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Flaws in employer’s disciplinary process lead to unfair dismissal

Gateley Legal

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Issue

For a fair disciplinary process, the employee has to be clearly told what allegations are to be answered. It follows that any subsequent dismissal must be on those grounds following a reasonable finding based on the evidence that the employee is more likely than not guilty of the misconduct in question.  The case of K v L highlighted the potential risks that a dismissal will be found unfair where this process is not followed.

Facts

A teacher was arrested for possession of indecent images of children. However as it could not be ascertained who downloaded the images he was not prosecuted, although the Police reserved the right to do so later. The school was informed and he was called to a disciplinary hearing regarding the downloading allegations. He was dismissed on grounds that there had been a breakdown of trust and confidence even though there was no investigation to establish his guilt. 

Decision

The dismissal was unfair. The hearing concerned allegations of misconduct yet the school had failed to take any steps to establish that he was guilty. The legal test was not satisfied where misconduct was just a possibility. The school could not rely either on the risk of reputational damage as another grounds for dismissal as this had not been put to him and the risk of a future conviction was in the circumstances an unknown factor. 

Key point

It may be tempting to invite the employee to a hearing to consider just one central allegation. However for the employer tactically it is better to have several specific allegations. Even if some of these are not upheld it would demonstrate that reasonable and fair consideration has been given to the allegations. If the evidence is not clear then it may be appropriate to consider dismissal on SOSR grounds rather than misconduct but that must be made clear to the employee.

More information

To discuss any points raised in this article or any other issues, please contact our expert listed below.

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