Wednesday 15 January 2014

Unfair Dismissal - Allegations of Historic Child Abuse

Thanks to Ed McFarlane of Deminos HR for preparing this case summary
Does the fact of an allegation against a school caretaker of child abuse, occurring prior to and outside of employment, amount to a substantial reason for dismissal?
Not on these facts, held the EAT, in Z v A (Langstaff P) dismissing a school’s appeal against a finding of unfair dismissal in respect of a dismissed caretaker, who had been the subject of an allegation of abuse. The investigating police expressed no view to the school as to the veracity of the allegation before dismissal, and had not warned the school against employing the Claimant.
The EAT emphasised that when considering dismissal for SOSR, the reason must be “…of a kind justifying dismissal…” and that those five words should not be overlooked. There was no rule that the mere fact of an allegation of abuse made a resultant dismissal fair, each case depended on its facts. There is no presumption that such a dismissal will be fair unless there is some exceptional reason to decide otherwise (para. 29). The EAT emphasised the approach set out by the Court of Appeal in Leach v Ofcom, and that SOSR was not to be used as a convenient label to stick on any situation where an employer feels let down, or a conduct reason is not available or appropriate. The employment tribunal’s conclusion that the school acted unreasonably in dismissing the Claimant was not perverse.
The Claimant’s cross-appeal against a refusal by the tribunal to award damages for psychiatric injury arising from the dismissal failed. The tribunal found that the Claimant had insufficient evidence to show that the dismissal (as opposed to the impact of the allegations) caused him psychiatric injury.

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