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Thursday, 13 March 2014 15:55

Beware of basing dismissals on unproven allegations of abuse.

Employers should beware of basing dismissals on unproven allegations of abuse.
The Employment Appeal Tribunal has held the dismissal of a school caretaker for historical unproven sex abuse allegations was unfair.
The employee, in this case, was employed as a primary school caretaker and site manager. The police informed the school that an allegation had been made that he had, some time ago, sexually abused a child. The allegation dated back to a time before his employment at the school commenced and did not relate to children at the school. The accuser made a formal statement confirming the allegations.
The head teacher was initially concerned that the allegation was malicious but decided to suspend him. About a year later he was called to a meeting with the head teacher. He denied the allegations and explained that he had not been charged with any offence. At that time police investigations were ongoing.
The head teacher recommended to the school governors that he be dismissed ‘due to the very serious nature of the allegations’. A hearing was arranged and two days before the hearing it transpired that none of the witness statements taken by the police supported the allegation and it appeared that no charges were going to be brought against the caretaker.
At the hearing the caretaker was dismissed. The governors took the view that the allegation ‘created a serious safeguarding issue for the school and even if the employee were to be completely exonerated, the trust and confidence in him had been eroded and there would always be an element of doubt’. The governors were concerned that the matter could seriously damage the confidence that parents and the public had in the school. At an internal appeal the decision was upheld.
The caretaker subsequently succeeded in a claim for unfair dismissal. The tribunal said that a bare accusation, even of something serious, could not by itself amount to some other substantial reason for dismissing an employee. In any event, it said, the school did not act reasonably in all the circumstances in treating that reason as a sufficient reason for dismissing the employee. The tribunal said that in deciding whether relying on a mere accusation was sufficient to justify dismissal, it was necessary to strike a balance between the welfare of the children at the school and the interests of the employee. In this case, it said, the school had got it wrong.
The Employment Appeal Tribunal agreed. It said that where an employer learns of unsubstantiated allegations of abuse relating to an employee, it must not take an uncritical view of the information disclosed to them. It should carry out its own enquiries to test the information which has been disclosed. It should also follow a fair dismissal procedure even if it believes there has been a breakdown in trust and confidence. The procedure followed by the school in dismissing the caretaker, it said, had been inadequate.
The Employment Appeal Tribunal acknowledged that an employer’s decision to dismiss purely on the basis of an unproven allegation of abuse may be fair but said that this is not inevitable. A tribunal, it said, must consider whether there was a sufficient reason for dismissal. 
The Employment Appeal Tribunal also acknowledged that unsubstantiated allegations of sexual abuse, which are given no additional force by the police, give rise to one of the most difficult issues of balance which a tribunal has to perform, particularly where the employer is caring for children. However, it warned that whilst the duty of such an employer is first and foremost to those children, that does not remove its responsibility to its employees.
Case reference: Z v A
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