Is it fair to dismiss an employee based on the risk of a future conviction that is unknown at the time of dismissal?

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03 September, 2020

Summary of Facts in the case of K v L

The Claimant in this case was a Teacher. He was accused by the police of being in possession of indecent images, which it appeared were downloaded to an IP address associated with the Claimant. The Claimant denied the allegations. Upon review of the evidence, it was decided that he would not be prosecuted but future rights to prosecute were reserved.

The Claimant was invited to a disciplinary hearing by letter dated 7 December 2016 and the allegation was as follows:

"The reason for the hearing was 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 were aware that the Claimant would not be prosecuted and were provided with a redacted copy of the evidence held strictly for the purposes of them conducting their own investigation. During the disciplinary hearing the Senior HR Advisor referred to reputational risk, but did not address this in detail, nor did it form part of the allegations against him. They did however note, this reputational damage could occur at some point in the future if he was prosecuted.

The outcome of the disciplinary was that there was not enough evidence to conclude the Claimant was responsible for downloading the images, but that the School considered he should be dismissed anyway on the basis that there was an "unacceptable risk to children… that this had resulted in an irretrievable breakdown in trust and confidence… and an unacceptable level of risk to the Council of serious reputational damage."

Employment Tribunal (ET)

In the first instance, the ET found the dismissal was not unfair and the Claimant was unsuccessful in bringing his claims. In respect of the finding that his conduct could amount to reputational damage, while the ET accepted that the allegation did not form part of the allegations against him, it considered that because it was mentioned in the investigation report, it "reflected" grounds for dismissal.

Employment Appeal Tribunal (EAT)

On the contrary, the EAT held that the dismissal was unfair on two grounds:

  1. It must be clear in the disciplinary invite letter on what grounds the employer may consider dismissal. In coming to this decision the EAT outlined that an investigation report can be used to interpret the grounds for disciplinary action, but it cannot be used to supply a whole new allegation that would form the basis for dismissal.
  2. The risk of a future conviction is an unknown risk that cannot be relied upon as a basis for dismissal.

Lessons Learnt

This case highlights the importance of pausing after an investigation and properly considering the allegations to be taken forward to a disciplinary hearing. It is better for employers to have more allegations being actively considered than to have a vague allegation that does not allow room for wider consideration for dismissal. Tactically, it is better to have more allegations and to not uphold some of those, as this demonstrates that reasonable and fair consideration has been given to the allegations. If the evidence is not clear you should consider dismissal on SOSR grounds rather than misconduct.

The test required of an employer is to apply on the balance of probabilities (more likely than not) the misconduct is substantiated. This finding must be based on tangible evidence obtained during a reasonable investigation and not based on a presumption of what might happen in future - in this case there wasn't as it was known the police would not prosecute. Employers also need to give more careful consideration to serious allegations such as these, as it could result in damage to the employee's career not just loss of employment with a particular School.

For more information contact Trishna Modessa-Parekh in our Employment & HR department via email or phone on 01772 220215. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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