The impact of potential criminal activity on one’s employment is often an area where tensions arise — this month, the Employment Appeal Tribunal had to consider that matter in the (anonymized) case of K v L. K was a teacher of 20 years standing with an unblemished record.
In December 2016 his property was raided and computers seized, one of which was found to contain indecent images of children. K and his son (who lived with him) were both arrested. K was charged with a criminal offence in connection with the images, although he denied from the outset that he had downloaded any such images.
K was suspended by his employer whilst the investigation was ongoing, but ultimately a decision was taken not to take any further action against him at that time (or indeed, against his son).
The relevant authorities reserved the right to prosecute the matter in the future, which K was advised usually related to a situation where someone was charged with a further offence, such that this one might also be resurrected.
The school was concerned about what the decision not to pursue the matter meant for them, and so sought to make enquiries – but were not provided with a summary of the evidence, or indeed any other relevant information. K was thereafter invited to an investigation meeting, at which he confirmed that the computer which contained the indecent images belonged to him.
On this basis, he was invited to a disciplinary hearing, to answer the charge that he had been involved in a police investigation into illegal material of indecent child images on a computer found within his home and ‘the relevance of this to his employment as a teacher.’
At the disciplinary hearing, he again denied that he had downloaded the images, and stated that he did not know how they had got there. He made clear that he was not the only person with access to the computer, as he shared the house with his son, and his son (and his son’s friends) had access to the computer and could have downloaded the images.
The disciplinary officer concluded that there was insufficient material upon which to conclude that K was responsible for downloading the images.
However, they then decided that dismissal was still appropriate, in circumstances where they could not exclude the possibility of K having been responsible for downloading the indecent images of children and that if it was later shown that K had committed an offence involving indecent images of children, his continued employment would cause the Council serious reputational damage.
K brought a claim in the Employment Tribunal for unfair dismissal. In particular, he argued that it was unfair for his employer to have come to the view that ‘not being able to exclude the possibility’ that he had in fact committed the offence in question was sufficient reason for his dismissal.
He also argued that it was unfair for his employer to have taken into account the potential reputational damage to them when this had not formed part of the charges against him.
His claim failed in the Employment Tribunal, and he was found not to have been unfairly dismissed. However, that view was overturned on appeal. The Employment Appeal Tribunal [EAT] analysed the concept of the burden of proof and the requirement in the
Employment Rights Act that an employer acts reasonably in dismissing an employee. They reiterated that relevant facts needed to be proven on the balance of probabilities (the civil standard of proof).
The EAT, therefore, concluded that it was unreasonable to apply a test that in effect entitled the employer to dismiss unless all doubt as to K’s guilt had been excluded. Where there was insufficient material upon which to conclude that K was responsible, it was unreasonable to conclude that this was sufficient to dismiss.
As regards the second point, the EAT confirmed that it was unreasonable for the school to have taken into account a reason for dismissal which had not formed part of the charge against K.
This case is an important reminder of the clarity required when charges are formulated in disciplinary proceedings. An individual needs to know the case against them in full, and it is not appropriate for the employer to take into account matters which the employee was not given proper notice of.
It is also a clear statement that suspicion and potential misconduct, however serious, cannot be a sufficient reason, of itself, to dismiss. There has to be evidence upon which a reasonable belief can be based.
Safia Tharoo
Barrister, 40 Bedford Row, London
