In The Eyes of the Law

Employers sometimes have to deal with some unusual matters. Where an employee’s activity outside the workplace affects his ability to carry out the role, the employer may have to take action to dismiss. It is even more difficult if the problem arises not with an employee’s own activity but that of a family member. In such cases, even where the allegations of improper behaviour by the third party are extremely serious, employers still have to ensure the disciplinary process is followed if they are contemplating dismissing the employee.

Tracy Hodgkinson had been a teaching assistant at Halifax Primary School for the ten years, until her dismissal in January 2012 for her son’s criminal actions.

The facts in the case were as follows. In November 2009, Mrs Hodgkinson told her employer that her son had been arrested in relation to a sexual relationship with an underage girl. Mrs Hodgkinson’s son, aged 19 at the relevant time, lived with his father from whom Mrs Hodgkinson was divorced. The girl in question was not, and had never been a student at the school. Mrs Hodgkinson asked for some time off and was told to remain at home until the school had decided on a strategy to respond to the situation.

In December 2009, the headteacher and a manager from the local council met with her to discuss the matter and how it could impact on her employment. Following on from the meeting, Mrs Hodgkinson wrote to the council, complaining that she felt that the meeting had turned into a disciplinary hearing. She complained that she had been accused of not raising a “cause for concern”; there had not been a cause for concern; and in the past she had always alerted the school if there had been any causes for concern. The school replied confirming that she should inform the school about any serious incidents with regard to her son, and the case in question. It also said that she should be aware that what she did outside of school could impact on her employment.

The son was eventually convicted of an offence of sexual activity with an underage female, and an offence of grooming and given a prison sentence.

Subsequently, the school held two further strategy meetings with Mrs Hodgkinson, which related to separate matters. The first, in July 2011, explored concerns relating to the previous October when the police had been contacted by the parents of a 15 year-old girl. Mrs Hodgkinson had received a visiting request for a friend’s 15-year-old daughter to visit her son at Norwich Prison and called her parents to seek their permission. When the girl’s mother refused, Mrs Hodgkinson said she had not informed the school because the visit hadn’t happened and as such hadn’t considered it a “serious matter”.

After her son’s release from prison to a bail hostel at Ipswich, Mrs Hodgkinson met him at a McDonald’s restaurant. At that meeting, her son had a friend from the hostel with him. The school raised concerns that Mrs Hodgkinson should not be associating with offenders.

The second meeting was in September 2011. During the meeting, the school explored its concerns that Mrs Hodgkinson had “persuaded” a woman with three children to write a letter to say that she knew of Mrs Hodgkinson’s son’s convictions, but she was happy for him to have contact with her children on a regular basis. The woman in question was a close friend of Mrs Hodgkinson whose children knew her son. This proposal had arisen during a normal conversation between them.

In November 2011, Mrs Hodgkinson was invited to attend a disciplinary hearing which resulted in her dismissal. Her appeal was unsuccessful and she claimed unfair dismissal.

Upholding the complaint, the tribunal found that the school’s reasoning that they could “no longer have trust and confidence in her” simply because her son had been convicted of a sex offence, was not based on reasonable grounds. The dismissal was unfair for a number of reasons.

• The school had not given instructions Mrs Hodgkinson to guide her that it would be inappropriate for her to arrange for her friend and her children to have contact with her son in compliance with the terms of the SOPO.
• The police visit in October 2010 took place before the meeting in August 2011, when she was told she needed to notify the school about any contact with the police or probation service.
• The disciplinary process was full of mistakes, misunderstandings and a lack of proper consideration.
• Although it was suggested by the employer, there was no evidence that during Mrs Hodgkinson’s employment that she had failed to spot or safeguard the interests of any child at the school, whether before or after her son’s arrest.
• Despite holding several meetings, Mrs Hodgkinson had not been given any formal disciplinary warnings, let alone a warning her job was at risk.

A decision to dismiss that’s purely based on the fact that the employee in question is related to somebody with a criminal conviction is likely to be unfair unless there’s some evidence that it impacts on the employee’s ability to carry out his duties; there is a risk that the association will bring the reputation of the employer into disrepute; or negatively impact on the safety of children or vulnerable adults (if appropriate).

Make sure that you investigate properly and follow a correct disciplinary process. If you’d like any help or guidance on the disciplinary process, or would like to organise some training, then please don’t hesitate to give us call.