The claimant was a supervising social worker in the respondent’s fostering team.   She was dismissed following a matter in which she had given gifts to a child she was responsible for.  As part of the Safe Working Practice Guidance the claimant, and other professionals, were reminded of ensuring that there were appropriate boundaries kept.   The Code of Conduct expressly stated about gifts stating that it should be part of an agreed policy for supporting positive behaviour and that it may have to be discussed with a senior manager, parent or carer.   The issue came to light when there was a new line manager and he had become aware of boundaries crossing with one particular child.  When the claimant’s relationship came to an end with the child in question – the line manager learned of the gift giving when he read the case note.  This led to the claimant being put on leave.

The Local Authority Designated Officer was consulted but they stated that it was not a matter for them on the basis that the child had not been harmed.  They did state that it would require a full investigation though.  This subsequently occurred.  In the investigation it went through the reports that had been written by the claimant in relation to the particular child.  It was found that the report, when seemed to be in draft form, was ‘fundamentally inappropriate’ as it examined the author’s feelings and emotions as well as making inappropriate comments about the practice of foster carers.  The claimant was subsequently dismissed as a result.

At first instance, the Tribunal found that the claimant was not unfairly dismissed. The claimant had also brought a claim relating to disability discrimination arising from her diagnosis with Autism Spectrum Disorder and Dyslexia.    The claimant appealed this stating that the respondent could not have reasonably formed the view that she had breached professional boundaries.  The EAT dismissed that stating that the claimant knew that she required authority for giving gifts and that she was in breach of a serious matter for which she could be dismissed.  The claimant sought to rely upon evidence from other workers citing that gift-giving was common and that others had given gifts without any disciplinary action taking place.  The EAT stated that it did not mean that the Tribunal had to conclude that her dismissal was then unfair.    Additionally, the Tribunal and EAT both found that dismissal was not disproportionate bearing in mind the disabilities that the claimant did have.  The claimant suggested that her conduct was influenced by her autism but this was rejected by the dismissing officer.  At internal appeal, the claimant was invited to attend Occupational Health but she declined.  Declining this invitation was not taken as additional conduct but that the appeal officer did not have the Occupational Health report which she would have liked when coming to her own decision.

One interesting point is that the appeal officer found that the claimant had ‘masked’ her autism and that had potentially put vulnerable children at risk.   The Tribunal, at first instance, found that it amounted to harassment on the grounds of the claimant’s disability.   The respondent appealed that also at the EAT but that appeal was dismissed.  The EAT agreed that such a statement would violate the dignity of the claimant.

Practical Lessons:

This case demonstrates a range of interesting points about practice and procedure relating to disability discrimination, harassment and unfair dismissal.  In terms of unfair dismissal, it is interesting how the Tribunal found that a decision was not unfair merely because it had been shown that the conduct had been carried out by others before.  Instead, the focus was on the policies in place and the claimant’s failure to adhere to them.  Another interesting point is the statement of ‘masking’ autism and the potential effect that it could have.  This was regarded as harassment as it would have the effect of violating the claimant’s dignity in relation to the protected characteristic of her disability.  This could be taken into account when having employees with ASD.
https://www.gov.uk/employment-appeal-tribunal-decisions/ms-m-morgan-v-buckinghamshire-council-2022-eat-160