A recent Employment Appeal Tribunal (EAT) case highlights the importance of employers correctly framing disciplinary charges to ensure that any resulting dismissal is fair.
In this case, the Claimant, a teacher, brought a claim for unfair dismissal against his employer, who had dismissed him for possessing a computer with indecent images of children, when he hadn’t been prosecuted and it wasn’t definitively known who had downloaded the images.
K v L – Case background
The teacher in question was charged by the Police with possession of indecent images of children in December 2016. However, due to the fact that the Police could not ascertain who downloaded the images, the teacher was not prosecuted, although the right to do this at a later point in time was reserved.
The employer school made enquiries with the Crown Office in relation to their employee and requested evidence in relation to the charges made against him. The school received a restricted letter, with a summary of evidence which could not be shared with anyone else, including the manager who would eventually dismiss the teacher.
The school convened a disciplinary meeting and subsequently dismissed the teacher. The Claimant was sacked for an irretrievable breakdown of trust and confidence. However, the school made no reference to concerns over reputational damage as a ground for dismissal.
Unfair dismissal claim
The teacher brought a claim for unfair dismissal claim, which was rejected by an Employment Tribunal. The Claimant then appealed this ruling, arguing that the reason given by his employer for dismissing him didn’t include the risk of reputational damage and consequently the school could not fairly dismiss him on this ground.
Additionally, since the school’s case was that the act of downloading the images was the misconduct, and not the risk of reputational damage, it was necessary in the circumstances to decide on the balance of probabilities whether he was guilty of downloading the images and there wasn’t sufficient evidence which proved that he had.
The EAT ruled in favour of the Claimant, on the following grounds:
- Due to the fact that the school, as an employer, has to give an employee notice of the ground on which they are being dismissed, reputational damage is a separate ground for dismissal from misconduct and has different considerations. Consequently, the Claimant had insufficient notice of that ground when we was dismissed.
- It was not appropriate or reasonable for the school to dismiss the Claimant due to the fact that he might have been responsible for downloading the images, when there was no evidence that he had. Additionally, the risk of a future conviction was an unknown risk which the school shouldn’t have relied upon as a reason for dismissing the Claimant.
The case was sent back to the Employment Tribunal to consider remedy (compensation).
It is a principle of natural justice that an employee, facing a disciplinary hearing, should know the charges against him so that he can best prepare his defence. In this case, this was breached because the school did not refer to concerns over reputational damage but later sought to rely on this as a ground for a fair dismissal. This illustrates the care which should be taken at the time of drawing up disciplinary charges and in complicated or contentious cases, employers should consider getting expert advice to ensure that their processes are fair and will withstand scrutiny.