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Misconduct dismissals – the importance of following a correct procedure


The EAT’s recent decision in K v L highlights the importance of following the correct procedure prior to dismissing an employee for misconduct.

K worked for L as a teacher. K was charged with a criminal offence relating to the alleged discovery of indecent images on his computer at home. K reported this to his employer. The Scottish Procurator Fiscal ultimately decided not to prosecute K. The employer subsequently sought further information about the charges from the police, but was not provided with any substantive evidence regarding the reason for the allegation.

L took disciplinary action against K for misconduct, on the basis that an allegation had been made against him (by the police) that he had downloaded the images. At the disciplinary hearing, K denied downloading the images. A decision was subsequently taken to dismiss K. In reaching that decision, the hearing manager did not uphold the allegation against K (as there was insufficient evidence that he had downloaded the images), but instead relied on:

  1. The fact that it could not “exclude the possibility” that K had downloaded the images; and
  2. The risk of reputational damage to the employer in the event that K was prosecuted for a similar offence in the future, and it came to light that the employer had chosen to continue employing him, despite these allegations.

K brought a claim for unfair dismissal against L, which was not upheld by the Employment Tribunal. K appealed to the Employment Appeal Tribunal (EAT), which determined that his dismissal was unfair, on the following basis:

  1. The EAT noted that, in order to dismiss an employee fairly, he or she must be notified of all of the potential grounds of dismissal prior to the disciplinary hearing (so as to be afforded an adequate opportunity to defend him or herself). Prior to the disciplinary hearing, K had not been informed that the risk of reputational damage to his employer was a potential ground of dismissal, and so it was not fair for L to dismiss K for that reason.
  2. In order to dismiss fairly for misconduct, an employer must have a reasonable belief that the employee was guilty of the misconduct in question. The EAT determined that, in effect, this requires the employer to decide whether the evidence it has gathered suggests that, on the balance of probabilities, the employee is guilty of misconduct. On that basis, the employer was not entitled to rely on the fact that it could not “exclude the possibility” that K was guilty of misconduct, as a reason to dismiss (as this fell far short of deciding that he was guilty of misconduct, on the balance of probabilities).

This case should serve as a reminder of the importance of clearly setting out the possible grounds on which an employee may be dismissed prior to any disciplinary hearing. In addition, employers should remember that they must demonstrate a reasonable belief (on the basis of the balance of probabilities) that the employee was guilty of the misconduct in question prior to dismissal.

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