A clear rule breach does not end the risk analysis. It starts it.

That is the message from Lilly v Southend High School for Boys Academy Trust.

Even where conduct is plainly inappropriate, dismissal can still be unfair if the employer has not tested why it happened, what the employee understood, and whether dismissal is proportionate.

What happened?

Mr Lilly worked as a cleaner and caretaker from Tuesday 1st May 2007.

The school had repeatedly raised concerns about his interactions with pupils and had told him to keep contact with pupils to a minimum. In May 2023, it reminded him of previous instructions and referred to safeguarding expectations.

On Tuesday 5th September 2023, during his lunch break, he accepted a lift from three 18-year-old sixth-form pupils to McDonald’s, ate lunch there, and accepted a lift back.

He accepted afterwards that this was stupid and risky.

The school suspended him on Monday 25th September 2023. After an investigation and disciplinary hearing, it dismissed him with notice by letter dated Friday 20th October 2023.

His employment ended on Wednesday 10th January 2024.

The school knew he had cognitive or neurodevelopmental difficulties, including an awaited ADHD assessment and a previous Asperger’s assessment.

What did the Tribunal decide?

The Tribunal found that the school had a genuine belief in misconduct and reasonable grounds for that belief.

It also accepted that what Mr Lilly did was misconduct relating to safeguarding. But the dismissal was still unfair.

The Tribunal held that dismissal fell outside the range of reasonable responses.

Remedy is yet to be decided, so the cost is still to come.

Why did it reach that decision?

The problem was not that the employer cared too much about safeguarding. It was that it did not investigate enough before deciding that dismissal was the right answer.

The school knew Lilly’s conduct was linked to his cognitive needs, and several witnesses admitted as much. Yet it decided it understood those needs well enough on its own.

So, it dismissed without contacting his GP or asking occupational health for a view. The judge found that unreasonable. Where misconduct may have a medical or neurodevelopmental cause, an employer cannot treat health as separate from conduct. It must investigate the cause before reaching for dismissal. That evidence might have explained the behaviour, shown it was treatable, and changed the sanction.

It also mattered that the conduct was serious misconduct, not gross misconduct, that he had long service, that previous concerns had not been handled as disciplinary warnings, and that some instructions were old, contextual and not as clear as the employer believed.

The incident was a one-off, no one was at risk, and Lilly had 16 years’ service. A change in any of those facts could shift the outcome.

The principle is practical. In misconduct cases, mitigation is not a box to tick. Where health, cognition or communication may explain behaviour, leaders need evidence before deciding any sanction.

What should you do now?

• Ensure managers distinguish misconduct, capability and health-related conduct before dismissal.
• Do not rely on old ‘informal’ warnings as if they were formal disciplinary history.
• Make key instructions simple, current and documented.
• Use occupational health or medical evidence where behaviour may link to disability, cognition or mental health.
• Record why dismissal is proportionate, not just why the conduct was wrong.
• Match the label to the process. If you call something serious rather than gross misconduct, follow the staged route and issue proper warnings.
• Weigh service and impact. Long service and a clean record raise the bar for dismissal.
• Record your reasoning. Show that you weighed cause, alternatives and proportionality, not just the act.

Source:Mr_K_Lilly_v_Southend_High_School_for_Boys_Academy_Trust_-_3200299_2024_-_Judgment.pdf