Failure to frame disciplinary charges correctly led to unfair dismissal

The latest EAT unfair dismissal decision involving child protection issues underlines the importance of framing disciplinary charges correctly. In this case, the failure to make it clear that the employer was concerned about reputational damage, as well as possible misconduct, was one reason why the dismissal of a school teacher has been held to be unfair.

The teacher was dismissed after the police had found indecent child images on a computer owned by him, but which was not in current use. The teacher denied saving or accessing the images, and suggested this could have been done by his son or one of his son’s friends. After an investigation, the Scottish authorities informed the school that they had decided not to prosecute, but did not share any other information.

The EAT allowed an appeal against the employment tribunal’s decision that the dismissal had been fair. The two key rulings were:

• The employer did not have a reasonable belief that the employee had been guilty of misconduct, since the disciplinary hearing had only concluded that the possibility of misconduct “could not be excluded”. In misconduct cases, for the dismissal to be fair, the employer needs to have formed a belief, on reasonable grounds, that the employee has been guilty of the misconduct alleged. While misconduct does not need to be proved to a criminal standard, the employer must still believe, on the balance of probabilities, that the misconduct has occurred (ie that it is more likely than not to have occurred).
• The employer could not rely on the risk of reputational damage to the school as an alternative reason for dismissal, since this risk had not been included as a disciplinary charge, and was not addressed in any detail during the disciplinary hearing. If an employer is to rely on the risk of reputational damage as a potentially fair reason for dismissal, it must make it clear when convening the disciplinary hearing so that the employee knows the case he or she has to meet.

In this case the EAT went on to explore whether, in these particular circumstances, the teacher could have been fairly dismissed because of the risk of reputational damage, had it been included in the disciplinary charges. It expressed the view that something more concrete would have been required to be in the public domain, rather than the mere fact that indecent images had been found on a computer belonging to the teacher. However, in this writer's view, had the employer addressed these issues explicitly in the disciplinary process, it might have made a better job of substantiating its concerns.