May 17, 2022

Volume XII, Number 137

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All Zeros and Ones – EAT Sums Up Burden of Proof for Disciplinary Decisions (UK)

Back in March we posted here a piece about dismissing to protect the employer’s corporate reputation. In that case the employer made a very difficult choice between the claimed (ultimately, actual) innocence of the employee and the harm which continuing to employ him might do if he turned out to be guilty. On the facts, the dismissal was found fair, but as if to reinforce that dismissing to protect corporate reputation is always a risky business, here is another example from earlier this month with the opposite conclusion.

K-v-L (the parties kept anonymous by ET Order arising from the nature of the case) concerned a teacher in Scotland at whose home was found a computer, his computer, containing a number of indecent images of children. Although he admitted that the computer was his and that it contained those images, he vigorously denied downloading them or even knowing that they were there. He could only think that they have been downloaded by his son (who did have access to the computer) or some of the son’s more maladjusted little friends.

K was charged with a criminal offence relating to those images and reported that, as he was bound to do, to his employer. He also reported receipt shortly afterwards of confirmation from the office of Procurator Fiscal ( the public prosecutor in Scotland) that it did not intend to proceed with the charges against him after all, though it did not say why and did not formally acquit him. Nonetheless, L called him to a disciplinary meeting in connection with the police investigation and the admitted ownership of the computer, and then dismissed him.

There were two key planks to L’s reasoning in taking that decision. First, the risk to its reputation if K were to be accused or found guilty of a similar offence in future and it became known that L had not dismissed him the first time. Second, that although K denied the offence and was not being prosecuted for it, L could not “exclude the possibility” that he had in fact committed it. Both these planks had problems.

First, while averting reputational damage could certainly justify a dismissal in appropriate cases, the letter convening the disciplinary meeting with K had in fact focused on whether he was guilty of misconduct in relation to the child images, not the quite separate question of what reputational damage might be caused to L by a continuing association with K whether he was guilty or not. This was not a minor inconsistency of terminology but a different concern requiring different representations and different evidence from K in rebuttal. Because he had thereby been “sold a dummy” as to the reasons being relied upon, the Employment Appeal Tribunal concluded that his dismissal was unfair.

That might have been a procedural matter only with limited financial significance if L had been able to show a reasonable belief that K was culpably responsible for the indecent images found on his computer. For that it needed to reach some solid findings of fact. Quoting a non-employment case, the EAT said “if a legal rule requires a fact to be proved…, a judge or jury must decided whether or not it happened. There is not room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party that who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened”.

The dismissing officer was obviously not a jury but was effectively acting as judge of fact and so the EAT saw no reason why that principle should not apply to internal fact-finding just as much as that done in open court. However, here she had relied upon not being able to “exclude the possibility” that K had downloaded the images, which was a very far cry from a finding on the balance of probabilities that he actually had. It was in effect a “zero”, meaning that no finding of misconduct could be made.

Relatedly, since it knew that K was not now being prosecuted, the risk of adverse PR to the employer arose almost entirely from the possibility of some future act by K justifying a re-opening of the matter. Especially as L should have reached a “zero” in relation to the present allegation (meaning it had “not happened”), there were no good grounds to believe on a balance of probabilities that that future act was likely to occur, and so that aspect of L’s reasoning was also found defective.

Lessons for Employers

  1. Be as clear as you can be in your notice convening a pre-dismissal consultation meeting as to what you are saying happened and why you think that may warrant dismissal. This means stating the facts that the employer relies upon and does not require it to identify the precise legal label which the law would attach to them. In some cases, for example, there may be a blurring of the lines between capability and conduct issues, but that will not much matter if the underlying behaviours and the problems they cause are clearly described in the disciplinary summons.

  2. To rely on a fact to support a dismissal, the employer must have a positive, reasonable belief that it happened, a binary “one” and not see it as merely a residual possibility.

  3. To rely on a possible future event also requires the employer to have a reasonable belief that something may happen, not merely a lingering concern that it might.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 251
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

+44 20 7655 1132
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