Dismissals – the devil is in the detail

A recent Employment Appeal Tribunal (EAT) case highlights the importance of employers correctly framing disciplinary charges to ensure that any resulting dismissal is fair.

In K v L, the EAT held that a school teacher’s dismissal for possessing indecent images of children was unfair because the employer had not specified reputational damage as a potential ground for dismissal.

K v L [2020] IRLR 916 EAT – Case background

The claimant, a school teacher with 20 years of unblemished service, was charged with possession of indecent images of children. The claimant shared his home with his son, who also had access to the computer on which the images were downloaded, and both were questioned by the police. The claimant denied responsibility for downloading the images that were found and explained that his son and many of his son’s friends had access to the computer.

The claimant was charged with possession of indecent images of children but was not subsequently prosecuted.

The police had provided the employer with a summary of the evidence but would not permit it to be released to anyone else, including the decision-maker. The employer began the dismissal process and issued an invitation to the disciplinary hearing which described the complaint against him as “being involved in a police investigation” into child images.

The employer ultimately decided to dismiss him. While their findings concluded that there was insufficient evidence that he was responsible for downloading the images, they dismissed on the grounds of:

• the prosecutor fiscal had reserved the right to prosecute against him in the future
• the employer could not exclude the possibility that he was responsible for the indecent images
• his return to teaching “would present an unacceptable risk to children”
• the employer is a high-profile public authority and would suffer serious reputational damage if the charges became public knowledge.

The claimant brought a claim for unfair dismissal which was dismissed by the employment tribunal (ET) so he appealed to the EAT who agreed that his dismissal was unfair on the following reasons:

• the letter inviting the claimant to the disciplinary hearing referenced misconduct and gave no notice of reputational damage as a potential reason for dismissal.  The EAT stated that any allegations must be clearly addressed so that an employee can adequately prepare themselves to answer the case
• with regard to misconduct as the reason for dismissal, an employer cannot dismiss an employee on the basis they cannot exclude the possibility of the employee has committed the misconduct – it must have “reasonable suspicion amounting to a belief that the employee is guilty of the conduct in question”
• even if the correct notice had been given, in relation to potential dismissal arising from the risk of reputational damage, the dismissal would still be unfair because there was no detailed evidence available to the employer, the employer did not know why the decision was taken not to prosecute, there was no press interest at the time of the case, and the claimant had 20 years of unblemished service.

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We know all too well from time to time, employers find themselves in a position where they would simply rather dismiss an employee on the spot and be done with it. However, the K v L case highlights the importance of following a full and fair process and ensuring consistency from start to finish.

To reiterate, employers must ensure that the letter inviting an employee to a disciplinary hearing mentions all the allegations, the hearing discusses all the allegations mentioned in the letter and any outcome letter with a warning/dismissal is consistent with what the allegations were in the invitation letter.

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