Mrs Marylyn Smith v The Governing Body of West Gate School and 1 other — 2019

Mrs Marylyn Smith was employed as a teaching assistant at West Gate School and was dismissed on 12 December 2017 after an incident on 27 January 2016 in which a vulnerable student nearly drowned during a hydrotherapy session. The tribunal found, from CCTV and the evidence before it, that she had one-to-one responsibility for student A, that she turned away from him for a considerable period, and that he slipped through his ring and remained under water for about ninety seconds before being rescued. It also recorded that the student suffered brain damage as a result of the incident.

On the employer issue, the tribunal found that West Gate School had converted to a foundation special school on 1 January 2013 and that, under section 36 of the Education Act 2002, the governing body was the claimant’s employer. The proceedings against Leicester City Council were therefore dismissed. The tribunal accepted that the claimant knew student A well, knew he was vulnerable and could not swim, and knew she had to stay close to him and keep watch at all times.

Applying section 98(4) ERA 1996 and the Burchell test, the tribunal held that the respondents genuinely believed the claimant was guilty of gross negligence amounting to gross misconduct, had reasonable grounds for that belief, and had carried out a reasonable investigation. It relied on the CCTV footage, an independent investigation, the disciplinary hearing, the appeal hearing, and the claimant’s own admissions, including her guilty plea in the Crown Court to a health and safety offence. The tribunal also found that the disciplinary and appeal panels had considered mitigation, the Crown Court judge’s remarks, and possible alternatives to dismissal.

The tribunal therefore held that the dismissal was fair and within the band of reasonable responses, and it rejected the claimant’s arguments that she had been a scapegoat or treated inconsistently. It also dismissed the wrongful dismissal claim, finding that the claimant’s gross negligence amounted to a fundamental breach of contract and that she was not entitled to notice pay. No monetary award was made.