In the recent case of K v L, the EAT held that an employee had been unfairly dismissed because, among other things, his employer had failed to give him notice of the ground on which he was ultimately dismissed.
The Claimant, a teacher, was charged by the police after indecent images were found on a shared computer at his home. It could not be established who had downloaded these images so the Procurator Fiscal decided not to prosecute but he reserved the right to do so in the future.
The Claimant’s employer asked the Crown Office for evidence of the Claimant’s charges and received a restricted letter with all the evidence completely redacted. This letter was not shared with the dismissing manager.
The employer then took disciplinary action against the Claimant based on the allegations about his conduct and convened a disciplinary meeting. There, it was decided the Claimant should be dismissed due to an irretrievable breakdown of trust and confidence as it could not be shown that he had not downloaded the indecent images and there was a significant risk of reputational damage to the employer if the Claimant were prosecuted in the future.
Initially the Claimant submitted a claim for unfair dismissal which was rejected by the tribunal. He then appealed to the EAT.
The EAT upheld his appeal and found the dismissal to be unfair on two grounds.
Firstly, the employer had failed to initially give the employee notice of the ground on which dismissal was sought. The employee was not given notice that he could be dismissed on the ground of reputational damage that is secondary to misconduct.
Secondly, the tribunal held that it was unreasonable to dismiss an employee on the basis that there was a ‘possibility’ of misconduct or where good conduct ‘cannot be guaranteed’. Further, the prospect of the Claimant being convicted in the future was unknown and the employer should not have relied upon an unknown risk as a basis for dismissal.
This case emphasises the importance of correctly framing allegations at the outset of a disciplinary hearing and to include all potential grounds for dismissal that could be relied upon later. It also acts as a reminder that it is likely to be deemed unfair for employers to dismiss on the basis of concerns, as opposed to actual known evidence.