4th November, 2020
Unfair Dismissal – K v L
The EAT, in overturning the earlier tribunal’s decision that a dismissal had been fair, held in the recent case of K v L that it was unfair to dismiss a teacher accused of possessing a computer with indecent child images when he wasn’t prosecuted.
The Claimant was an experienced teacher with an unblemished record. He was suspended after the Police found a shared computer at his home with indecent images, but the police couldn’t establish who had downloaded those images. The Procurator Fiscal decided not to prosecute but reserved the right to do so in the future.
The employer considered that there had been an irretrievable breakdown of trust and confidence and an unacceptable risk of serious reputational damage and dismissed the employee.
During the disciplinary process, the Claimant denied responsibility for the images. The dismissing manager didn’t uphold the images allegation but dismissed the Claimant because of an irretrievable breakdown of trust and confidence because it couldn’t be shown that he hadn’t downloaded the images.
The dismissing officer also cited a risk of reputational damage from continued employment if he were prosecuted in future. The tribunal rejected the Claimant’s unfair dismissal claim.
The Claimant appealed. The EAT upheld the dismissal unfair on two grounds:
- The employee was not given notice that he was at risk of being dismissed on the grounds of reputational damage and was not able to respond to these allegations; and
- It was not reasonable to dismiss on the basis of a “concern” that the claimant might have committed the offence and this did not satisfy the reasonableness test.
The EAT held that the employer was not entitled to assess matters on the basis of unknown risks, but the evidence known, stating that the standards of ‘reasonableness’ and ‘equity’ in s98(4) Employment Rights Act require an employer to apply the balance of probability. The risk of a future conviction was an unknown risk that couldn’t be relied upon as a basis for dismissal.
- Ensure that before dismissing an employee, a fair process and investigation is carried out – this includes ensuring the employee is aware of all of the allegations and is provided with an opportunity to respond to them.
- Ensure disciplinary procedures and policies are up to date and followed.
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