Potentially unfair dismissal of school caretaker for historical child abuse allegations
An employee who has the requisite length of continuous employment has the right not to be unfairly dismissed. There are five potentially fair reasons for dismissing an employee. These include conduct, capability, redundancy, breach of a statutory restriction and some other substantial reason (SOSR). The latter is a catch-all provision encompassing a wide variety of situations that do not fall neatly within the other four potentially fair reasons for dismissal.
Some Other Substantial Reason
Over the years, the SOSR label has been held to apply to various situations. However, employers should not assume it is safe to use the SOSR label in any given situation. When it may be fair to rely on SOSR was considered in the recent case of Z v A.
Allegations of abuse
The case involved a caretaker who worked in a primary school. An allegation was made to the police that the caretaker had, some time before he was employed by the school, sexually abused a child. The school was informed of the allegation by the police. Although the head teacher considered the allegation to be malicious, the caretaker was suspended from duty.
After almost a year, the head decided to invite the caretaker to a meeting: the caretaker denied the allegation. Although the police investigation was still ongoing, the caretaker explained that he had not been charged with any offence. Following the meeting, the head recommended to the governors that the caretaker be dismissed on the grounds that the trust and confidence that she had in him as an employee had broken to the point where it was irreparable. This was “due to the serious nature of the allegation.” Two days before the disciplinary hearing, the head spoke to the police officer in charge of the investigation. She was informed that no charges had been brought against the caretaker, no view had been taken about the credibility of the accuser and that the police were still engaged in fact finding.
The disciplinary hearing went ahead before a panel of governors, who decided that the caretaker should be dismissed. The reason given for the dismissal was SOSR. The governors felt that the school’s trust and confidence in the caretaker had broken down and 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 caretaker brought a claim for unfair dismissal against the school.
Employment Tribunal decisions
The Employment Tribunal recognised the difficulty for the school in handling the situation. However, it found that a bare accusation by itself – even of something so serious – could not by itself amount to SOSR justifying dismissal. Otherwise, the consequences would be that there would be no reason to investigate any allegation and the mere fact of an allegation, however wild or frivolous, would be enough to dismiss.
Ultimately, it was held that the dismissal was unfair as the school had failed to show a SOSR for the dismissal. Even if that finding was wrong, the tribunal found that the dismissal was procedurally unfair, as such an allegation does not allow an employer to proceed straight to dismissal.
The school appealed the decision and argued that an unsupported suspicion that the caretaker posed a risk to children should in itself have provided a substantial reason for dismissal.
Employment Appeal Tribunal
The Employment Appeal Tribunal rejected the school’s argument and found that, although previous case law suggests that an employer’s decision to dismiss, where there has been an allegation (but no conviction) of child abuse may generally be fair, this was not inevitable. Instead, each case depends on its own facts.
In summary, the case highlights and reinforces the point that serious allegations do not always lead to dismissal. If you are an employer and you are faced with a similar situation, you should take care not to dismiss as a knee-jerk reaction:
- Consider the facts carefully before deciding how to proceed;
- Think about how serious the allegations are and whether they are considered by the police or other authority as posing a threat to the people that the employee works alongside;
- Consider whether you can you make a judgement on the validity of the allegations and whether any internal investigation can realistically be carried out during the course of the police investigation;
- Finally, always ensure that you follow a fair procedure when contemplating dismissal for SOSR.
For more information on potentially unfair dismissal or how the issues in this case might affect you or your business, contact our Employment Law team or call us on 0117 904 6000.
Posted on Mar 11th, 2014 by Lyons Davidson