[2025] UKUT 029 (AAC)

We have considered first whether there was any material mistake of fact in the decision of DBS.

So far as the hair incident itself is concerned, we are satisfied that there was no error. The witness statements obtained by the employer provided sufficient evidence that the incident occurred as the employer and DBS concluded it had. The evidence of other staff was not “hearsay”. Each member of staff provided direct evidence of what they had individually witnessed, albeit that evidence was for the most part circumstantial evidence rather than direct evidence of the incident. However, MN personally witnessed the hair-pulling by the appellant. The appellant was not in a position to gainsay what MN was able to see or hear from where she was standing. Strong support for the incident having occurred as described by MN is then provided by AL having witnessed Child A’s immediate reaction to it and his accusation against the appellant. The evidence of EB and LC as to the appellant’s recounting of the incident immediately afterwards and their description of the appellant’s demonstration of what she had done as involving ‘tugging’ Child A’s hair also provides strong support for MN’s account of what happened.

We do not find the appellant’s denial of the incident credible. She has not been consistent in her account. Her grounds of appeal to the Upper Tribunal were broadly in line with her representations to DBS. Notably, it was not until her witness statement in these proceedings that she provided her account of having touched Child A’s hair. The impression gained from her representations to DBS and her grounds of appeal to this Tribunal was that she denied the whole incident, although on reflection we can see that her denial was specific to the allegation of ‘pulling’ Child A’s hair. There were also multiple other inconsistencies between her evidence to this Tribunal and the account she gave to DBS in her representations, as we have indicated above when recording her evidence to us, during the course of which these inconsistencies were put to her by counsel. It will be noted that we have not recorded above her responses to these inconsistencies being put to her, but that is because she did not make any specific response that in any way explained the inconsistency.

We acknowledge that memory is fallible and that the inconsistencies may not have arisen as a result of any deliberate untruthfulness on the part of the appellant, but we do find that the inconsistencies render her evidence unreliable.

In contrast, we can find no reason not to accept the evidence of the pre-school’s witnesses. The appellant’s suggestion that these witnesses were acting in retribution for her having criticised policy at the pre-school has no merit in our judgment. The fact that the appellant has added further criticisms of the pre-school in her witness statement than she included in her representations to DBS underscores for us that this is after-the-event reconstruction on the appellant’s part.

In any event, the documentary evidence as a whole is consistent and plausible in a way that points firmly away from corruption or conspiracy. The ‘anonymous’ witness statements are evidently written by different people in different ‘voices’ (and we have in the bundle some of the witness statements in their original handwritten format). They attest to events in terms that are broadly consistent, but with minor differences of detail in the accounts of the sort that tends to indicate authenticity rather than conspiracy. This is most clear in the accounts of MN and AL of the hair incident and its aftermath where MN does not recount having asked AL to help with the blue form or by checking with Child A is all right, whereas AL’s account is fuller. Likewise, EB and LC’s accounts of the meeting in the office after the incident are similar but different in ways that indicate authenticity.

Further, the appellant’s own email of 14 June 2023 is much more what would be expected if the appellant had pulled Child A’s hair and knew she had been seen doing it, than if all she had done was to lightly touch his hair. If the latter was really what happened, we would have expected to see something of that account in the email.

We therefore find that DBS did not make any mistake of fact about the hair incident. Like DBS, we find that the appellant pulled Child A’s hair hard enough to hurt him. Moreover, that was, we find, what she intended to do as she was trying to demonstrate to him how it hurts someone else if you pull their hair.

We then consider whether DBS was also right to find as facts that the appellant lacks coping skills and lacks empathy. We find that DBS was not mistaken in these respects either. In making those findings, DBS relied on the background and circumstantial evidence from the pre-school as to the appellant’s frustration earlier in the day, her concerns that the children lacked consequences, and her refusal to accept the effect that the heat had on the children. In relation to all these matters, we find that it was open to DBS to rely on the pre-school’s statements. We, too, accept that evidence, much of which was accepted by the appellant in cross-examination anyway. To the extent that it was not, we prefer the written statements of the pre-school staff to the appellant’s evidence for the much the same reasons that we rejected her evidence in relation to the core allegation of hair-pulling. We have not found the appellant to be a reliable witness, while the ‘anonymous’ witness statements all seem to us to be plausible, credible and corroborative of each other.

We agree with DBS that the hair incident itself demonstrates that the appellant lacks coping skills and empathy. The evidence of the appellant’s expressed frustrations earlier in the day and lack of empathy with the children in relation to the heat contribute to this picture. The appellant’s explanation to us in oral evidence that her concern on the day when speaking to KN after the incident was not the hurt that had been caused to Child A but her own personal and financial circumstances underscored for us her lack of empathy.

We add that we do not consider there is anything in the appellant’s allegations of misconduct or poor practice and the pre-school generally, or her complaints of unfair treatment, that has any bearing on the matters we have to decide. We have not found her to be a reliable witness so we would not be minded in any event to accept her allegations against other staff without corroborating evidence, but even if she were right that there was misconduct and poor practice by others at the pre-school, in this context two wrongs do not make a right. If she really has concerns, she should report them to the appropriate authorities, but what she says can have no bearing on our factual findings about what happened in her case. The question of whether she was dealt with fairly by her employer is also not directly relevant to the issue we have to decide. We are not an Employment Tribunal deciding whether she was unfairly dismissed. Our task is to decide whether DBS has or has not erred in law or fact in including her on the barred list. As a matter of fact, we do not consider that the appellant was dealt with unfairly by her employer: the only real potential source of unfairness was that witness statements were anonymised, but as it is apparent that the appellant could actually tell who each witness was, in practice she was not disadvantaged. There was certainly no unfairness that had a material affect on the quality or reliability of the evidence on which DBS based its decision, and on which we base ours.