Valerie Bond
Posted on 8 Sep 2020

Unfair Dismissal and Criminal Investigations

The Employment Appeal Tribunal ('EAT') recently considered the case of K v L [2020] 4 WLUK 544. It assessed whether it was fair to dismiss an employee who had been accused of possessing a computer with indecent child images, but had not been prosecuted. It was held that the dismissal, in this case, had been unfair.

K v L [2020] 4 WLUK 544

The Claimant was a teacher who had been charged after police found a shared computer at his home with indecent child images. However, the Claimant was not prosecuted, because the identity of the individual who had downloaded the images could not be established. Instead, the right was reserved to prosecute in the future.

The school who employed the Claimant made enquires to the Crown Office in relation to the charges made against its employee. It received a restricted letter with a summary of evidence, which was not permitted to be shared with anyone, including the manager who eventually made the decision to dismiss the Claimant.

The Claimant was later dismissed, following a disciplinary meeting, due to an irretrievable breakdown of trust and confidence. The risk of reputational damage was never mentioned to the Claimant as a ground for dismissal.

The Claimant brought a claim for unfair dismissal, which the Employment Tribunal rejected.

The EAT, however, found that the dismissal was unfair. This was on two grounds; the first being that the Claimant had not been given sufficient notice of the reason for dismissal which was now being relied upon, that being the risk to reputation. The second ground was that it was not reasonable to dismiss based on a concern that the Claimant merely may have committed the offence of downloading the indecent images. Lord Hoffman argued that the employer should have applied the balance of probability to the circumstances. The risk of a future conviction was unknown and so should not have been relied upon as the basis for dismissal. There was no evidence that the Claimant had downloaded the images and so the school should not have used this as a reason to dismiss him.

What this means for Employers

It is important to ensure that the correct policies and procedures are in place to ensure that any dismissal made is fair and disciplinary meetings are carried out correctly. It can be difficult when there is an external investigation on-going, as employers can be swept up by those external factors. However, where an employee is under criminal investigation for an issue which occurred outside of work, it is not appropriate to dismiss the employee without sufficient evidence or investigation into the allegations. Furthermore, it is important that any employee being faced with a disciplinary hearing knows all the allegations raised against them so that they can properly prepare a defence.

It may be possible to argue that risk of reputational damage can provide a justification for a dismissal, even where no criminal charges are proved. However, it is important to consider the circumstances of each case individually. There may be instances where certain charges could have a greater impact on the employer than others, such as a driver for a company charged with a serious driving offence.

It is also important to assess the employer's current position. A large organisation may be able to suspend an employee on full pay until the criminal investigation is complete. However, a smaller business may not have the resources to do this. The Employment Tribunal will consider all these factors when deciding whether or not a dismissal was made fairly.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Valerie Bond to discuss any issues you are facing.