Mr Francis, counsel For the v Respondent — 2022

Mrs Willmott was employed as a Level 1 Teaching Assistant by Pioneer Learning Trust at Whitefield Primary School and was summarily dismissed on 17 July 2020 after allegations that she had hugged and kissed a child on 23 January 2020. She admitted hugging the child but denied kissing him. The tribunal found that the initial 27 January 2020 meeting was unannounced and only a cursory enquiry, and that the respondent had already contemplated handling the matter by way of management advice if the hug was accepted.

The tribunal held that the respondent did not carry out the fair investigation needed before moving to dismissal. It found that, once management advice was being considered, the respondent should have investigated and fact-found the hug and kiss allegations properly, but instead delayed resolving the kissing allegation for an inordinately long time. It also found that the claimant’s concern that the kissing allegation may have been malicious or racially motivated was not effectively investigated. The tribunal accepted that the kissing allegation was ultimately unsupported and found that the respondent treated the matter as gross misconduct and a loss of trust and confidence without a reasonable belief formed after a reasonable investigation.

Applying s.98 ERA 1996 and the Burchell/Post Office v Foley approach, the tribunal found the dismissal unfair. It held that the claimant had contributed to her dismissal and reduced compensation by 50% under s.123(6). It awarded a basic award of £1,157, recorded past loss of £14,621.17, future loss of £1,445.46, and £225 for loss of statutory rights, and made a total award of £7,257.18. The award was subject to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996; the prescribed element was £7,310.56 and the amount to be recouped was £1,933.11. The tribunal declined a Polkey reduction and declined an ACAS uplift.