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16th October 2020

Risk that employee had committed criminal offence did not make dismissal reasonable

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The Employment Appeal Tribunal has recently held, in the case of K v L, that the fact that there was a risk that a teacher had committed a serious criminal offence was insufficient in itself to make it reasonable to dismiss for that reason.  The employer should have reached a decision on the facts as to whether, on the balance of probabilities, there had been misconduct.  Furthermore, the employer should have notified the employee if it intended to rely on reputational risk as a reason for dismissal.

K was charged with possession of indecent images of children, but the decision was later taken not to prosecute him. The letter inviting K to the disciplinary hearing was based on misconduct alone, with no mention of reputational damage as a potential ground of dismissal. Following a disciplinary hearing, L concluded that there was insufficient evidence to show that K was responsible for downloading the images but it could not exclude the possibility that he was responsible.  K was dismissed and in the decision letter K said that the circumstances had resulted in an irretrievable breakdown of trust and confidence and an unacceptable level of risk of serious reputational damage. K’s unfair dismissal claim was rejected by the Employment Tribunal but the EAT allowed the appeal, substituting a finding of unfair dismissal.

This case is a reminder for employers that all grounds for potential dismissal must be set out clearly when inviting an employee to a disciplinary hearing, and the employee must be given a fair opportunity to respond.  Reputational risk secondary to misconduct is a separate ground of dismissal and raises considerations that are distinct from those in a misconduct dismissal.

For more information on any of the items discussed in this article please contact either Nick Hall or a member of our employment law team.