Caretaker Triumphs in Unfair Dismissal Tribunal Over McDonald's Outing with Students
A grammar school caretaker, whose intellectual functioning places him in the bottom five percent for his age group, has won a landmark unfair dismissal case. Kevin Lilly, 47, was dismissed from Southend High School for Boys in Essex after accompanying three sixth-form pupils to McDonald's during a lunch break in September 2023. The tribunal ruled in his favour, accepting his argument that cognitive impairments prevented him from fully comprehending the school's professional conduct rules.
Longstanding Behavioural Concerns and Final Dismissal
Mr Lilly had been employed at the selective boys' school for approximately 16 years, during which time he received multiple warnings about his conduct around students. These included admonishments for high-fiving pupils, performing magic tricks, doing handstands against office walls, and even participating in a charity slave auction in 2010. Letters from as early as 2013 instructed him to avoid pupils during break times and lesson changes.
In 2018, he was explicitly told to maintain a "professional manner" while interacting with students. However, the tribunal heard that Mr Lilly interpreted the word "professional" to mean "being really good with students," demonstrating a fundamental misunderstanding of the term's expected application in an educational safeguarding context.
The McDonald's Incident and Subsequent Investigation
The incident that led to his dismissal occurred when Mr Lilly accepted an invitation from three sixth-formers to join them for lunch. He travelled with them in their car to a local McDonald's, ate with them, and returned to school in their vehicle. This was observed and reported to the head teacher, Dr Robin Bevan.
An investigation was launched, resulting in Mr Lilly's suspension and, following a disciplinary hearing in October 2023 attended by him and his mother, his dismissal for misconduct. The school's report concluded his actions breached safeguarding policy "not for the first time" and referenced his history of failing to adhere to boundaries.
Tribunal Findings and Cognitive Assessment
Representing himself against experienced employment barrister Ben Amunwa, Mr Lilly argued at the tribunal that he did not realise his actions were wrong at the time. Employment Judge Victoria Othen found key points in his favour.
Firstly, she determined that on a literal interpretation, Mr Lilly had not "met" the pupils in an informal context as prohibited by policy, but rather travelled with them from the school premises. More significantly, the judge emphasised the school's failure to adequately consider Mr Lilly's cognitive limitations.
A 2019 clinical psychology assessment, which the school had not seen, placed Mr Lilly's IQ in the 3rd to 6th percentile for his age—equivalent roughly to the mental age of an 11-year-old. The report noted difficulties with understanding verbal instructions and indicated symptoms of ADHD, for which he was awaiting diagnosis. The judge ruled the school should have made greater efforts to investigate his cognitive function and possible medical needs during the disciplinary process.
Broader Implications and School's Oversight
The tribunal also highlighted inconsistencies in the school's handling of the case. While headmaster Dr Bevan stated the dismissal was based solely on the McDonald's incident, the dismissal letter itself referenced "repeated failures." Furthermore, appraisals from 2022 and 2023 noted Mr Lilly required reminders to complete basic tasks like emptying bins and often spent time in the sixth-form common room instead of working.
During the investigation, Mr Lilly stated he had "never been told he can't go with students to McDonald's," leading the school to conclude he might need every single boundary explicitly spelled out. Judge Othen's ruling ultimately found the dismissal unfair, underscoring the necessity for employers to account for an employee's cognitive capacity and understanding when enforcing conduct rules, especially in safeguarding-sensitive environments like schools.
