Careful drafting of paperwork in disciplinary procedures is important, as a recent case showed that dismissal based on a risk that a teacher might have downloaded indecent child images on his computer and associated reputational risks, was unfair.
The Employment Appeal Tribunal (EAT) held that, whilst an employer's concerns relating to reputational damage can constitute a fair reason for dismissal, this must be expressly specified as a disciplinary allegation. Poor drafting and presentation of the case on this occasion, led to a finding of unfair dismissal. The EAT also considered whether an unknown risk could be relied upon as a basis for dismissal.
The Case - K v L
A teacher in Scotland faced criminal charges after police found indecent images of children on a shared computer at his home. The teacher admitted that the computer was his and that it contained the images, but denied downloading them or even knowing that they were there. As the police were unable to establish who had downloaded the images, the teacher was not prosecuted, but the right to prosecute in the future was reserved.
The school followed its internal processes and dismissed the teacher, basing the disciplinary allegations around his involvement in the criminal investigation. The allegations did not refer directly to the school's concerns over reputational damage.
The school dismissed the teacher because of a breakdown of trust and confidence, concerned that it could not be shown that he had not downloaded the images. The school was concerned this created an "unacceptable risk to children", and risk of reputational damage to the school if he were to be accused or found guilty of a similar offence in future.
The EAT held the dismissal was unfair.
Why Was the Dismissal Unfair?
Reputational damage can in some cases justify a fair dismissal. However, concerns regarding reputation were not specified as disciplinary allegations. Reputational damage should have been specified as separate to the alleged misconduct in this case and should be a separate ground for dismissal. The teacher should have been informed of all the grounds on which his dismissal could have been based.
The EAT also held it was unreasonable to dismiss on the basis of a concern the teacher might have committed the offence, based on the known evidence. There were no good grounds for the school to believe that a future act was likely to occur, and so a dismissal on the basis of this unknown risk of a future conviction could not be fairly justified.
This decision serves as a reminder to schools of the importance of careful drafting of the invitation to attend a disciplinary hearing. This document should contain details of all the allegations which may subsequently be relied upon in reaching a disciplinary decision. Reputational concerns are genuine and valid; care should be taken to frame allegations correctly and it should be made clear that dismissal may be an option.
Employers should also, where possible, reach a decision in relation to each allegation on the evidence available and should not decide upon matters on the basis of unknown risk. To support any disciplinary allegation, employers should have a positive and reasonable belief on the balance of probabilities, that the allegation is upheld. Disciplinary outcomes based on 'a possibility' are unlikely to carry any weight. This was a salutary reminder of the importance of proper drafting.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.