view on the outcome before the hearing concluded. 

However, the tribunal concluded that the fair appeal process remedied the earlier flaws.

Sanction

The tribunal's key question was whether dismissal fell within the range of reasonable responses. It held that the comment was plainly inappropriate and the accompanying gesture made matters worse. Although the disciplinary chair had a preconceived view and wrongly believed the live warning related to physical contact, the tribunal found nothing that would have led to a different outcome. There was no real mitigation, and Ms Subrian admitted the conduct, which amounted to gross misconduct. Further warnings would not have been appropriate, so dismissal was justified.

Key takeaways for schools and colleges

Even though the appeal process in this case corrected earlier procedural flaws, it's best not to get into that position. Ensure you start with a fair and thorough investigation. In this case, confusion arose because the allegations were not clearly communicated, leading to uncertainty about which incident was being investigated. Always set out the allegations clearly so the employee knows exactly what they are accused of. 

Make sure your disciplinary policies are clear and you follow them, including who is authorised to chair hearings. They should be properly trained to conduct hearings impartially and take sufficient time to consider all evidence and submissions before reaching a decision. 

This is particularly important given upcoming changes under the Employment Rights Bill, which will reduce the qualifying period for ordinary unfair dismissal claims from two years to six months. While the government has dropped plans for a day-one right, this change will still significantly increase the numbers of employees who can bring an ordinary unfair dismissal claim. You can read more in our article, ‘Breaking: day one unfair dismissal rights binned but compensation limits going up'. 

We recommend that you start prepare now to ensure those handling disciplinary processes are equipped to make fair, well-reasoned decisions. 

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