When deciding whether a dismissal is fair or unfair, the law states that it must “be determined in accordance with equity and the substantial merits of the case”. In K v L, the Employment Appeal Tribunal (EAT) held that a school was not entitled to dismiss a teacher accused of downloading indecent images based on “unknown risks”, but rather it had to base its decision on the evidence available to it.
Basic facts
K, a teacher for 20 years, was charged with possessing indecent images on a computer after a police raid of his home, which he shared with his son. He denied that he was responsible for downloading the images.
After informing the school about the raid, he was suspended. The Crown Office and Procurator Fiscal Service (COPFS) decided that, although the matter would be kept under review, no further action would be taken.
The school then wrote to the COPFS asking for the evidence it had gathered. However, COPFS only provided a redacted copy of a summary of evidence which it said must not be released to anyone else. Indeed, the letter was not disclosed to the head teacher nor to the chair of the disciplinary hearing.
Although the latter concluded that there was insufficient evidence to find that K was responsible for downloading the images, she was also unable to exclude the possibility that he was. Given that he might be prosecuted in the future (which might damage the school’s reputation), the chair decided he should be dismissed on the basis of an irretrievable breakdown of trust and confidence.
Tribunal decision
After the tribunal rejected his unfair dismissal claim, K appealed.
Firstly, he argued that, as the letter inviting him to the disciplinary hearing did not mention the risk of reputational damage, the school could not dismiss him on that ground. Secondly, he argued that since the letter relied on misconduct and not the risk of reputational damage, the school had to decide whether or not he was guilty of downloading the images. However, it was not in a position to do this, given the lack of evidence. Thirdly, he argued that it was not open to the school to dismiss him based purely on the possibility he could have downloaded the images.
EAT decision
Upholding the appeal, the EAT noted that the complaint in the dismissal letter was based on misconduct as opposed to reputational damage. If the school intended to rely on that reason, then it should have given notice that it was a potential ground for dismissal. In addition, given that misconduct was the ground cited in the letter, K was entitled to expect his employer to decide whether misconduct had been established, which it had not have been able to do.
Secondly, the EAT held that the school was not entitled to dismiss K on the basis of “unknown risks” but rather on the basis of the evidence that was known to it. As such, the tribunal judge was wrong in law to accept that this approach was reasonable and in conformity with section 98(4) of the Employment Rights Act 1996 which states that the question of whether a dismissal is fair or unfair must “be determined in accordance with equity and the substantial merits of the case."
Instead, the reasonable approach to the standard of proof required the employer to apply the balance of probabilities test unless there were exceptional circumstances whereby a doubt in the employer’s mind could act as a sufficient ground for dismissal. In this case, there was no evidence to suggest that K would be prosecuted in the future, only a letter from the COPFS which suggested that would only happen if there was a change of circumstances.
Comment
This case is a good illustration of the fact that there are some limitations on the “band of reasonable responses” test in misconduct cases. Natural justice requires that the employee is entitled to know the ground of complaint they face so that they can be ready to address it by way of suitable evidence and supporting submissions. As the Employment Appeal Tribunal noted, the chair of the disciplinary hearing was fulfilling a quasi-judicial role and the obligation to act reasonably required her to apply the balance of probability test in assessing the evidence and deciding whether or not K had committed the act of misconduct he was charged with. It was unreasonable for her to apply “a test that in effect entitled the employer to dismiss unless all doubt as to the Claimant’s guilt had been excluded.”