How should a school deal with historic (unsubstantiated) allegations of child abuse levelled against an employee? Is dismissal appropriate in the circumstances? Bedford employment solicitor Andrew Buckley gives his view.
This is dilemma that faced the Employment Appeal Tribunal in the anonymised case of A v Z. The facts were these:
- A was a school caretaker in a primary school that had over 200 pupils.
- In March 2010, an accuser made a complaint to the police that (in the words of the law report) ‘some time ago’ A had abused a child. The complaint was reported to the school (Z) in April 2010 and A was suspended on full pay.
- A series of strategy meetings followed, during which time it was established that whilst a statement to the police had been made by the accuser, the witnesses that the accuser had named did not corroborate the allegation. The police also indicated to the headteacher of Z school that while the allegation was ‘believable’, they had ‘no view as to the credibility of the accuser’.
- No prosecution occurred (although no formal decision about this had been made by the police). After A had been suspended for a year, he was brought before the governing body of the school in order to determine what should happen to him. The governing body decided that ‘trust and confidence’ in the employment relationship had broken down, even though A had done nothing to forfeit trust and confidence other than being the subject of an accusation. The governors hearing the case decided A should be dismissed. The ground for dismissal – Some Other Substantial Reason (SOSR) – was based upon the loss of trust and confidence.
- A appealed the decision to dismiss him and was unsuccessful.
- A brought proceedings in the Employment Tribunal and obtained a finding of unfair dismissal with compensation set at £5,155.52. The school appealed to the EAT.
- The EAT dismissed the appeal (as well as the employee’s appeal against the level of damages).
The EAT Judge, Mr Justice Langstaff, emphasised the wording of s.98 of the Employment Rights Act 1996…that there must be Some Other Substantial Reason of a kind justifying dismissal.
The SOSR ground for dismissal has been used in many different circumstances. Examples might include dismissal where an employer has a part time employee and the employer needs someone full time, or where the relationship between the employee and fellow employees has broken down.
However, the case of A v Z goes to show the difficulty in relying upon a breakdown of trust and confidence as a ground for dismissal. Tribunals are suspicious of this ground because employers sometimes try to use it to escape the rigours of following a conduct or capability procedure.
One cannot help but feel sorry for the school, though. They had an employee whom they did not feel they could allow to be present in the school because of their duty to protect the children in their care. Presumably they could not afford for him to be suspended on full pay indefinitely. How should they have proceeded? Two answers present themselves, both of which are unpalatable; firstly, they could have waited to see if the police investigation produced a more definitive outcome, or secondly, they could have tried to negotiate a settlement agreement with the employee.
Issues like this are one of the thorniest situations an employer might encounter with an employee.
For more information
If you would like advice about this or any other employment law matter, please contact Andrew Buckley on 01234 270600.