Surely the worst nightmare for any school or other organisation which works with children is to have an allegation of sex abuse made against a member of staff. Even where the allegation is historical and has not yet been proven either way, this will always raise serious concerns for the safety of the children and the reputation of the organisation.
However, as was stated in the recent Employment Appeal Tribunal case of Z v A, "the duty of... an employer concerned with serving children is first and foremost to those children, but that does not remove its responsibilities to its employees."
A school received a report from the police that an allegation had been made of historical sex abuse against the Claimant, a caretaker at the school, relating to actions outside of, and before, his employment. Though disbelieving, the Head suspended the Claimant whilst investigations continued.
The police investigation took some time and approximately a year later, although nothing further had happened to support the allegations, the Head asked the Claimant to attend a meeting with her and an HR advisor. The Claimant denied the allegation and the Head spoke with the police officer dealing with the allegation who would not make any judgments at that stage, but confirmed that the analysis should be completed within a few weeks. The police did say that statements from certain witnesses had not supported the allegations.
Nonetheless, a hearing before the school governors was held two days later at which the Claimant was dismissed on the ground that the employer's trust and confidence in him had broken down irreparably. The record of the decision noted that the allegation had created a serious safeguarding issue for the school and, even if the Claimant 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 also concerned that the matter could seriously damage the confidence that parents and public had in the school. Due to the length of time the police investigation was taking, they did not feel that the school could reasonably allow the situation to continue for an unlimited period. This decision was upheld by other governors on appeal, despite the fact that the police investigation was due to complete shortly. What was clear was that the evidence (or lack of evidence) against the Claimant was, in reality, immaterial to the decision - the allegation had been made and in the governors' view that was sufficient to justify dismissal.
Whilst the Tribunal was clearly sympathetic to the difficult position that the school found itself in, it awarded the Claimant compensation for unfair dismissal. The Tribunal found that the existence of the allegation did not amount to a substantial reason justifying dismissal and that the procedure had been unfair.
The Tribunal stated: "A bare accusation by itself, even of something so serious, cannot... amount to a substantial reason justifying dismissal. If it were otherwise the consequences would be that there would be no reason to investigate any allegation by a pupil... or by a parent against a teacher: the mere fact of an allegation, however wild or frivolous, would be enough to dismiss."
What lessons should be learnt?
If you do find yourself in a similar position yourself, there are some important lessons to take away from this case:
1. Consider the facts. Whether an allegation against an employee is a substantial reason justifying dismissal is ultimately a question of fact and each case must be considered in the light of its own particular circumstances. It may be possible to fairly dismiss an employee based on a perceived risk to children in your care, but both the facts and employee's rights must be considered carefully.
2. Instigate the correct procedure. The Tribunal was critical in this case that the employer had referred to the process as a "formal disciplinary procedure" despite the fact that the allegations were unrelated to the Claimant's performance or conduct at work. Following the correct procedure will go towards showing the decision was reasonable and therefore fair.
3. Stay in contact with the relevant authorities. The tribunal was also critical of the failure of the school to stay up-to-date with the police investigation. Indeed, at the appeal hearing, the only information about when the investigation would finish came from the Claimant himself.
4. Put in place a policy for dealing with this scenario and stick to it. In this case the school did in fact have a policy in place, but they did not fully follow it. This was not conclusive, but following your procedures will help to show the reasonableness of the process.