18 December 2013 #Employment
The Employment Appeal Tribunal last week upheld the Tribunal’s finding that a school caretaker had been unfairly dismissed following an allegation of sexual abuse (Z v A UKEAT/0203/13/SM).
The caretaker worked for a primary school. In March 2010 an allegation was made to the police that he had, some time before his employment began, sexually abused a child. The police subsequently informed the school, and the head teacher suspended the caretaker. The caretaker was suspended for nearly a year, although it is unclear what investigations if any were undertaken during this time.
The head teacher then decided to bring matters to a head. She invited the caretaker to a meeting, at which he denied the allegations and confirmed that he had not been charged with any offence. The head teacher was also advised by the police that the witnesses provided by the accuser had not supported the accusation, and that an analysis of the accuser should be completed shortly. Nonetheless, a governor’s hearing with the caretaker was held which resulted in his dismissal on the basis that the school’s trust and confidence in him had broken down and that even if he “were to be completely exonerated...there would always be an element of doubt”.
The caretaker appealed against his dismissal, but this was rejected. He subsequently brought a claim of unfair dismissal against the school.
Employment Tribunal’s finding
The Tribunal recognised the difficulty for the school in seeking to deal fairly with this matter as the school needed to consider the welfare of the children. However, the Tribunal was critical of the school for dismissing the caretaker on an accusation leading to no more than an unsupported suspicion that he was a risk to children, and without any authoritative evidence or opinion to support it. It concluded that this did not justify the caretaker’s dismissal: “A bare accusation by itself, even of something so serious, cannot...amount by itself to a substantial reason justifying a dismissal. If it were otherwise ... the mere fact of an allegation, however wild or frivolous, would be enough to dismiss.”
The Tribunal also considered that the procedures followed by the school were not within the band of reasonableness. In particular, the Tribunal noted that if it was the case that the school decided to dismiss irrespective of the police investigations, no reasonable employer would have waited 14 months to do it. Further, the school failed to make further enquires with the police regarding their investigations when the caretaker appealed.
Conclusion of the Employment Appeal Tribunal
The EAT agreed with the Tribunal’s finding that the caretaker had been unfairly dismissed. In doing so, it accepted that unsubstantiated allegations of sex abuse put an employer in a difficult position. However, it concluded that whilst the duty of an employer concerned with serving children is first and foremost to those children, that does not remove its responsibility to its employees.
It is worth noting that every case is likely to turn upon its own facts. However, to help to avoid claims of unfair dismissal, employers should ensure that they undertake a proper investigation into any allegations and consider whether the evidence suggests that it is reasonable to dismiss in the circumstances.