How should colleges investigate allegations of sexual assault against its staff?

This is one of the most challenging issues for schools and colleges. Some lessons can be learned from the case of Hawker v Devonport High School for Girls.

Facts

A former teacher at a girls’ grammar school was suspended due to safeguarding concerns that emerged in 2021. The school’s safeguarding lead conducted interviews with students who raised concerns about the behaviour of the teacher (Mr Hawker). These interviews included discussions about incidents involving physical contact. As a result of the interviews, Mr Hawker was suspended, but he was not provided with specific details regarding the allegations made against him.

Two older girls told the school that they had been speaking to a group of girls after a sports lesson who had boasted about getting the teacher fired “for fun”. They both identified one of the girls as H but the school decided not to investigate further because they believed H to be unreliable and she had left the school. They also said that due to Covid bubbles, the older girls and H would not have been in lessons together.  

The school referred the matter to LADO who contacted the police. The police decided to investigate two complaints and arrested Mr Hawker on suspicion of sexual assault against two girls. The Teachers Regulation Agency imposed an Interim Prohibition Order against Mr Hawker. 

The school decided to complete its own investigation without waiting for the outcome of the police investigation. For reasons that are not explained, it appointed someone who had no experience of investigating serious complaints and had not received any training. 

She interviewed the four girls who had made complaints. She started by asking them if they wished to change anything they had said in their previous statements. One said she didn’t want to get involved. The other three made some changes – including elaborating on what they said had happened and identifying other girls they said had also been assaulted by Mr Hawker. Their accounts were not consistent and there were conflicts between the evidence. Despite this, the investigator didn’t ask the girls why they had changed their statements or ask them to explain any inconsistences. She also declined to ask them about the about the alleged scheme to get Mr Hawker fired or interview the older girls who had disclosed this. 

Mr Hawker was not told the identity of the pupils making allegations against him, but rejected all allegations and maintained that the only physical contact he had with his pupils was to tap them on the shoulder to get their attention. He asked the investigator to talk to a colleague who had spent seven months in his classroom and would be able to attest to his teaching style. She rejected this on the basis that it wasn’t relevant. 

The report was badly written. It failed to set out facts or refer to documents attached to it (which were heavily redacted). Instead, it set out the investigator’s opinion that Mr Hawker had behaved inappropriately, and her recommendation that the school should take disciplinary action sagainst him. 

Mr Hawker was dismissed for gross misconduct and his appeal failed. Throughout the entire disciplinary process he was not told the identity of all of the girls who had accused him or which classes they were in.

Whilst this process was still ongoing, the police informed the school that it was not proceeding with the complaints because the evidence of the two older girls cast doubt on the allegations. The Teachers Regulation Agency then lifted its temporary prohibition order which meant that Mr Hawker was free to continue to teach.

Mr Hawker argued that he had been unfairly dismissed and brought proceedings against the school.

Decision of the tribunal

The tribunal was excoriating in its criticisms of the way in which the school had handled these serious, and potentially career ending allegations. It found that Mr Hawker had been unfairly dismissed and awarded him the maximum compensation available: 12 months’ salary and a basic award.

It found that the school hadn’t acted reasonably at any stage in the process. In terms of the investigation, employers are expected to look for evidence that support the allegations as well as evidence which refutes them. The school had failed miserably in this regard because the investigator:

• Refused to speak to potential witnesses, including other girls who had been identified as being involved either as witnesses or victims; and the colleague who had spent seven months in Mr Hawker’s classroom. 
• Didn’t consider the ways in which the girls could communicate with each other even if they were not in the same ‘bubbles’ at school such as via social media.
• Didn’t interview the two older girls who said that they had been told that the allegations had been made up. 
• Hadn’t probed the accounts of any of the girls’ who had made allegations against Mr Hawker, considered conflicts in their accounts or the reasons why they had changed their initial statements.
• Refused to find out whether any other girls were aware of any inappropriate activity and only speaking to those who had volunteered information. This was a particular problem because most pupils didn’t know that the school was carrying out an investigation and therefore wouldn’t have known that they could have provided evidence.

She had also: 

• Failed to provide verbatim statements from the pupils or including the questions they had been asked in breach of the school’s own policy which required transcripts to be prepared.
• Failed to explain in their report that the allegations made by pupil H hadn’t been investigated before her account was considered unreliable.
• Failed to identify the factual basis for concluding that Mr Hawker had inappropriately touched pupils. This was particularly significant because some allegations were that he had touched a pupil’s naked thigh, others that he had touched their leg.
• Failed to provide to Mr Hawker with information about the allegations and evidence against him.

None of these issues had been resolved during the disciplinary or appeal hearings and the tribunal found that ‘no reasonable employer would have reached the decision to dismiss for gross misconduct on the inadequate evidence it had obtained’. The school had ‘accepted the evidence of the younger pupils without challenge or exploration and discounted, ignored or avoided finding contrary evidence’.

Mr Hawker could not prove his innocence and it was incumbent on the school to explore ways to weigh up the evidence in a way that was fair to him. 

Lessons for schools and colleges

Unsubstantiated allegations of sexual abuse give rise to one of the most difficult issues of balance. The EAT in Z v A [2024] said that without additional evidence from the police or other authoritative body ‘the employer is always likely to be a cleft stick, unless it already has some reason of its own to suspect the employee, or some good reason to think that the allegations are out of character to an extent that diminishes their reliability. The duty of such an employer concerned with serving children is first and foremost to those children, but that does not remove its responsibility to its employees’.

And therein lies the difficulty. How do you safeguard children whilst ensuring that staff accused of sexual misconduct are treated fairly?

Clearly you have to tread carefully – particularly when taking evidence from children about what they say has happened to them. It may be correct (as this school did) to start with the assumption that they are telling the truth, but that doesn’t mean that you should ignore inconsistencies in their accounts, ask why they have altered what they initially said or ask challenging questions. You will, of course, need to put appropriate safeguards in place, such as allowing them to be accompanied by a parent or guardian etc and appointing an experienced investigator who isable to conduct these types of interviews.  

It’s also important to support the person accused of misconduct during the process. Whilst employers will be criticised if they adopt a ‘knee jerk’ approach to suspending an employee, the reality is that it will almost always necessary to suspend someone accused of sexual misconduct because of the perceived risks to other children. However, you should review the suspension in light of evidence that you gather and appoint someone who can support them and provide a point of contact at the school or college. 

It should go without saying that you must give the accused enough information to allow them to defend themselves. In this case, Mr Hawker didn’t know the actual names of all the girls who had accused him until he had issued proceedings in the tribunal. The report included heavily redacted witness statements and the same documents were used in the disciplinary and appeal hearing. The redactions meant it was impossible to work out which statements came from which student – and that’s inherently unfair. 

The other point to mention is that you are required to provide your staff with a safe working environment. It’s worth reflecting on what the tribunal said in this case: ‘if a playground plot can end a career and destroy a reputation, the school is not providing a safe working environment for its staff, in particular its male staff’. 

By Jo Moseley, employment law specialist at Irwin Mitchell.