E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND)5 Case No: 4103114/2023 Held at Dundee on 4, 5, and March 2024 and by means of the Cloud Video Platform on March 2024 Employment Judge W A Meiklejohn Tribunal Member Ms D McDougall Tribunal Member Mr R Martin Mr Mark Dibnah v ’s wife Craigclowan School and Nursery — 2023

Mr Mark Dibnah was an experienced teacher employed by Craigclowan School and Nursery from 28 August 2008. The respondent dismissed him following an incident on 20 February 2023 in which allegations were made that he had grabbed a pupil by the arm, forcibly moved the pupil’s head, shouted, and behaved in a way said to be intimidating to other children. The claimant denied the more serious allegations, including hair pulling, but accepted that he had grabbed the pupil’s arm to gain attention.

The tribunal applied the Burchell approach to conduct dismissal. It found that Mrs Henderson genuinely believed the misconduct had occurred and that she had reasonable grounds for that belief, based on the accounts from pupils A, P and C and emails from the parents of pupils C and W. On that basis, the respondent had shown that the reason for dismissal related to conduct. The tribunal also found no evidence that the financial position of the school, the claimant’s trade union activity, or any issue relating to a Ukrainian family played any part in the decision.

The claim nevertheless succeeded because the tribunal held that the investigation and disciplinary process were not fair within section 98(4) ERA 1996. The respondent’s own disciplinary policy contemplated an investigation led by a member of management, but no investigation manager was appointed. Mrs Henderson also involved herself in the investigation and then chaired the disciplinary hearing, which the tribunal said fell short of the objective standards of a reasonable employer. It considered the respondent should have followed its own policy and the ACAS Code, and that different people should have conducted the investigation and the disciplinary hearing where practicable.

The tribunal accepted that the dismissal had serious consequences for the claimant, including the impact of the police, GTCS and Disclosure Scotland processes. It therefore concluded that the procedural defects were enough to tip the balance in favour of unfair dismissal. No compensation was decided at the liability hearing; the tribunal invited the parties to try to agree compensation, and said that if they could not, the case would be listed for a remedy hearing.