IT teacher Werner Nel was found to have been wrongfully and unfairly dismissed by Marlston School in Berkshire
A private prep school teacher, who was fired for letting girls as young as six Google for pictures of ‘naked boys’ in class, has won a £33,000 payout for unfair dismissal.
IT teacher Werner Nel was found to have been wrongfully and unfairly dismissed by Marlston School in Berkshire, which claimed that he had lied about the severity of the images the girls saw and had tried to alter the Google search history.
Bosses at the £10,000-a-year fee-paying school didn’t tell the 37-year-old they had hired two separate IT experts to investigate after Mr Nel appealed his dismissal.
The tribunal in Reading found that the school was also in breach of the ACAS code of practice after it used the same member of staff, headmaster David Fleming, to both investigate the matter and carry out the disciplinary hearing.
The hearing ordered the school to pay Mr Nel more than £33,000 in compensation.
Mr Fleming originally told Mr Nel: ‘If I were to dismiss you it would likely be the end of your career – it would possibly not be possible to get another job in education.
‘Anyone can make a cock-up but I have to ask if I can trust you given the serious nature of the safeguarding breach. In most schools I believe you would be out of the door.
‘I think I understand the rationale of how your mind worked but you have been crassly stupid. However, I take into account that you have worked hard for the school doing good things and it is for that reason that I [am] minded to give you a final written warning.
‘This would remain on the file for the prescribed period set out in your contract – I would need to check this. You would of course have the right to appeal.’
However, after the re-arrangement of a further disciplinary hearing, Mr Nel, from Hungerford, was fired without notice from his job.
The dispute came after some little girls in a class of 11 pupils made Google searches for terms such as ‘The queen underwear’, ‘naked boys’ and ‘fat people’.
The written judgement released by the tribunal, which sat in Reading, today told how the teacher saw the girls giggling and looking at the images before grabbing the mouse to close the search window.
After a conversation with the head of IT, Mr Nel logged the incident via email. He was also instructed to print off the search history from the computer.
Bosses at the £10,000-a-year fee-paying school didn’t tell the 37-year-old they had hired two separate IT experts to investigate after Mr Nel appealed his dismissal
Before he did this, Stuart Raeburn-Ward, Pastoral and Designated Safeguarding Lead, looked at the browsing history of the computers used and saw the images.
However later that day when they were presented with the print-outs of the search results, the searches had changed to terms including’dogs’ and ‘queen birthday’.
Mr Nel was accused of trying to alter the search results and conceal the severity of the issue. However at appeal, two separate IT experts hired by the school were able to provide completely innocent reasons as to why the search results might have changed.
Mr Nel was not informed of this and his appeal at his dismissal, heard by non-executive director Gioncarlo Calderini, was unsuccessful.
Headmaster Mr Fleming did not believe that Mr Nel had not realised the severity of the pictures when he closed the tab. The report read: ‘Mr Fleming heard the claimant’s account and then ‘expressed incredulity’ about the claimant’s account that he had taken the mouse to click off the site and yet had not seen the images clearly.
‘After bringing up the images on the screen Mr Fleming expressed disbelief by saying ‘are you seriously trying to tell me that you did not see what was in front of you?’
‘Mr Fleming stated that he ‘simply did not believe him’. Mr Fleming decided to begin the disciplinary process against the claimant. Mr Fleming states that he considered the claimant was lying to him and that his lying was a safeguarding issue.’
The hearing ordered the school to pay Mr Nel more than £33,000 in compensation
The tribunal judgement read: ‘The tribunal does not consider that the respondent could have had an honestly held view of the claimant’s culpability in respect of altering the search history at the point that the claimant’s appeal was concluded.
‘[The IT] report provided an innocent explanation for what appeared to be the claimant’s deceitful act of altering the search history.
‘The tribunal was unable to understand how Mr Calderini could justify his conclusions that the claimant ‘altered the terminal history evidence’, in the light of the information that was available to him from the expert which had been obtained for the purposes of his appeal.
‘The respondent did not have a genuine belief in the claimant’s guilt at the appeal stage. The claimant’s guilt was substantially based on the conclusion that that the claimant had altered the search history and then lied about it.
The tribunal in Reading found that the school was also in breach of the ACAS code of practice after it used the same member of staff, headmaster David Fleming (pictured), to both investigate the matter and carry out the disciplinary hearing
‘The report received before the appeal outcome showed that there was another explanation. An innocent explanation which undermined the basis of the respondent’s conclusions against the claimant.
‘The view that Mr Fleming expressed at the meeting on May 16, 2016 was initially that he was minded to give the claimant a final written warning.
‘This was in the light of having concluded that: that claimant was not frank and honest; that the claimant had deliberately under-reported the incident; the claimant tampered with the search histories and then lied about it; that it was a case of gross misconduct.
‘We do not consider that a reasonable employer would have dismissed in circumstances where they have stated that they will not dismiss and there are no relevant changes in the situation.
‘The respondent’s approach was to look for evidence of guilt and there was a deliberate suppression of information that pointed to the claimant’s
innocence. Having obtained the expert report, following the claimant’s suggestion, to fail to disclose it to the claimant is inexplicable.
‘When set against the fact that the respondent sought a further expert report for reasons not clearly explained, we consider it possible the reason was because the respondent did not like the content of the report which gave an innocent explanation for the altered history.’
The tribunal found that Mr Nel was wrongfully and unfairly dismissed and ordered the school to pay him £33,856.91 pounds compensation.
Mr Nel however lost his claims that he had been fired for whistleblowing or making a ‘protected disclosure’, and, the report added: ‘The claimant’s complaint of unfair dismissal pursuant to section 103A of the Employment Rights Act 1996 is not well founded and is dismissed.’