07 March 2024 , 15:26
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A primary school headteacher has won an unfair dismissal case after she was sacked for "assault", for tapping her toddler son's hand.
Shelly-Ann Malabver-Goulbourne was trying to get her three-year-old to stop playing with a bottle of hand sanitiser in her office when she used two fingers to attract his attention, an employment tribunal heard. The incident was witnessed by the teacher in charge of child safety who accused her of hurting her son and filed an official complaint, which led to the head being suspended and the police calling.
Despite the police ruling that her actions were "reasonable chastisement" by a parent, Ms Malabver-Goulbourne was found guilty of gross misconduct and sacked. She is now in line for compensation after an employment judge concluded there was no evidence that she had committed "physical chastisement or an assault" and ruled her dismissal unfair. Ms Malabver-Goulbourne was the head of Northwold Primary School in Hackney, east London which is run by the Arbor Academy Trust.
The hearing was told she had been a teacher for "many years", had joined the trust in 2005 and employed as head since 2017. The incident that led to her sacking took place on January 17, 2022, the tribunal heard, when Ms Malabver-Goulbourne was working late in her office.
The hearing was told: "It was around 6.20pm and [Ms Malabver-Goulbourne] was packing up her things to go home after having a meeting with Ms Bhagwandas, the designated lead for safeguarding. [Her] two children who attended the school were in her offices with her, waiting for her to take them home. [Her] youngest child, her son J, who was 3 years old at the time, was in the room, as was her 11-year-old daughter. J took up a bottle of hand sanitiser which was on a table. [Her] daughter told her that he had squirted some to the floor. [Ms Malabver-Goulbourne] took the sanitiser out of his hand."
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Employment Judge Julia Jones said: "I find it likely that she then bent down to his level to speak to him about why he should not be playing with hand sanitiser. When she did so he turned his face away from her and she tapped him with two fingers on the back of his hand to get his attention, so that he would look at her to hear what she was saying." Two weeks earlier the toddler had got hand sanitiser in his eye, the tribunal heard.
Ms Bhagwandas then told the head teacher that she should not have hurt her son and that she should have spoken to him instead. Ms Malabver-Goulbourne replied that she had not hurt her son, as all she had done was tap him with two fingers to get his attention.
However, Ms Bhagwandas was "unhappy" with her response and completed a "cause for concern" form to report a "safeguarding incident."
The tribunal heard: "In it, she reported that she had witnessed [Ms Malabver-Goulbourne] smack J on the hand. She also stated that before doing so, [she] had told J that she was going to smack him and expressed disregard for Ms Bhagwandas' presence in the office. Ms Bhagwandas reported that the child had been crying and that she had pacified him."
Her complaint led to Ms Malabver-Goulbourne being suspended, a disciplinary investigation launched and the local authority and police being called. The tribunal was told that neither the council nor the police - who interviewed all of the head teacher's children - thought further action necessary with officers concluding what she had done was "reasonable chastisement".
However, the trust continued its investigation into whether Ms Malabver-Goulbourne "assaulted a pupil/child whilst in a position of trust and on school premises". In May 2022, the trust sacked Ms Malabver-Goulbourne for gross misconduct.
"The Trust expressly forbids any physical chastisement or contact of any kind," she was told. "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." However, EJ Jones said that the school's code of conduct does not prohibit all physical contact between pupils and teachers and pointed out that as a parent of pupils that would be a difficult rule for the headteacher to abide by.
Upholding her claim for unfair dismissal, EJ Jones said: "It is this Tribunal's judgment that [the Trust] had sufficient evidence...that she was trying to prevent injury to her child and addressing his behaviour. There was no evidence that she had committed physical chastisement or an assault."