The difficulties of a 'duty of care'

2013 has now ended but not, I notice, before one particular claimant win in the Employment Tribunal and Employment Appeal Tribunal.

Schools are not easy businesses to run, involving as they do the precious commodity of our children, to whom those running a school rightly owe a high duty of care.  As a school governor myself, I fully appreciate this.  The balance between that duty and the rights of individual staff members is sometimes difficult, as was the case in A v Z 2013, involving a primary school’s decision to dismiss its caretaker based on police information about him of historical sex abuse, albeit committed outside his employment.  The school had been informed of the allegations by the police, who were investigating them, but at the time of the caretaker’s dismissal no criminal charges had been brought, and the police took no view as to his credibility.  The school governors decided to dismiss the caretaker on the basis that trust and confidence had irrevocably broken down between the parties.  The governors, perhaps not surprisingly, felt that the matter created a serious safeguarding issue and, even if the employee was completely exonerated, the existence of the allegations could seriously damage the confidence that parents and the public had in the school.

Unfortunately for the governors, the Tribunal and EAT did not accept that they had acted reasonably in dismissing the caretaker.  Employers in such situations, including governors at a school, are not entitled to take an uncritical view of unsubstantiated allegations disclosed to them, whether or not by the police and whether or not those are allegations of abuse relating to an employee (in this case working at a school).  The school should have carried out its own enquiries to test the information disclosed.  The school was also criticised for its dismissal procedure in not allowing the employee sufficient preparation time in relation to the matters particularly relevant to the school.  So, while the Tribunal recognised the difficulty of the balance to be struck in this case, and those like it, and that the school’s duty was first and foremost to the children in its care, it nonetheless confirmed that the school had got that balance wrong. 

Tim Ogle
01245 453840
​tim.ogle@birkettlong.co.uk

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