Gross misconduct, insubordination or breach of contract?

What was the situation?

A learning support assistant had requested 5 days leave to attend a family wedding during school term, but the request was refused by the headteacher in accordance with policy and due process. The learning support assistant made an appeal to the governor appeal committee who considered the request, the evidence, responses and facts. The appeal was not upheld and the final decision to refuse the request for leave was made.

The learning support assistant decided to attend the wedding without authority from the school/her employer and was absent from her post,without approval for 5 days. This had a detrimental impact on her colleagues and young people.

How did Strictly Education support the school?

The BIRCH-HR Consultant was on hand from the very beginning, assisting the headteacher in the interpretation and effective management of their leave of absence policy, ensuring consistency and fairness. The client had reminded all their staff at their induction and at the beginning of each school year about management arrangements for any specific leave of absence requests.

The BIRCH-HR consultant also offered the governor appeals committee advice during the appeal and continued to support the headteacher and manager with the disciplinary action that followed.

What was the outcome?

• The disciplinary action included a swift internal investigation meeting and subsequent disciplinary committee hearing with three independent governors.
• The committee considered the evidence, asked questions, established the facts and considered whether the allegations were sufficiently serious to be classified as gross misconduct or misconduct.
• They also considered the policy/process, operational impact on the school/colleagues, the specific circumstances of the case, statutory/contractual obligations and reasonable responses test. They noted that all teaching and support staff were fully aware of the process to take leave and this was consistency applied across the school.
• The governors unanimously decided to dismiss the employee, giving a right of appeal.

In summary

In making their decision the governors went beyond the current leave scheme during their deliberations by discussing granting employees leave of absence for personal / family matters.They believed that the request would have set a precedence and went way beyond the entitlements contained within the scheme. The employee was aware at the start of employment that there would be restrictions on when leave of absence would be approved.

As a result, it appeared a fair reason for dismissal as the allegations were sufficiently serious to be classified as gross misconduct. The employee requested leave, and this had been legitimately refused inline with leave of absence policy and due process, yet the individual took the time off, knowing the consequences, which could also amount to insubordination and/or breach of contract.

How did Strictly Education add value to, support and enable proceedings?

• The HR consultant was able to confidently advise the headteacher on the policy, the situation, risks and all available options.
• The HR consultant prepared all the necessary documentation for the process including the disciplinary paperwork for the governor’s hearing.
• The HR consultant prepared the headteacher, the manager, the learning support assistant themselves and briefed the trade union representative ahead of the hearing, ensuring they were aware that one outcome could be dismissal.
• Technical advice from an independent HR consultant (with no prior knowledge of the case) was available throughout the hearing, to assist the governor’s deliberations, manage risk and inform decision making.
• The HR consultant drafted the outcome letter for the Chair of the Committee to review, sign and issue to the employee.
• The HR consultant ensured that governors considered the general principals of fairness, representation, confidentiality, natural justice, school ethos, right to appeal, equal opportunities, adherence to the leave of absence policy and ensured a robust compliant process throughout the hearing procedure.
• The HR consultant was able to support the headteacher to embed effective leave of absence practice across their school, which also enables effective school improvement.