Thu 24 Sep 2020

Reputational damage: why it is essential to be clear about allegations that could lead to dismissal

The case highlights the importance of clear information being provided during a disciplinary procedure and the difficulties inherent in dismissing because of concerns about reputational damage.     

Many in the care or education sector will understand why an employer may not be prepared to continue employing an employee charged with possession of indecent images of children.  But the case of K v L highlights how difficult achieving a fair dismissal can be.

The claimant was charged (but not subsequently prosecuted) with possession of indecent images of children - the images were downloaded onto a home computer to which his son, who was also charged, also had access.  He was a teacher with 20 years of unblemished service.  The employer obtained a summary of the evidence against the claimant from the Crown, but was not permitted to release it to anyone else, including the decision maker in the subsequently convened disciplinary hearing. 

The disciplinary hearing was convened on the basis it was to consider misconduct. It did not mention the employer's concerns about risk of reputational damage should they continue to employ the claimant.  The dismissing officer found there was not enough evidence to conclude that the clamant had downloaded the images, but she dismissed him anyway.  This was on the basis that she could not exclude the claimant being responsible for downloading the images, risk assessments had concluded it presented an unacceptable risk to children to return him to his post and she believed the employer risked serious reputational damage should they continue to employ the claimant and he was subsequently found to have committed a similar offence.

A claim for unfair dismissal was rejected when it came before an Employment Tribunal.  However the claimant lodged an appeal on the basis that the school had not mentioned the risk of reputational damage as being a potential ground for dismissal and, if the dismissal was in fact for misconduct, the employer should not dismiss on the basis of being unable to exclude the possibility that misconduct may have occurred.  

The EAT agreed with the claimant, holding that the letter inviting the claimant to the disciplinary hearing referenced misconduct and gave no notice of reputational damage as a potential reason for dismissal.  With regard to misconduct as the reason for dismissal, an employer is not entitled to dismiss an employee on the basis they cannot exclude the possibility of the employee having committed the misconduct - it must have "reasonable suspicion amounting to a belief that the employee is guilty of the conduct in question". 

Further, the EAT concluded that even if the claimant had been given proper notice of the potential for dismissal arising from the risk of reputational damage to the school, the dismissal would in this case still not have been fair.  There was no detailed evidence available to the employer about the nature or seriousness of the images, nor why the Procurator Fiscal had decided not to prosecute. There was at the time of the dismissal no press interest in the case and no indication that would change, nor had the claimant acted in a way that could lead to a breach of trust and confidence with the employer.  These matters distinguished it from the type of case identified by the EAT and Court of Appeal in Leach v The Office of Communications (OFCOM) where an employer could dismiss fairly for some other substantial reason when continued employment risked reputational damage. 

This case can also be contrasted with Lafferty v Nuffield Health.  This was another situation where an employee had been charged but no further proceedings had taken place at the time of the dismissal - on this occasion it was a hospital porter with 20 years unblemished service whose role involved transporting anaesthetised patients to and from theatre.  He had been charged with assault to injure with intention to rape relating to an incident that occurred away from the workplace.  He was found to have been fairly dismissed following an investigation and disciplinary that focussed on reputational damage and not Mr Lafferty's guilt or innocence of the charges.  The employer was a not for profit charity and was conscious of the scrutiny charities come under in these circumstances, had considered alternatives to dismissal and had involved managers who had knowledge of the consequences of failing to act to protect reputation in other charities. 

The allegations in both these cases are serious, and the concerns of the employers can be easily understood.  However what really sets the two cases apart is the focus of the employer on the reason for the dismissal.  In L v K the procedure lacked focus and in consequence the employee was not given appropriate notice of what turned out to be a key issue - the risk of reputational damage to the employer - and consequently he was not given the opportunity to address the concerns of the employer.  This lack of focus also meant the employer could not properly analyse whether the employee being charged created a genuine reputational risk to which dismissal was a reasonable response.

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