Claimant v The Governors of St Mary Magdalene Church of England Primary School

The tribunal found that the respondent's actions (reporting to LADO, police referral, investigation, disciplinary process, and dismissal) were not motivated by race. The decision makers (Mrs Wainwright, Mrs Rowe, Dr Gregory) were white, but the claimant failed to establish that any treatment was because of race. The tribunal found reasonable justification for all actions taken and no evidence of race being a factor. A comparator (Teacher X, Asian British) received a first written warning for different conduct involving pushing a child, but the circumstances differed materially. Another comparator (Mr McMahon, white British) was not disciplined for restraining a child from throwing a chair, but the tribunal found his conduct was not inappropriate. The tribunal rejected the claim on the facts, finding no less favourable treatment because of race.

The claim relied on the same facts as the direct discrimination claim. The tribunal found that the respondent's conduct (reporting to LADO, police, investigation, disciplinary process, dismissal) did not have the purpose or effect of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment related to race. The respondent's actions were motivated by safeguarding concerns about the claimant's use of force towards a child with special educational needs, as evidenced by CCTV footage. The tribunal accepted the conduct was unwanted but found it did not relate to race.

The tribunal found the reason for dismissal was conduct (use of excessive force and unprofessional conduct). The respondent had reasonable grounds for that belief following a reasonable investigation by Mrs Wainwright. The tribunal found the investigation fell within the range of reasonable responses despite some flaws (failure to provide external CCTV, leading questions). The tribunal found dismissal was within the range of reasonable responses given: (1) CCTV showed three instances of inappropriate force; (2) claimant herself accepted conduct appeared excessive; (3) conduct met criteria for gross misconduct; (4) LADO and police/CPS identified conduct as passing safeguarding/criminal thresholds; (5) reasonable concern about repetition risk; (6) reputational concerns. The tribunal concluded the decision to dismiss and to uphold dismissal on appeal both fell within the range of reasonable responses, despite the claimant's 10 years unblemished service and genuine concern for the child's safety.

The tribunal applied the higher Bostik test (actual repudiatory breach on balance of probabilities, not reasonable belief). The tribunal found the claimant's conduct constituted gross negligence (not wilful misconduct) but was sufficiently serious to amount to repudiatory breach. The tribunal found three instances of inappropriate force: (1) grabbing backpack straps in office doorway; (2) hand on child's neck pushing him towards chair; (3) physical struggle to take phone. The tribunal found this conduct, though momentary and well-intentioned, involved loss of emotional control and use of force exceeding minimum required, in breach of the Restraint Policy and Code of Conduct. Given the essential element of the claimant's role required calm measured dealings with vulnerable children, the tribunal found the conduct went to the heart of the contract and justified summary dismissal, despite the claimant's junior level and limited training.