Employment and Immigration Update - Dismissal following criminal charges


25 September 2020

The Employment Appeal Tribunal (EAT) has handed down its decision on whether the dismissal of a teacher for alleged possession of indecent images of children was fair.

K v L UKEATS/0014/18

Facts

The claimant in this case was a teacher who had a long and unblemished service record. He and his son were questioned by the police in relation to an allegation that indecent images of children had been downloaded to an IP address associated with the claimant. He denied the allegations but was suspended pending an investigation.

The claimant was charged with a criminal offence, but it was later decided not to proceed with the prosecution.

In an attempt to conduct its own investigation the employer sought information from the police, who provided a very limited ‘summary of evidence’. The employer produced an investigatory report and invited the claimant to a disciplinary hearing, at which he denied that he was responsible for the images. The disciplining manager decided that there was insufficient evidence to conclude that the claimant was responsible for downloading the images, but instead decided that he should be dismissed due to the unacceptable risk to children and the potential for serious reputational damage.

The claimant’s claim for unfair dismissal was rejected by an employment tribunal. He appealed to the EAT on the basis that the school had not relied on reputational damage as the basis for the disciplinary proceedings.

EAT Decision

The EAT has upheld the appeal, finding the claimant’s dismissal to be unfair.

The claimant was invited to a disciplinary hearing on the basis of his alleged misconduct, not on the grounds of potential reputational damage. As they were purporting to discipline him for reasons of misconduct, it was necessary for them to make a finding on whether he had downloaded the images. On the basis of the limited evidence available, they would have been bound to conclude that the alleged misconduct had not been established on the balance of probabilities.

The question of reputational damage raised different considerations, which the claimant had not been given the full opportunity to address at the disciplinary hearing. In the EAT’s view, there was insufficient evidence to support a dismissal based on reputational damage, since there was no information available to the employer about the nature or seriousness of the images. There appeared to be no prospect of a future prosecution unless circumstances changed. This meant that it was not reasonable to base its decision to dismiss on the risk of future reputational risk.

Consequences

The question of whether an employer can fairly dismiss an individual accused of criminal offences can present complex practical issues. As this case shows, where the allegations form the basis of an ongoing criminal investigation, it can be very difficult for the employer to conduct a fair investigation.

An employer might be more likely to succeed in achieving a fair dismissal if it can show that the dismissal is not for the alleged misconduct (which can rarely be proven, even on the balance of probabilities), but due to the reputational risk to the employer, which would fall within the category of ‘some other substantial reason’ for a fair dismissal. However, the employer would need to show some evidence of an actual or potential for reputational risk, which was missing in this case. The employee must also be informed in advance of the disciplinary hearing that this is a potential ground for dismissal.

These articles are from the September 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at September 2020.