[2025] UKUT 311 (AAC)

The appellant had worked as a transport assistant accompanying young people with special educational needs on a minibus to school. It was alleged, and the respondent (hereafter “DBS”) found that:

“On various occasions between 1 January 2017 and April 2019, whilst working as a passenger assistant guide, you repeatedly intentionally physically and emotionally harmed student MS by:

- hitting his head against the bus window;

- hitting him on the side of his head;

- punching him on his back;

- pinching his nipples causing bruising to his chest;

- grabbing him by the neck causing pain;

- touching his groin over the top of his clothing whilst making sexual noises;

- rubbing your own penis over your clothing whilst looking at MS;

- making derogatory comments about his mobility;

- calling him names in relation to his physical appearance;

- making racist comments and telling him he must laugh;

- telling him he must blame his injuries on his fellow students as you would deny harming MS;

- threatening him that you would send people to MS's home address to harm him.”

The appellant was prosecuted for offences under section 1 of the Children and Young Persons Act 1933 and on 31 January 2024 was acquitted.

The sexual references in the allegations and the evidence were approached by DBS (and the panel agrees) on the footing that if established they appeared to form part of bullying behaviour rather than motivated by any sexual intention on the part of the appellant.

The minibus was built as a 15 seater vehicle but some seats had been removed to accommodate a wheelchair. The 10 remaining passenger seats were laid out with a row of 4 single seats down the nearside and 3 pairs of seats down the offside. The vehicle was equipped with a lift at the rear to bring a wheelchair on board. The rear doors had glass panels through which a driver would be able to see traffic on the road behind the vehicle by using the rear view mirror.

Although the pupils who used the minibus fluctuated to a degree during the period with which we are concerned, there was a core group who were the sole users of the bus for the majority of the time: MS (the alleged victim), JS, AC and CM. All were teenage boys and the evidence suggests lively conversation between them on matters of interest to them ranging from politics to sex as well as unkind teasing.

MS was somewhat younger than most, if not all, of the others. He turned 13 in January 2017 and, the evidence suggests, somewhat chubby. He is autistic, has cerebral palsy, is significantly visually impaired and used a wheelchair for most of his mobility.

The bus driver was Mr SM. He took over the route in September 2017 and continued as the driver until April 2019. Sadly, he has since died.

The appellant, who presented his case to us fluently and without recourse to the interpreter save for the meaning of one or two words, told us that he is an actor and a drama teacher qualified in Italy and had previously worked in Scotland as a teaching assistant due to an issue concerning recognition of his qualification.

The appellant started as a passenger assistant guide in 2016. On 8 March 2019 there was an altercation with one of the students on the bus, CM, to which we refer further below. That month the appellant was moved from the route with which we are concerned to a vehicle serving a different route. In May 2019 he raised a grievance about alleged unpaid wages. An allegation was made in October 2019 that he had tapped a student forcefully on the shoulder and had shouted at students. He was suspended and resigned before disciplinary proceedings were completed. The DBS does not rely on the October 2019 allegation.