Dismissal based on inconclusive evidence

8th October 2020

Dismissal based on inconclusive evidence

In K v L, the Employment Appeal Tribunal considered whether a teacher who had been charged with possession of indecent images of children but had not been prosecuted, had been unfairly dismissed.

The police charged the teacher after finding indecent images on a shared computer at his home. They couldn’t establish who had downloaded the images. After reviewing the evidence, the Procurator Fiscal decided not to prosecute but to keep the case under review.

His employer took disciplinary action even though they had limited information on which to base their investigation. They invited him to attend a disciplinary hearing. He admitted that a computer in his home was found to contain indecent images but denied that he was responsible for those images. The Head of Service conducting the disciplinary hearing found that there was insufficient evidence to conclude that he was responsible for downloading the images but dismissed him nonetheless. This was on two grounds:

i. it couldn’t be proven that he hadn’t downloaded the images and so there was an unacceptable risk to children if he returned to his role as a teacher; and

ii. there was a reputational risk to the Council if he were prosecuted in the future, and it became public knowledge that they were aware of the allegations but had continued to employ him.

The Employment Tribunal rejected the employee’s unfair dismissal claim but the Employment Appeal Tribunal allowed the appeal.

The Employment Appeal Tribunal found that the employee should have been given notice of the grounds for dismissal so he could address those issues in the disciplinary hearing. The school had not included reputational damage as one of the potential grounds for dismissal in the letter inviting him to the disciplinary hearing, and only gave him notice of misconduct.

The employee also argued that the school had to be satisfied, on the balance of probabilities, that he had downloaded the indecent images of children and claimed they had applied the wrong standard of proof when they dismissed him for misconduct. The Employment Appeal Tribunal upheld this ground of appeal. They said it was unreasonable to dismiss him on the basis that he might have committed the offence, and the employer could not rely upon unknown risks as a reason for his dismissal.

The Employment Appeal Tribunal concluded that the evidence was insufficient to support a dismissal based on reputational damage and held the dismissal unfair.

This case highlights that dismissing an employee for reputational damage is not straightforward and, in some circumstances, will not be a fair reason for dismissal. This case also emphasises that any letter inviting an employee to a disciplinary meeting or hearing must clearly set out the employer’s concerns and their reasons for considering an employee’s potential dismissal. This will allow the employee a fair opportunity to make representations and respond to the issue being raised by their employer.

For further information on the disciplinary procedure or for any assistance with a disciplinary letter to your employee(s) then please contact Marie Allen at marie.allen@gotelee.co.uk or 01473 298133, or Kimberley Clayton at kimberley.clayton@gotelee.co.uk or 01473 298168.

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