Caretaker dismissed after trip to McDonald's with pupils: did the school properly consider his neurodiversity?

In Mr K Lilly v Southend High School for Boys Academy Trust, the employment tribunal considered whether the employer had carried out a sufficiently thorough investigation to properly understand that position. 

Facts

Mr Lilly worked at the school as a cleaner/caretaker from 2007. Between 2009 and 2018, the school sent him several letters setting out expectations about professional boundaries with pupils, including instructions to avoid close interaction and to keep away from pupils during lunch and break times. 

Between 2022 and 2023, the school carried out a series of performance appraisals. In 2023, it wrote to Mr Lilly about spending time in the sixth form common room instead of carrying out his duties, reminded him to keep a professional distance from pupils, and set out clear expectations about cleaning standards.

In May 2025, the school issued Mr Lilly with a written warning about performance concerns, to remain live for one year, and placed him under formal monitoring for one month. The letter also:

• Referred to comments Mr Lilly was alleged to have made which suggested a relaxed approach to safeguarding
• Provided a link to the Keeping Children Safe in Education statutory guidance
• Included copies of earlier letters setting out expectations about behaviour
• Warned that if he failed to meet the required expectations, the school might take further action under its formal disciplinary procedure, and
• Noted that he was waiting for an ADHD assessment.

In September 2023, the school updated its ‘Child Protection Procedures Summary’ document which summarised key safeguarding policies, procedures, duties and requirements. The school read the document aloud during a staff meeting. Mr Lilly attended the first part of that meeting. 

The following day, during his lunchbreak, Mr Lilly accepted a lift from three 18-year-old sixth-form pupils to McDonalds. The school suspended him and carried out an investigation. Mr Lilly accepted that getting into the car was a “silly idea”. 

Following a disciplinary hearing, the school dismissed Mr Lilly with notice for serious misconduct, specifically for a “repeated failure to follow legitimate management instructions and to comply with school safeguarding policies and procedures”.

His appeal was unsuccessful, and he brought a claim for unfair dismissal. 

Employment Tribunal 

The tribunal found that the school had reasonable grounds to believe Mr Lilly was guilty of misconduct, particularly for failing to follow management instructions that had been repeatedly given about professional boundaries and appropriate behaviour with pupils.

The tribunal accepted that the school carried out an investigation and produced a written report. However, it criticised the school for failing to properly explore Mr Lilly's medical position, including by contacting his GP for updates on his ADHD assessment or seeking further advice from occupational health. The tribunal found that the school did not adequately consider whether his behaviour could have been impacted by these conditions. Given Mr Lilly's sixteen years' service and the safeguarding nature of the allegations, the school needed to carry out a particularly careful and thorough investigation. The tribunal concluded that the school acted unreasonably in dismissing him without fully considering his medical circumstances.

The tribunal then considered whether the decision to dismiss fell within the band of reasonable responses. It noted that the school treated the conduct as serious, rather than gross, misconduct. Although the school relied on previous incidents, it had not addressed them through a formal disciplinary process, and it had not clearly warned Mr Lilly that similar behaviour could lead to dismissal. The tribunal also found it unrealistic to expect Mr Lilly to fully understand the lengthy safeguarding summary, particularly as the school read it aloud at a staff meeting and used complex and subjective language. The tribunal also took account of the context of the incident, which was a one-off, unplanned event of short duration involving three adult pupils and which resulted in no complaints. 

Referring to the EAT case of Hastingsbury School v Clarke, the tribunal emphasised that medical evidence can be crucial where behaviour may have a medical or psychological cause that could be treated or supported. It found that the school relied on its own assumptions about what Mr Lilly should have understood and did not seek medical advice or explore whether support such as medication, therapy, training or education might have improved his understanding and behaviour. 

Taking into account Mr Lilly's length of service, the seriousness of the allegations and the mitigating factors, the tribunal found that the school's decision fell outside the band of reasonable responses. The tribunal therefore found that his dismissal was unfair. 

Key takeaways for schools and colleges

This case highlights the importance of a thorough investigation. The investigation stage is central to establishing the facts, speaking to relevant witnesses, and gathering the necessary evidence. The ACAS Code of Practice on disciplinary and grievance procedures sets out the key principles that you should follow during an investigation and any subsequent disciplinary process. If you unreasonably fail to follow the Code, a tribunal can increase any award by up to 25%.

While an investigation must generally be reasonable overall, the EAT's decision in A v B confirms that more serious allegations require a particularly careful and conscientious approach. Where, as in Mr Lilly's case, the allegations could seriously damage an employee's reputation and future employment prospects, the standard expected of you, as the employer, is correspondingly higher. 

The case underlines the importance of considering whether medical factors may be relevant to an employee's behaviour. Where there is a possibility that an underlying medical condition may have impacted an employee's behaviour, you should take steps to explore this. That may include obtaining appropriate medical information to understand whether there is a link and whether support, treatment or adjustments could address the issue going forward.

It is also a useful reminder to carefully consider how you communicate important information to staff. In this case, the school read a lengthy document aloud, which may not be an effective way for everyone to fully understand the detail. 

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