To dismiss or not?

By Louise Carr | 20 October 2021

Recently I’ve been asked to advise clients in both local authority and education settings about the fairness of dismissing employees who are facing criminal investigations where allegations of sexual impropriety with children or young people are at the heart of the police investigation. The situation is generally much clearer for an employer when an employee is found guilty of an offence, but what can an organisation do if it wants to take steps before the criminal process concludes or, alternatively, where either no charges have been brought or the employee is acquitted?

Such situations can be complex and, in terms of any subsequent legal adjudication, almost always extremely fact sensitive. Unfortunately, there is no easy solution. The specific circumstances must be carefully investigated and scrutinised by employers if they propose to dismiss.

An important distinction to remember is that an employer applies the less stringent burden of proof in reaching disciplinary decisions; is it more likely than not that the employee is guilty of the alleged misconduct? The test is a much tougher one in the criminal system where guilt has to be established beyond reasonable doubt. So, an employee acquitted of a criminal offence can still be lawfully dismissed.

It may be the case that given the nature of the criminal allegation, it could be fairly decided that an individual is guilty of gross misconduct if there is sufficient evidence to reasonably decide they are guilty of the criminal offence. This assessment should be undertaken following a thorough investigation and having regard for the terms of the organisation’s disciplinary policy.

By way of contrast, in the recent decision of ‘L versus K’, a teacher was subject to a criminal investigation following the discovery of indecent images on a computer in his home. The teacher admitted that those images had been stored on the machine, however, he was not the only one with access to the computer. The employee here had not been charged with an offence but the right to prosecute him had been reserved. While this case very much turns on its own facts, the dismissal was found to be fair for SOSR. The employer dismissed not because it was satisfied that the employee was guilty of the offence but on the basis it could no longer place trust and confidence in him due to the real possibility that he was the offender.

In one case the employee was in a senior role and while he did not work directly with children, he was involved in child protection issues. The employee was dismissed following police disclosures that he was believed to have been involved in child abuse and posed a risk to children. Despite the fact that The employee was acquitted of the criminal charges, the organisation contended that their reputation was at risk and that there had been a breakdown in trust and confidence. The Court of Appeal endorsed the fairness of the dismissal for SOSR.

The case of ‘Z v A; A v Z’ concerned a primary school caretaker and site manager who faced an historic allegation of child abuse. The employee was suspended pending the outcome of the criminal investigation – he denied the allegations and wasn’t charged with any offence. Prior to the disciplinary hearing the headteacher was advised by the police that none of the witness evidence supported the allegation. Despite that fact, the governing body made the decision to dismiss maintaining that the relationship of trust and confidence had broken down. The dismissal for SOSR was found to have been unfair.

If your employee has been charged with or convicted of any criminal offence, then it is vital to consider the relevant provision of the Acas Statutory Code of Practice on Discipline and Grievance Procedures which states that: ‘This is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers.’

So the lesson here is, step back, look carefully at the facts and if in doubt, take advice.

Louise Carr is a partner with Bexley Beaumont

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