Mrs S Smith v Cognita Schools Limited — 2022

Mrs S Smith was employed by Cognita Schools Limited as a teacher at St Clare's School. The tribunal found that the school had followed Welsh Government Covid guidance, had a risk assessment in place from 27 August 2020, and had carried out a personal risk assessment for the claimant on 2 September 2020. The claimant's son was clinically vulnerable and had been told to shield. On 4 December 2020 the claimant saw Pupil J remove his mask to have a drink, told him to leave the classroom, and then left him unsupervised for about 24 minutes before checking where he was. The tribunal found that Pupil J was a vulnerable 15-year-old with additional learning and behavioural needs and that the claimant knew this.

The automatic unfair dismissal claim under s100(1)(e) ERA 1996 failed. The tribunal accepted that the claimant had general concerns about Covid-19 but found that she did not honestly and reasonably believe that Pupil J's brief removal of his mask in a classroom where she was already socially distanced created a serious and imminent danger. It relied in part on the claimant's own evidence that her son had attended school without a mask and on the fact that the claimant had travelled to Kefalonia with her family, including her shielding son, during the period he should have been shielding. The tribunal held that those matters were inconsistent with the level of fear she later described. It also found that, even if such a belief had been held, it would not have been objectively reasonable in light of the school's risk controls and the Welsh Government guidance.

The ordinary unfair dismissal claim under s98 ERA 1996 also failed. The tribunal found that the reason for dismissal was conduct, namely the incident involving Pupil J, and that Rhian Ferriman and Nicola Lambros genuinely believed the misconduct had occurred and treated it as a safeguarding issue. It held that Rachel Smart carried out a reasonable investigation, even though she had some prior involvement and did not interview pupils, because the central facts were largely admitted after CCTV was reviewed. The tribunal found that dismissal was within the range of reasonable responses, taking into account the claimant's mitigation, the safeguarding and behaviour policies, the pupil's additional needs, and the claimant's failure to supervise the class when she went to look for him. The claims were therefore dismissed in full, with no award made.