It is reasonable for employers to want their employees to have clean criminal records for a variety of reasons, one major reason being the reputation of the business or institution they are responsible for. However, in the eyes of the law any dismissal made in response to an employee being at risk of having committed a crime is seen as unfair. Just because the possibility of the crime is there, does not give the employer the right to sack the accused before the proper processes have been completed.  The employer must arrive at a decision based on the facts, applying the balance of probabilities, as to whether the misconduct really occurred.

 

Some things employers should consider when debating dismissal

 

Rather than heading straight for an automatic dismissal, employers should consider some of the following options:

 

• whether they as the employer should warn, and consult with, the employee about the reason for considering dismissal

 

• arrange a meeting between the employer and employee (and a representative if the employee chooses), before the decision to dismiss is taken. This gives the employee the chance to explain themselves and to express their views

 

• assess whether there are any alternatives to outright dismissal

 

• if the dismissal takes place, consider whether the employee should be given the right to appeal (with any such appeal being heard, if possible, by a manager who was not involved at the dismissal stage).

 

An extreme case study

 

To give an example of this predicament, we can turn to a case study from real life. This case is called K v L (UKEATS/0014/18/JW).  The facts of the case are as follows:

 

In this case, Claimant K is a teacher. He was found to have indecent images of children on his computer, the images had been put together using a programme similar to Photoshop (known as pseudo-images).

 

K had worked at the same school for 20 years and previously had no blemishes on his record. After telling his employers about the case against him, he was suspended from work.

 

K explained that his son and his son’s friends also had access to the computer and it could have been them. He was taken to court, but the case against him was dropped. Still, due to concerns surrounding the reputation of the school, K was dismissed, even though the school’s Head of Service held that there was insufficient material upon which to conclude that the claimant was responsible for downloading the images.

 

K went on to claim unfair dismissal, but the employment tribunal rejected the claimant’s claim and held that the dismissal was fair in the circumstances.

 

K went on to the Employment Appeal Tribunal (EAT) on the grounds that the school had not given him the notice that he was at risk of being dismissed on the grounds of reputational damage and that he could not be dismissed on the basis that he might have committed the offence. The employer had to be satisfied on the balance of probabilities that he had committed the offence.

 

What did the EAT decide?

 

The tribunal believes that K’s dismissal was not handled properly, as they were not clear on the exact grounds they were dismissing K. There was insufficient evidence to prove that K had committed the offence. On the balance of probability, it was unlawful to dismiss him on this ground.

 

Reputational concerns can be treated as separate to the original case; however, in that case, the employer school must give notice to K of the ground upon which dismissal may be sought. The notice must be expressed clearly. K should be able to understand the allegation the school makes.

 

In these circumstances, the dismissal was unfair in that it relied on a ground of dismissal that was absent from the complaint and for which there was insufficient notice.

 

The decision went back to the Head of Services decision that there was not enough evidence to prove K was responsible for the indecent images, but decided to dismiss him anyway. This was seen as unfair.

 

Clearly, reputational damage was an important concern for the school given the nature of the charge and their responsibility towards children, but the intensity of the reputational damage lessened when it was indicated that there was no plan to prosecute K.

 

The full case can be read here.

 

What do we think?

 

This case is indeed of an extreme nature due to the abhorrent nature of the accusation, and the setting of a school. It goes to show that in law there are always many intertwined components that must be explored for the best decision to be made. Of course, everyone must have a fair chance to contest any decision made against them – but on the other hand employers have a responsibility to protect the reputation of their establishments for the good of all the other employees. However, in such situation, any dismissal will have to follow the correct procedure and on the correct ground. Otherwise, it is likely to be held as unlawful and unfair.

 

 

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