The Claimant was charged by the Police with possession of indecent images of children under s 52A of the Civic Government (Scotland) Act 1982. The Procurator Fiscal reviewed the evidence and decided not to prosecute. The Claimant was a schoolteacher. His employers convened a disciplinary meeting and dismissed him. The Crown had provided the employer with a summary of the evidence but would not permit it to be released to anyone else. It was withheld from the decision maker. The Claimant began proceedings for unfair dismissal. His claim was rejected by the Employment Judge. He argued on appeal that the complaint issued by the school did not mention the risk of reputational damage and as a result it was not open to dismiss him on that ground. He also argued that since the complaint was based on misconduct and not the risk of reputational damage. In that situation it was necessary to decide whether or not he was guilty of downloading the images and on the state of the evidence they were not in a position to decide he had. He further argued that it was not open to the employer to dismiss him based on the possibility he had downloaded the images.
Held (1) that the complaint in the dismissal letter was based on misconduct and gave no notice that reputational damage was a potential ground of dismissal; and in such a circumstance the employer was bound to make a decision on whether the misconduct had been established and had it done so it was bound to conclude that misconduct had not been established; (2) that an employer was not entitled to dismiss an employee on the basis that misconduct was a possibility that could not be excluded or where there was no guarantee of his good conduct (s 98(2) and (4) Employment Relations Act 1994); and (3) that the reasonable approach to the standard of proof was to apply the balance of probabilities; where the employer was not in a position to make a judgement about conduct collateral to reputational damage as the ground of dismissal, the employer required to be satisfied that there was substantial evidence that was open to scrutiny and challenge in support of the underlying conduct and this test was not satisfied in the present case; and appeal allowed.
[2020] UKEAT 0014 – 18 – 2404
Bailii
England and Wales
Employment
Updated: 13 December 2021; Ref: scu.653914