This article reviews the cases of K v L and Leach v The Office of Communications and considers the impact these cases have on an employer’s ability to dismiss employees to protect against reputational damage.
K v L
This case involved a teacher being dismissed from the school where he was working due to a perceived risk of reputational damage. This was on the basis that the teacher had been investigated for indecent images of children being downloaded to his personal computer.
Whilst the authorities decided there was insufficient evidence to prosecute the teacher at that time, the school moved to begin a disciplinary hearing which resulted in the teacher’s dismissal.
The teacher then brought a claim against the school for unfair dismissal, which was upheld by the Employment Appeals Tribunal (“EAT”). The EAT cited the following factors in reaching its decision:
- On the balance of probabilities, the school could not conclude the teacher was guilty and could therefore not dismiss fairly on the ground of misconduct;
- The school was looking to rely on “reputational damage” as a ground for dismissal but this was absent from the letter inviting the teacher to the disciplinary hearing and only briefly mentioned at the hearing. As such, the EAT found that the teacher had not been provided sufficient notice of the “reputational damage” ground that the school was looking to rely on; and
- Even in the event that the school had sufficiently notified the teacher of the “reputational damage” ground, the evidence in the case was insufficient to make that out as a ground for dismissal.
Leach v The Office of Communications
On the other hand, in the case of Leach v The Office of Communications, the dismissal of Leach by the Office of Communications was deemed to have been fair by the Court of Appeal. In this case, allegations had been made against Leach about child sex offences but the allegations were not proven at the time of dismissal.
However, the Court of Appeal deemed that the risk of reputational loss was a fair ‘substantial reason’ for dismissal.
Relevant Factors Distinguishing the Cases
Whilst the two cases discussed above seem relatively similar on the face of it, they reach different outcomes. This demonstrates the difficult balancing act that employers have in seeking to protect their reputation and not dismissing an employee unfairly. Cases will need to be reviewed on a case by case basis by employers.
The EAT in K v L actually drew comparisons between the two cases, which they deemed relevant in reaching a different conclusion to that reached in Leach:
- Actual Risk of Reputational Loss: in the Leach case there was already press interest in the story; whereas, there was no existing press interest in the K v L case at the time the teacher was dismissed; and
- Conduct of Employee: Leach had concealed the court case from The Office of Communications and misled the press.
Points for HR Teams to Consider
In circumstances where employers are looking to dismiss employees on the grounds of protecting the reputation of the company, they will need to consider the following points:
- Genuine risk of reputational risk: the actual likelihood of the story reaching the press or social media, or stakeholders, will need to be assessed;
- Reliable and Sufficient Evidence: evidence of the underlying concern should not be accepted without question and employees should be given the ability to challenge that evidence; and
- Grounds for Dismissal: where employers are considering dismissing employees, they should clearly specify in written communication and during any disciplinary hearing the grounds that they are seeking to rely on for any potential dismissal
For more information on the issues mentioned within this blog, please contact a member of the Employment Team.