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Headteacher unfairly sacked after ‘tapping’ her son’s hand

A headteacher accused of smacking her three-year-old pupil and son in her office after school was unfairly sacked after she “tapped” his hand, an employment judge has ruled.

Shelly-Ann Malabver-Goulbourne was head at Northwold Primary School in east London, part of Arbor Academy Trust, when the incident unfolded at about 6.20pm on January 17 2022.

Following an employment tribunal, a judge ruled in November she was unfairly dismissed and is entitled to compensation. Full details of the case were only published on Tuesday.

The trust has called it a “complex and relatively unique case that questions the balance between the rights of a parent, HR laws and the safeguarding rules”.

The tribunal heard that the headteacher’s son, who attended the school, was in her office, picked up hand sanitiser and “squirted some to the floor”.

She took it off him and explained he should not be playing with it, Judge Jones said.

‘Tap’ was reported as a ‘smack’

The boy “turned his face away from her and she tapped him with two fingers on the back of his hand to get his attention,” Jones added.

This was witnessed by Serrantha Bhagwandas, the school’s safeguarding lead, who later reported it as a “smack” to the trust’s CEO.

Police investigated but decided Malabver-Goulbourne’s actions amounted to “reasonable chastisement”.

The trust called in an external HR representative, who advised it would be “appropriate” to suspend her amid investigations, which it did before later dismissing her.

Child protection social worker Nick Pratt investigated for the trust to see if she “assaulted a pupil on school premises”.

He recommended the head had a disciplinary case to answer, suggesting she breached the trust’s ‘staff code of conduct for child protection policy’.

Parents have legal defence

In England, parents who smack their children can have a “reasonable punishment” legal defence if accused of assault. Then-education secretary Nadhim Zahawi rejected calls for a parental smacking ban in April 2022.

However, the trust’s code of conduct advises employers “not to make unnecessary physical contact with pupils”. Staff should also “immediately” report any incident if they feel their “actions have been…misconstrued”.

The Teachers’ Standards 2012 state teachers should safeguard children’s wellbeing, according to DfE statutory schools guidance cited during the tribunal.

Bhagwandas argued the head had breached behaviour and safeguarding policies.

But the head insisted her “actions were designed to get her son’s attention and not to hurt him” and that “as the parent, she does have sanctions available to her”.

She said she had acted to “explain the danger of playing with hand sanitiser”.

Trust sacked head over unnecessary’ contact

In May 2022, a disciplinary panel outlined the reason for sacking the head in a letter.

It found “the trust expressly forbids any physical chastisement or contact of any kind”.

“Therefore, whether a tap or otherwise, this was unnecessary physical contact with a pupil, which constitutes an assault, and therefore a breach of policies and statutory guidance”.

But Jones said the code of conduct “does not prohibit any physical contact whatsoever”, as it might be “necessary to protect the child, others or property from harm”.

It would also be “difficult” for her to abide by a ban on touching her own children, they said.

There was “no consideration” of whether the head’s actions could come within exemptions of trust policies, Jones added.

They ruled she is “entitled to a remedy for her unfair dismissal”, to be reduced by 20 per cent to “reflect her contribution to the situation”.

‘Take all the evidence into account’

A remedy hearing was due to take place in January, details have not yet been published.

Ryan Bradshaw, a solicitor at Leigh Day, said the payout is “likely to be less than £100,000 due to caps on compensation awards for unfair dismissal”.

Esther Maxwell, partner at Shakespeare Martineau, added the case “underlines how important it is for schools to ensure that those tasked with making disciplinary decisions take all the evidence into account when making those decisions.

“In particular, it is important that the entirety of the guidance in their policies as well as relevant statutory guidance is considered.”

A spokesperson for Arbor Academy Trust said its “priority always has to be the health and happiness of our children”.

“Safeguarding is our most important role, and that is why external reviews of this incident by educationalists recommended that this was a disciplinary matter,” they added.

“We acted on these recommendations with good faith and ensured that there was a fair and transparent process.”

But they respect the judge’s decision and the “school continues to make sound progress under its current leadership in raising standards”.

Malabver-Goulbourne has been approached for comment via her solicitor.

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