By Safia Tharoo
The Employment Appeal Tribunal recently considered the case of A v Z (UKEAT/0203/13).
‘A’ was employed as a school caretaker and site manager at a primary school. In March 2010 an allegation was made to the police that ‘A’ had, some time ago, abused a child. That allegation was reported to the school by the police in April 2010, and ‘A’ was suspended by the school on the basis that the protection of children was paramount. ‘A’ remained suspended for over one year. Although the accuser had wanted to raise the allegation, they did not want a criminal charge and therefore there was unlikely to be a trial. However the police were still ‘investigating’ the matter.
The School Head Teacher decided that after 14 months she wished to deal with the matter and called ‘A’ to a meeting. ‘A’ told her that he resisted the allegations and wanted to question the accuser. He also told her that the police wanted to drop the case. Despite this, ‘A’ was invited to a hearing before the school governors for them to consider her recommendation that ‘A’ be dismissed on the ground that the trust and confidence which she had in him as an employee had broken down to the point where it was irreparable. This was “due to the very serious nature of the allegations”. The governors decided to dismiss ‘A’. They noted 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 notes of the meeting showed that the governors believed that the evidence against ‘A’, if any, was immaterial; the allegation had been made and that was enough. They were also concerned about the damage to the confidence that the parents and the public had in the school. ‘A’ appealed against the decision but that was unsuccessful.
‘A’ brought a claim to the employment tribunal of unfair dismissal. The Tribunal recognised the difficulty for the employer in seeking to deal fairly with ‘A’. Where an accusation of child abuse, albeit historic, is made, a school cannot reasonably ignore it, but is in no position to assess the allegations for itself; whilst on the other hand the employee is at risk of serious injustice if he is to lose his job on the basis of an unproven and untested allegation. However, in this case there was nothing further than the accusation, and therefore the Tribunal found that a bare accusation, even of something so serious, could not amount by itself to a substantial reason justifying dismissal.
The school appealed to the Employment Appeal Tribunal (EAT), arguing that the Tribunal was wrong to find that it did not have a substantial reason for dismissal. The EAT considered other decided cases in this area and made clear that each case of this nature turns on its own facts. Clearly, different police investigations produced a variety of information and outcomes. The extent to which an employee’s work related to children, for example, has a significant effect on the emphasis to be placed on such an allegation. It was also relevant to consider whether there was any scope for an employee to be transferred to an alternative role where they did not need to come into contact with children. Where, as had occurred in another case, an allegation was brought to the attention of a school along with a warning from the Metropolitan Police Child Abuse Investigation Command that they considered the individual concerned posed a continuing threat to children, that would provide stronger grounds for action, but even then dismissal would not be automatically justified without further consideration of other issues, such as the ones set out above.
In this case there was no more than a single, untested and unproven allegation. The EAT decided that the Tribunal’s decision and reasoning as to why ‘A’ was unfairly dismissed was sound and the appeal failed. They noted the extremely difficult balancing exercise that this type of case gives rise to and the quandary that a school is placed in. However, on this occasion the school had failed to demonstrate that they had conducted that balancing exercise fairly.
Safia Tharoo, Barrister, 42 Bedford Row, London