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January 31, 2012

Tribunal Tales – Miss Rusty Saved by the Bell

Miss Rustamova (or Miss Rusty as she was known) was a teacher at a school in Yorkshire with a number of troubled youngsters. As part of her job, she was responsible for endeavouring to ensure these youngsters finished school either with some academic achievement or at least some personal development. Sometimes this entailed using unconventional methods of teaching. She was generally successful at this aspect of her job and her efforts were appreciated by the headmaster.

One way in which Miss Rusty sought to engage the youngsters was to get them to write a story. This story turned into a book which contained bad language and references to drug taking and criminal behaviour. It also mentioned staff members by name and others were readily recognisable. The headmaster had read the first few chapters and congratulated Miss Rusty on her achievement. He was also given a copy of the book when it was finished. At the same time, the book was accessible on the internet.

Several months later, the school’s attitude changed and Miss Rusty was asked to attend a disciplinary hearing to face allegations of failing to observe confidentiality, failing to take reasonable care of her pupils, and generally bringing the school and teaching profession into disrepute. These were found to be established and she was dismissed for gross misconduct. At the hearing of her claim for unfair dismissal, the Employment Tribunal (by a majority, the Employment Judge dissenting) dismissed her claim. The majority said that they did not differ from the school’s view as to the seriousness of Miss Rusty’s conduct, and that since her union representative at the disciplinary hearing had accepted that it was an open issue for the school to consider whether her conduct amounted to gross misconduct such that dismissal was merited, they could not say that dismissal was outside the band of reasonable responses either.

The Employment Appeal Tribunal (EAT) has now sent the case back for further consideration by the Tribunal. The EAT criticised the Tribunal for not analysing the separate allegations faced by Miss Rusty and the competing arguments. The Tribunal had simply agreed with the school’s view but not given any reasons for doing so. Further, the Tribunal had not given a proper analysis of why dismissal was within the band of reasonable responses.

In a strict legal sense, the appeal was successful on a technicality, in effect because the Tribunal had not given proper reasons for its decision. However, the case itself does raise several wider issues. Is it legitimate for an employer to change its mind over the seriousness of an employee’s conduct? In this case, the headmaster had gone from congratulating Miss Rusty on the initial chapters of the book to criticising her at the disciplinary hearing for her lack of judgment and failure to appreciate professional boundaries. In the context of the teaching profession, where does one draw the line between innovative and unconventional teaching methods and a breach of professional boundaries? And to what extent did the internet accessibility of the book (and presumably greater potential for disrepute) influence the school’s thinking? There have been a number of cases recently involving employers who have dismissed employees for comments or disclosures on social media outlets, and this case may be a further example of one in which the school will rely on potential disrepute spread through the internet to justify Miss Rusty’s dismissal. We await the Tribunal’s reasoned outcome with interest.

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