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22 January 2014

Unfair dismissal following allegations of child abuse

In this case, the Employment Appeal Tribunal (EAT) considered whether the dismissal of a school caretaker following unproven allegations of historical child abuse was fair.  Oliver Brabbins looks at the difficult issues arising in this case.

Facts

The case concerned the dismissal of A, who was employed as a primary school caretaker and site manager.  The school had been informed by police of an allegation that some years previously, prior to his employment at the school, A had sexually abused a child.  The school’s head teacher decided to suspend A.

After around a year, whilst police investigations were still ongoing, the head teacher recommended to school governors that A should be dismissed on the ground that trust and confidence had broken down and was irreparable due to the very serious nature of the allegations.  A was invited to a hearing before a panel of governors.

Two days before the scheduled hearing, the police officer in charge of the investigation indicated to the head that the witness evidence did not support the allegations.  Nevertheless, the panel decided to dismiss A on the basis that a serious safeguarding issue had arisen.  They concluded that just by being the subject of such serious allegations, even though they were not proven, there was a risk of serious damage to parents’ and public confidence in the school.

The decision to dismiss A was upheld following an internal appeal.  He brought a claim for unfair dismissal, which the school defended on the basis that his dismissal was fair for “some other substantial reason”.

An employment tribunal upheld A’s claim, finding that a mere accusation, even of something serious, could not by itself amount to “some other substantial reason” (SOSR) entitling the employer to proceed straight to dismissal.  In addition, in order to establish a fair dismissal for SOSR the employer must demonstrate that it acted reasonably in all the circumstances in treating the reason as a sufficient reason for dismissing A.

In the tribunal’s view, the school had not achieved the correct balance between the welfare of the children at the school and the interests of the employee.  The school appealed against the tribunal’s decision.

Decision

The Employment Appeal Tribunal (EAT) upheld the tribunal’s decision, rejecting the school’s argument that an unsupported suspicion that A posed a risk to children should in itself have provided a substantial reason for dismissal.  Whilst 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, the EAT said that this is not inevitable.

In this case, the scant procedure applied by the school meant that there was no reason, in the EAT’s view, to interfere with the tribunal’s reasoning.  It noted in particular that the school had relied on documents relating to a meeting held almost a year previously, which the employee had not had an opportunity to consider until the hearing itself.

Comment

This case was acknowledged by the EAT as involving one of the most difficult issues of balance which an employment tribunal has to perform: between the employer’s duties towards the children under its care, and its responsibilities towards its employees.

Whilst previous decisions relating to unproven allegations of sexual abuse have found that an employer’s decision to dismiss was fair, as in all cases involving SOSR they are highly depended on the facts.  One factor that is likely to be relevant is whether the allegations are considered by the police or other authority as indicative that the individual might pose a continuing threat to children.  As highlighted by the EAT, it is of particular importance to follow a fair and thorough procedure in such finely balanced cases.

A copy of the EAT judgment is available here.

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