An employee who was dismissed as a result of having been charged with a criminal offence was unfairly dismissed. The employer had invited him to attend a disciplinary hearing on a matter of misconduct, but was unable to decide whether the employee had committed the offence. Finding that they were unable to rule out the possibility that he had, the employer then dismissed him for a different reason – the risk of reputational damage if it became known that it had continued to employ him. The dismissal was both procedurally and substantively unfair.
During a disciplinary process and when inviting an employee to attend a disciplinary hearing, employers should clearly set out the concerns they have and the facts on which they intend to rely. It is not necessarily fatal to the process if you do not use the correct legal terminology (for example, between conduct and capability), as long as the underlying facts and the issues which have arisen are set out in sufficient detail to enable the employee to respond to them.
When deciding a question of fact, employers must have a reasonable belief on the balance of probabilities that something happened in order to rely on it to support a dismissal – merely saying there’s not enough evidence to decide but you cannot rule it out is insufficient.
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The anonymous claimant, K, was a teacher. He was charged with possession of indecent images after a computer at the home he shared with his son was found to contain downloaded pseudo images of children, and was suspended from work pending an investigation. He admitted that the images had been found, but denied being responsible for their presence. The public prosecutor confirmed in writing that it did not intend to proceed with the charges against him.
In the course of the employer’s investigation, the employer (L) asked the Crown for details of the evidence. A single paragraph summary was provided, but only on the condition it would not be disclosed to anyone else, including the decision maker. K was dismissed following a disciplinary meeting on the grounds that although K denied the offence, and the prosecution had decided not to proceed with the charge, L could not exclude the possibility that he had committed the act. Secondly, L was concerned about the risk to its reputation if K were to be accused or found guilty of another offence in the future and it became known that L had not dismissed him at this point.
K brought an unsuccessful unfair dismissal claim and then appealed to the Employment Appeal Tribunal.
The EAT held that reputational risk could justify a dismissal in some circumstances, but not here. L’s letter to K inviting him to the disciplinary hearing stated that it was to consider misconduct (whether he had downloaded the images), not the risk of damage to L’s reputation by association with K. These were different issues and required different responses from K. Therefore, the dismissal was procedurally unfair.
The decision maker at the disciplinary hearing had not been able to decide whether he had or had not committed the offence, only that she could not “exclude the possibility” that he had. The EAT could see no reason why the decision maker at an internal hearing should not be bound by the same principles as a court, where, “if a legal rule requires a fact to be proved… a judge or jury must decide whether or not it happened. There is not room for a finding that it might have happened…. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it… the fact is treated as not having happened.” The reasonable approach to proof was to apply the balance of probabilities test, which in this case would have meant that no finding of misconduct should be made.
Since K was not being prosecuted for these charges (and the employer knew that), the EAT said the only risk to L’s reputation would arise if there was an allegation of a future act by K which would reopen the present matter. Since L should have found that the misconduct did not happen on the balance of probabilities, there were no good grounds to believe that any future act was likely to occur.