Dismissal Based on Allegation of Historical Sexual Abuse Unfair
The dismissal of a caretaker for some other substantial reason, based on police information that an allegation had been made against him of historical sexual abuse outside his employment, was unfair.
In Z v A, A was a primary school caretaker. In April 2010 the school was informed by police that an allegation had been made that he had sexually abused a child some years before. The accuser made a formal statement confirming the allegations. Although initially concerned that the allegation was malicious, A was suspended. After a year, during which police investigations continued, the head teacher called A to a meeting. A denied the allegations and said he had not been charged with an offence. However, the head recommended to the governors that he be dismissed on the ground that trust and confidence had broken down, due to the very serious nature of the allegations. A was invited to a disciplinary hearing.
Two days before the hearing the head spoke to the police and was informed that none of the witnesses interviewed supported the allegation. Whilst the police were taking no view about the credibility of the accuser, it appeared at that stage that no charges were going to be brought. A was dismissed at the hearing. The employer considered that the allegation created a serious safeguarding issue and even if he was exonerated trust and confidence had been eroded and there would always be an element of doubt. The matter could seriously damage the confidence the parents and public had in the school.
A claimed unfair dismissal. The employer argued that it had some other substantial reason for dismissal (“SOSR”) and the dismissal was fair. The EAT upheld the tribunal’s decision that the dismissal was unfair. A bare accusation, even of something serious, cannot by itself amount to SOSR. An employer is not entitled to take an uncritical view of information disclosed and must carry out its own enquiries to test the disclosed information. There is no presumption that an employer’s decision to dismiss where there has been an allegation, but no conviction, of child abuse is fair. In addition, the scant procedure followed by the school when dismissing meant the dismissal was unfair.
As the EAT recognised in this case, unsubstantiated allegations of sexual abuse give rise to one of the most difficult issues of balance which an employment tribunal has to perform and is particularly difficult where the employer is caring for children. Employers in such a situation will want to dismiss in order to remove any risk to the children in their care, but they also have a responsibility to their employee to act fairly. Employers faced with a similar problem should make sure that they carry out their own investigation to test the credibility of the allegations before coming to a decision to dismiss. In this case, the fact that none of the witnesses interviewed by the police supported the allegation and that charges were unlikely to be brought were factors that ought to have been taken into account.
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