UK: dismissal for possibility that an employee had committed a serious criminal offence was unfair

The case of K v L highlights the care needed when considering dismissal of an employee charged with committing a serious criminal offence. There is no hard and fast rule that an employer must wait until criminal proceedings have concluded before instigating disciplinary proceedings, and disciplinary proceedings may remain appropriate even if the charges are dropped;  it will all depend on the facts (including the likely delay pending criminal proceedings and the feasibility of paid suspension - see earlier cases summarised here).  However, it is critical that the employer conducts its own investigation into the issues and is clear up front as to whether the disciplinary charge is misconduct and/or reputational risk.  Dismissal will only be within the band of reasonable responses for misconduct if the employer itself is satisfied on the balance of probabilities that the employee did commit the offence - inability to be certain of innocence will not be enough.  If dismissal is considered on the basis of risk to reputation, the employee should be sufficiently notified that that is part of the complaint against them so that they have the opportunity to present all necessary arguments and evidence in response to that.

In this case a teacher, who lived with his son, had been charged with possession of indecent images of children but not prosecuted.  He had admitted that a computer in his home was found to contain indecent images but denied that he was responsible for downloading them. The school found that there was insufficient evidence to conclude that the teacher was responsible for the images but dismissed him on the basis that allowing him to return would pose an unacceptable risk to children and would cause serious reputational damage to the school if he was subsequently found guilty of this kind of offence.

The EAT ruled that his dismissal was unfair: he had only been charged with misconduct and the employer had been unable to conclude that he was guilty on the balance of probabilities;  a possibility of guilt was insufficient.  The issue of reputational risk had not been put to the employee and therefore could not justify dismissal.  However, even had the charge been put, the school could not have reasonably dismissed on that basis as it had no information about the nature or seriousness of the images nor as to the reasons why no prosecution was brought, there was no reason to expect a change in the decision not to prosecute, and there was no existing or expected press interest.