A grammar school caretaker with the IQ of an 11-year-old has won his unfair dismissal case after being sacked for going to McDonald’s with pupils – by arguing he was too stupid to know what the word ‘professional’ meant.
Kevin Lilly, 47, had been warned about his behavior around pupils at Southend High School for Boys, in Essex, for the best part of 16 years when he was finally dismissed in October 2023.
But he sued the school for unfair dismissal – arguing he was too cognitively impaired to understand the rules he was breaking.
Despite scoring in the bottom five percent among adults his age for intellectual functioning, Mr Lilly represented himself against experienced employment barrister Ben Amunwa.
Judge Victoria Othen ruled in his favour after he told the tribunal he thought the word ‘professional’ meant ‘being really good with students’.
In September 2023, Mr Lilly jumped into a car with three sixth-formers after they invited him on the lunchtime trip, ate wtith them in the fast-food restaurant, then got a lift back to school.
He was spotted and reported to the head teacher, who suspended him three weeks later and launched an investigation into the incident.
In the process, Mr Lilly admitted it had been a stupid thing to do – but insisted he didn’t realise at the time he was doing wrong. It was also noted he was awaiting diagnosis for ADHD.
Kevin Lilly, 47, won his unfair dismissal case after the judge found he did not understand the meaning of the word ‘professional’
Southend High School for Boys, in Essex, dismissed Mr Lilly for misconduct after he went to McDonald’s with a group of three sixth-formers
A detailed report by the school found that Mr Lilly’s behaviour had breached safeguarding policy ‘not for the first time’.
This referred to a number of past instances, dating back to his early days at the school, when he had been warned against high-fiving pupils, showing them magic tricks, and doing handstands against an office wall.
In 2010, he was also told it had been inappropriate for him to take part in the school’s charity slave auction.
A letter to Mr Lilly in 2013 told him to ‘ensure that you keep away from pupils at lunchtimes, break times and lesson changeovers’.
Five years later, he was told that whilst his ‘friendly disposition’ was allowed, he should ‘maintain a professional manner’ when speaking to pupils – and again ordered him to take breaks in staff areas, rather than with students.
Appraisals and letters from 2022 and 2023 noted Mr Lilly had to be reminded to carry out his tasks, such as emptying bins, and to stick to his work schedule.
There were said to be a ‘number of occasions’ when Mr Lilly was supposed to be carrying out certain tasks, but was instead hanging out in the sixth-form common room.
The school’s report also revealed that, during an interview, Mr Lilly said he had ‘never been told he can’t go with students to McDonald’s’.
Mr Lilly explained he had ‘never been told he can’t go with students to McDonald’s’, leading to the school’s conclusion he may need to have every single boundary spelled out
At a disciplinary hearing in October 2023, which Mr Lilly attended alongside his mother, the school made the decision to dismiss him. The caretaker’s appeal to keep his job was dismissed.
When the case went to tribunal, one of Judge Othen’s key finding was that Mr Lilly did not properly understand the meaning of the word ‘professional’.
Pressed for a definition, Mr Lilly said he thought it meant ‘being really good with students’.
The Judge found that he had not breached school policy against meeting pupils in an informal or social context because, on a literal reading, he did not ‘meet’ the students in the way, but rather travelled with them from school.
During cross-examination, headmaster Dr Robin Bevan said the dismissal had been made based solely on the McDonald’s incident.
The judge, however, pointed to the dismissal letter, which referred to Mr Lilly’s ‘repeated failures’, and the investigation report, which said his behaviour breached the rules ‘not for the first time’.
It was also found that the school did not take Mr Lilly’s possible medical needs into account.
During an assessment with a clinical psychologist in 2019, Mr Lilly was found to have an IQ in the third to sixth percentile – equating roughly to the mental age of an 11-year-old.
It was noted that he struggles with understanding verbal instructions, and also demonstrated symptoms of ADHD.
The school did not see the psychologist’s report at any point, but the judge’s ruling repeatedly emphasised it should have made more of an effort to investigate Mr Lilly’s cognitive function.