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Dismissal for reputational damage unfair if it is not a formal allegation


Posted on: Sep 12,2020


In K v L the Employment Appeal Tribunal has re-emphasised that in accordance with the principles of natural justice, an employee facing disciplinary action should be able to understand the precise allegations against them so that they can meaningfully put their case in their own defence. The ACAS Code of Practice on Disciplinary and Grievance Procedures also requires that the employee has sufficient information about the alleged misconduct to prepare to answer the case against them.  It is therefore vital that all allegations are set out in the letter inviting the employee to the disciplinary hearing.

 

The Story

A school Teacher had been employed for 20 years with an unblemished record. On 30th December 2016 the Police entered his property to search for and seize computers. The Police warrant was based on intelligence that indecent images of a child or children had been downloaded to an IP address associated with him.

The Teacher shared his home with his son and both he and his son were taken to the Police station for questioning. The Police examined three computers in the Teachers house and found one that had data of interest to the Police. The teacher denied responsibility for downloading the images that were found. He explained that his son and many of his son’s friends had access to this computer.

The Police charged him with possession of indecent images of children but the Procurator Fiscal (the Scottish equivalent of the Crown Prosecution Service) decided not to prosecute.

After learning of the charge and subsequent decision not to prosecute, the employer began a disciplinary process. The invitation to the disciplinary hearing described the complaint against the teacher as being ‘due to you being involved in a police investigation into illegal material of indecent child images on a computer found within your home and the relevance of this to your employment as a teacher.’

The school ultimately decided to dismiss him and gave several grounds for doing so, including:

  • He had been charged by the police with an offence of indecent child images being found on a computer in their home;
  • Although the decision had been not to prosecute, the prosecutors advised that there was an obligation on them to keep cases under review and they reserved the right to prosecute the case against the teacher at a future date;
  • He had admitted to the disciplinary panel that a computer located in his  household contained indecent images of children;
  • The employer was unable to exclude the possibility that the teacher was responsible for the indecent images being downloaded;
  • There was a risk to the employer local authority’s reputation if it continued to employ the teacher and a future prosecution or similar action were to occur; and
  • There had been an irretrievable breakdown of trust and confidence between the teacher and the employer.

 

In the Employment Tribunal (ET) and EAT

The teacher brought a claim for unfair dismissal which was dismissed by the ET so he appealed to the EAT.

The EAT agreed with the teacher that his dismissal was unfair for the following reasons:

Unclear Allegations

The EAT said that it was against the rules of natural justice to state a ground of dismissal in the dismissal letter that had not been clearly set out in the invitation to the disciplinary meeting. Although reputational issues had been raised by the school’s investigation report and had been touched on briefly during the disciplinary hearing, they were not put formally to the employee and the employee had not commented on them at the hearing. The EAT made clear that any allegations must be clearly expressed so that an employee can adequately prepare themselves to answer the case. The EAT disagreed with the tribunal’s view that it was sufficient grounds for dismissal to rely on an issue identified in an investigatory report that was not addressed in the disciplinary allegations.

Guilt on the Balance of Probabilities

The EAT also agreed with the teacher that the dismissal on conduct grounds was unfair as it was not based on a finding of misconduct on the balance of probabilities. The decision maker had dismissed the teacher partly on the basis that, although there was not enough evidence to prove who had downloaded the images, the possibility that the teacher had done so could not be excluded. The EAT made clear that this was the wrong standard of proof. In disciplinary procedures, allegations will be proven if they are more likely than not to be true. In other words, there is more than a 50% chance that the alleged conduct occurred. Here, the school had wrongly decided to dismiss because there remained a possibility that the teacher had downloaded the images.

The issue of Reputational Damage

The EAT drew comparison between this case and that of Leach v Office of Communications [2012]. In Leach the employer had been warned by the police that the employee had engaged in paedophile activity in Cambodia. The employer fairly dismissed the employee because of the risk to its reputation in continuing to employ him. However, in Leach the employer had access to information from the police which indicated it was more likely than not that the conduct had taken place and the employee had attempted to conceal the matter from his employer. There was also significant interest from the national press about the case.

In contrast, in this case, the school had not found evidence to establish that the conduct was more likely than not to have occurred and had no evidence to suggest reputational damage was likely. When dropping a prosecution, the Procurator Fiscal commonly reserves the right to prosecute should further information come to light. This did not mean that such a future prosecution would happen and damage the employer’s reputation.

 

See also

How to survive a criminal charge, conviction or police caution at work

Personal information about criminal convictions and offences

Working or finding a job with a criminal record

The Disclosure and Barring Service

Is it fair to dismiss an employee who has been charged with a criminal offence, but not convicted?

 

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