Headteacher unfairly dismissed after ‘tapping’ her son’s hand (ET)

James Williams

An Employment Tribunal has ruled that a Headteacher who was dismissed after tapping her son’s hand was unfairly dismissed. 


The Claimant was the headteacher at one of the schools in the Arbor Academy Trust.  On 17 January 2022 the Claimant was working late in her office. And her two children who attended the School were in her office with her, waiting for her to take them home. The Claimant’s youngest child, who was 3 years old at the time, took up a bottle of hand sanitiser which was on a table and squirted some on the floor. The Claimant took the sanitiser out of his hand, 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.   

The incident was witnessed by the School’s Safeguarding Lead who completed a ‘cause for concern’ form to report a ‘safeguarding incident’. In it she reported that she had witnessed the Claimant smack her son on the hand. 

The Safeguarding Lead spoke to the LADO (Local Authority Designated Officer), on the telephone and then completed a referral form to refer the matter to her. The LADO received the form on 20 January. 

The Tru had a variety of policies that cover issues of safeguarding and the Claimant had extensive training in safeguarding. The Claimant signed to confirm that she had received the relevant training. 

In addition to the Safeguarding Policy the Trust had a Staff Code of Conduct for Child Protection which stated under the sub-heading – ‘contact with pupils’ as follows:- 

‘As a general principle, staff are advised not to make unnecessary physical contact with their pupils.  

It is unrealistic and unnecessary, however, to suggest staff should touch pupils only in emergencies, in particular, a distressed child, especially a younger child, may need reassurance involving physical comforting, as a caring parent would provide. Staff should not feel inhibited from providing this. 

Staff should never touch a child who has clearly indicated that he/she is, or would be, uncomfortable with such contact, unless it is necessary to protect the child, others or property from harm. Physical punishment is illegal, as is any form of physical response to misbehaviour, unless it is by way of necessary restraint. 

The Claimant was suspended on 20 January 2022. The Claimant was not given any details of the allegation that had caused her suspension. The letter confirming the suspension simply stated that she had been suspended so that allegations made against her could be investigated. 

Also on 20 January LADO made a referral to the child abuse investigation team (Police).  On 24 January 2022 the police indicated that they did not feel that this incident, as reported by the Safeguarding Lead would even meet the threshold for a criminal investigation but the Claimant was in a position of trust. The police officer commented in the meeting that this was a unique situation as it was a mother who was also in a position of trust at the school. She stated that because of those factors, this could be considered reasonable chastisement from a mother on one hand and action from someone in a position of trust in the school, on the other hand. She considered this to be a minor incident. 

At the end of a further review meeting on 4th February, the LADO considered that the Claimant’s use of tapping of the child’s hand as physical chastisement and behavioural management was cause for concern. She felt that what had been shared at the meeting meant that the allegation that the Claimant had behaved in a way that has harmed a child or may have harmed a child had been substantiated as there was sufficient evidence to prove the allegation that a child had been harmed or there was a risk of harm. She recommended that there should be an investigation to decide on disciplinary action and handed the matter over to the Respondent to conduct that investigation. 

Following an investigation by the Respondent a disciplinary hearing was held on 27 April 2022 and conducted by the chair of the local governing body and two experienced former Headteachers who were also governors. A Senior HR Adviser from the local authority was also present to provide support. The Claimant attended with her trade union representative. The invitation to the disciplinary hearing outlined one single allegation against the Claimant: ‘that she assaulted a pupil/child whilst in a position of trust and on school premises’. 

The panel’s decision was to dismiss the Claimant. This decision was based on the panel’s belief that ‘as headteacher, she may not deal with a similar situation in the appropriate way, consequently, we felt that we had lost trust and confidence in her and that this meant that we had no option but to dismiss’. The panel found that the Claimant had assaulted her son and that it did not matter what the context was or whether it was a smack or a tap. 

They concluded that what the Claimant had done was gross misconduct, which reflected on the whole school/Trust and therefore also presented reputational damage. It was the panel’s decision that the Claimant had failed to demonstrate her ability to follow safeguarding guidance as a role model within the Trust. As a result, it was their conclusion that the Claimant should be dismissed, with immediate effect.  The Claimant’s appeal against dismissal was unsuccessful. 


In this case, the Claimant complained of unfair dismissal. In determining the claim, the burden is on the Respondent to show the reason for the dismissal and that it is a potentially fair reason i.e., that it relates to the Claimant’s conduct or capability. A dismissal that falls within that category can be fair. In order to decide whether it is fair or unfair, the Tribunal needs to look at the processes employed by the respondent leading up to and including the decision to dismiss. In cases concerning the employee’s conduct, a three-stage test must be applied by the tribunal in assessing the respondent’s decision to dismiss an employee for alleged act/s of misconduct. This was most clearly stated in the case of British Homes Stores Ltd v Burchell [1980] ICR 303, as follows. The employer must show that:-  

(a) he believed the employee was guilty of misconduct;  

(b) he had in his mind reasonable grounds which could sustain that belief, and  

(c) at the stage at which he formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable in the circumstances.  

The means that the employer does not need to have conclusive direct proof of the employee’s misconduct but only a genuine and reasonable belief of it, which has been reasonably tested through an investigation. 


The allegation against the Claimant was that she had committed misconduct by assaulting a child, while in a position of trust. This was clearly set out in the letter of invitation to the disciplinary hearing. That was the allegation considered in the disciplinary process. The Claimant was not charged with failing to self-report the incident or breaching trust and confidence between her and the Respondent.  

The Respondent did not clarify what it considered to be an ‘assault’ in the correspondence with the Claimant or in the disciplinary hearing. Because of the reliance on the Code of Conduct and the Guidance for Safer Working practices in the disciplinary hearing and in the dismissal letter, it is likely that the Respondent considered that any physical contact which was in breach of those documents could be considered an assault.  

Did the Respondent have a belief that the Claimant had committed gross misconduct by reason of her actions in connections with the incident on 17 January? Was that belief gleaned from a reasonable investigation?  

From the evidence in the investigation report and in the statements made in the disciplinary hearing, it was reasonable for the Respondent to believe that on 17 January, the Claimant had tapped her child’s hand after she took a bottle of hand sanitiser away from him, which he had been playing with. It was the Respondent’s case in the hearing that the Code of Conduct prohibited any physical contact with pupils. It is this Tribunal’s judgment that the Code of Conduct did not prohibit any physical contact with pupils. The Guidance for Safer working practices also does not prohibit all physical contact between pupils and teachers. It provides examples where physical intervention could take place. It was not clear to the Tribunal why, given the Claimant’s explanation of why she tapped her son on the hand, the Respondent did not give any consideration as to whether any of those exceptions applied. 

There was no consideration as to whether the Claimant’s touch of her son by tapping him on the back of his hand, when he turned away from the Claimant when she was trying to talk to him about the dangers of hand sanitiser, could be considered to come within the exceptions to the Code of Conduct or the Guidance or safer working practices. The panel refused to look into this in coming to its conclusion that the Claimant had assaulted her son.  

The Tribunal decided that the Respondent did not have a reasonable belief that the Claimant had committed gross misconduct on 17 January. 

The Tribunal decided there was insufficient evidence from which the Respondent could conclude that the Claimant committed gross misconduct as outlined in the dismissal letter. There was no evidence that she had committed physical chastisement or an assault. The evidence that the Respondent had at the disciplinary hearing was that in tapping her child’s hand – she did not punish him for taking the hand sanitiser but did it to get his attention so she could explain to him why playing with the hand sanitiser was dangerous. This was because he turned away from her when she bent down to speak to him.  

If by ‘assault’ the Respondent meant physical chastisement, punishment or unwarranted physical contact, the Tribunal concluded that at the disciplinary hearing the Respondent did not have reasonable grounds for concluding that the Claimant had assaulted her child. The evidence at the disciplinary hearing was that the Claimant had tapped her son on the back of his hand with two fingers to get his attention as he was looking away from her, even though she had gone down to his level to speak to him. The Claimant wanted to explain to her son why playing with hand sanitiser was not something that he should do as it could get in his eyes and cause irritation, as happened previously, when he was playing with hand sanitiser at home.  

The Claimant’s dismissal was unfair. 

The remedy will be decided but is likely to be in the region of one year’s salary. 


Ms_S_Malabver-Goulbourne_-v-_Arbor_Academy_Trust_-_3205252_2022_-_Reasons.pdf (publishing.service.gov.uk) Ms_S_Malabver-Goulbourne_-v-_Arbor_Academy_Trust_-_3205252_2022_-_Judgment.pdf (publishing.service.gov.uk)

James Williams – Solicitor

James Williams

I am a qualified Employment Law and HR Solicitor. I specialise in acting for schools and advise on all aspects of employment law and HR including attending employee meetings, advising senior leaders, conducting redundancy consultations, drafting contracts of employment, advising on policies and procedures and negotiating settlement agreements.