A head teacher who was unfairly dismissed after tapping her own child’s hand with her fingers has been awarded £102,300 by the employment tribunal.
Ms Malabver-Goulbourne was a head teacher at a primary school in Hackney, east London, for the Arbor Academy Trust having been appointed to that role in 2017, and having worked for the trust since 2005. She will receive damages from the Trust.
The accusation of gross misconduct came about on 20 January 2022 when she had been seen trying to stop her three-year-old son, who was in the head teacher’s office waiting to return home with her, from playing with a bottle of hand sanitiser.
The judge, Julia Jones, wrote in her decision in March 2024: “The claimant took the sanitiser out of his hand. I find it likely that she then bent down to his level to speak to him about why he should not be playing with hand sanitiser. When she did so he turned his face away from her and she tapped him with two fingers on the back of his hand to get his attention, so that he would look at her to hear what she was saying.”
A colleague, Ms Bhagwandas, who was in charge of child safety at the school (the DSL, or designated safeguarding lead), had been waiting to talk with the head teacher. She witnessed the incident and told Malabver-Goulbourne she shouldn’t have “hurt” her son who she said was crying. She added that she had pacified the toddler.
The head teacher and Bhagwandas spoke about the incident during which they disagreed over whether the son had been hurt by the finger tap.
Two days later Bhagwandas filed an official complaint that resulted in the head teacher being suspended and a police investigation.
The complaint went to Liezel Le Roux, local authority designated officer (Lado) for the London Borough of Hackney who felt it met the criteria for further investigation, because: it was an allegation about behaviour that may have harmed a child; it concerned an individual in a senior position in the school; and it happened in front of the DSL.
The next step in the investigation was an “allegations against staff and volunteer meeting” (ASV) to be held which was attended by the Trust’s CEO, Ms Okoye, and an HR representative from Waltham Forest council who recommended the head teacher should be suspended while the investigation took place. This was stated to be a “neutral act” and took place on 20 January 2022.
The police, after speaking to all involved, decided the case did not merit further investigation, that the incident constituted “reasonable chastisement”, and there was no need for action.
However, Le Roux considered that the head teacher had used physical chastisement.
On 4 February, in a letter continuing Malabver-Goulbourne’s suspension, the Trust’s CEO told her that the allegation was that she had behaved in a way that had harmed a child or may have harmed a child.
During further investigation, Malabver-Goulbourne explained the finger tap was to get the child’s attention and was in no way intended to hurt him.
Nick Pratt, a qualified child protection social worker who conducted the investigation into the incident on 17 January 2021, concluded that there was a case for Malabver-Goulbourne to answer.
At a disciplinary hearing on 27 April 2022 the panel members, including a senior HR officer from the council and school governors, decided to dismiss the head teacher because “we felt that we had lost trust and confidence in her”. At least one governor felt she had assaulted her son, according to the tribunal report, and that it didn’t matter whether it was the head teacher’s own son and whether it was a finger tap or a smack.
The disciplinary panel found it worrying to consider how Malabver-Goulbourne would respond if she witnessed a parent doing the same thing.
The head teacher appealed in May 2022. The appeal panel agreed with the earlier decision, adding that she had chosen to use her own parental approach to handling the incident with her son, knowing that it was in breach of safeguarding policies. This made it appropriate to dismiss her.
At the tribunal, however, Judge Jones ruled that Malabver-Goulbourne’s dismissal was outside of the band of reasonable responses to her actions on 17 January. It felt the Trust had placed a lot of reliance on the evidence of Ms Bhagwandas, which they also discounted in certain instances.
The judge ruled that the Trust had “sufficient evidence” to form the view that the head teacher had simply been “trying to prevent injury to her child and addressing his behaviour. There was no evidence that she had committed physical chastisement or an assault.”
In a remedy judgment published this week, the employment tribunal ordered Arbor Academy Trust to pay Malabver-Goulbourne £102,300 comprising £93,900 for financial loss (after grossing up) and an £8,500 basic award.
This article was first published on 8 March 2024 and updated on 2 July following publication of the remedy judgment. Additional reporting by Rob Moss.
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