Last week, the Employment Appeal Tribunal (EAT) held in K v L that it was unfair to dismiss an employee for a crime that he was charged with but not prosecuted for, where the evidence was inconclusive.
The Claimant, a teacher, was investigated and charged by the police in December 2016 after intelligence had alerted them to the fact that indecent images of children had been downloaded to an IP address associated with the Claimant. The police referred the matter to the Procurator Fiscal, who after reviewing the information supplied by the police, decided not to prosecute, but reserved the right to do so in the future.
The Claimant was informed of this decision and communicated it to his employer in February 2016. The Claimant’s employer made enquiries with the Crown requesting information concerning the alleged incident. The Crown in response provided the Claimant’s employer with a redacted summary of evidence. This evidence was subsequently not shared with the dismissing manager.
The Claimant’s employer undertook disciplinary action based on the Claimant’s involvement in the police investigation. Following the disciplinary hearing, although the Claimant’s employer was not able to prove that the Claimant was responsible for downloading the indecent images of children found on his computer, the Claimant was dismissed on the ground that there had been an irretrievable breakdown of trust and confidence because the Claimant could not prove that he had not done so, as well as an unacceptable level of reputational damage to his employer.
The Employment Tribunal rejected the Claimant’s claim for unfair dismissal. On appeal, the EAT held that the Claimant had been unfairly dismissed for two reasons. Firstly, the Claimant had not been put on notice that he was at risk of being dismissed due to reputational damage to his employer (the Claimant believed the complaint was about his misconduct) and as the Claimant had not been put on notice of this ground, a decision should have been made based on their Claimant’s alleged misconduct alone.
Secondly, it was unreasonable to apply a test that in effect entitled the employer to dismiss unless all doubt as to the Claimant’s guilt had been excluded. By applying this test, they had dismissed the Claimant on the basis that the Claimant might have committed the offence. Instead the employer should have applied a balance of probabilities test assessing the known evidence and not the unknown risks, for example the risk of a future conviction.
This case emphasises the importance of putting an employee at risk of the potential grounds of dismissal when carrying out a disciplinary investigation and addresses the importance of assessing the evidence when making a decision to dismiss, rather than placing emphasis on unknown risks. It also reminds employers that damage to reputation is secondary to misconduct and is a separate ground for dismissal with distinct considerations.
If you would like advice on how to conduct a fair disciplinary process, please contact any member of the team.