Take care: Allegations of abuse do not automatically make dismissal fair

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Posted in:HR and Employment|January 21, 2014 | Join the mailing list

There are five reasons for dismissing an employee which are potentially fair.  They are: conduct; capability; redundancy; breach of a statutory restriction; and some other substantial reason of a kind such as to justify the dismissal.  The
last is known as “SOSR” and there is a temptation for employers to treat any reason that isn’t one of the others as being “SOSR”.  However, the final part of the description of SOSR must not be forgotten.  The Employment Appeal Tribunal (“EAT”) has recently
reminded employers that a breakdown of trust and confidence in an employee does not necessarily establish that there is a substantial reason for the dismissal and will not automatically make a dismissal fair.  

Furthermore, in unfair dismissal cases, establishing that there was “some other substantial reason of a kind such as to justify dismissal” is not the end of the matter.  The Tribunal must then decide whether the employer
acted reasonably in treating that as a sufficient reason to dismiss.  Only then will a dismissal for that reason be fair.  In the recent case of Z v A, the reason for dismissal was the breakdown of trust and confidence in an employee due to
an allegation of child abuse.  The EAT agreed with the Employment Tribunal’s decision that the dismissal was unfair.

The Tribunal’s findings were as follows: A was a primary school caretaker and site manager.  The school was informed by the police that they were investigating an allegation that A had abused a child, in the past, before his employment there began.  A was suspended
and after about a year (but before the police investigation was completed) he was dismissed at a panel hearing of school governors.  A had not been charged by the police and he denied the allegation.  The head teacher had been told by police that the witness
statements taken in the criminal investigation did not support the allegation.  At the time of the dismissal there was no indication that A would be charged.  The governors did not suggest that A had done anything to damage the school’s trust and confidence
in him, except be the subject of the allegation.  However, the governors said that the allegation "created a serious safeguarding issue for the school and even if the employee were to be completely exonerated, the trust and confidence in him had been eroded
and there would always be an element of doubt".

The EAT emphasised that cases involving allegations of abuse will depend heavily on their facts.  It said that the unsupported suspicion that an employee is a risk to children is not
in itself a substantial reason for dismissal (our emphasis).  Where there are allegations of abuse, but no conviction, the EAT said that dismissal may generally be fair, but explained that it was not
inevitable (our emphasis).  It was clear that there is no presumption in these cases that dismissal is fair.

Further, the school’s procedure was found to have been deficient.  The Acas code of practice on disciplinary and grievance procedures does not always apply to SOSR cases.  However, the EAT was clear that a fair procedure is always required.  It said that an
employee must be given reasonable opportunity to respond to the matters which are being held against them. In this case, the EAT found that although A was aware of the criminal investigation, he was not properly made aware of the school’s concerns, nor given
reasonable opportunity in advance of the panel hearing to prepare to answer those concerns.    

The Employment Tribunal initially found that the school had failed to establish “some other substantial reason of a kind such as to justify dismissal”.  Further, even if it had, the Tribunal held that the school did not act reasonably in treating that reason
as a sufficient reason to dismiss A.  On the facts of the case, the Tribunal found that the school had not struck the correct balance between the welfare of the children and the interests of the employee and the Tribunal decided that the dismissal was unfair. 
The EAT upheld the Tribunal’s decision.

Kim Freeman-Smith, employment solicitor at Berg, commented that: “Employers who have to consider child safeguarding are placed in a very difficult position when something like this arises in relation to one of their employees.  Dismissal, while hard for the
employee, may be reasonable and lawful in the circumstances.  However, employers should not rush to judgment and action, but should first take legal advice on the particular circumstances that have arisen.”

For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact Nigel Crebbin of the Berg Employment Team on 0161 833 9211 or email him at nigelc@berg.co.uk.

Follow us at Twitter: @Berg_HR.

The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice
should be obtained before taking, or refraining from taking, any action as a result of this article.

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