The Employment Appeals Tribunal has upheld an employment tribunal decision that the dismissal of a school caretaker following unproven allegations of sex abuse was unfair.
In March 2010, the police had reported to the school that a claim had been made of sex abuse of a child by the caretaker. The alleged incident had taken place prior to his employment there.
The head teacher suspended the caretaker while investigations took place. Nothing further happened to support the allegation but the head called the caretaker to a forthcoming governors’ meeting in June 2011, which had been arranged to consider her recommendation that he be dismissed on the grounds that her trust and confidence in him as an employee had broken down irreparably, due to the serious nature of the allegations.
Two days before the meeting, the police officer investigating the case told the head teacher that an analysis of the accuser would be completed within two weeks, which would be passed to an expert witness to assess the validity of the allegation. No witness statements taken by the police had supported the accuser’s claim.
The governors agreed to dismiss the caretaker, noting that “even if the employee were to be completely exonerated the trust and confidence in him had been eroded.” At an Employment Tribunal, a judge ruled that the caretaker had been unfairly dismissed on the basis of an accusation “leading to no more [than] an unsupported suspicion that he was a risk to children. That…was not a substantial reason such as justified the dismissal of an employee holding the position that the claimant held.”
The caretaker was awarded compensation of £5,155 for unfair dismissal. The employer appealed against the unfair dismissal ruling and the caretaker also appealed, seeking a substantial award for damages on the grounds of depression arising from the way his employers had treated him.
In a judgment handed down on 9 December, the Employment Appeals Tribunal dismissed the employer’s appeal. In its ruling, it said: “Unsubstantiated allegations of sex abuse… give rise to one of the most difficult issues of balance which an Employment Tribunal has to perform.”
But it added: “The duty of such an employer concerned with serving children is first and foremost to those children, but that does not remove its responsibility to its employees. Every case will turn upon its own facts.”
It also rejected the caretaker’s appeal, saying it had not been adequately proven that the dismissal caused or contributed to his depression.
As the judgment above underlines, serious allegations do not necessarily have to lead to dismissal. Individual factors specific to the case must be carefully considered and there may be various options available to employers for handling the situation.
Palmers is active in acting for schools and our solicitors are aware of the need for robust Safer Recruitment policies and the need to apply those policies consistently, balanced with the need to act fairly to employees.
In such complex and challenging circumstances, seeking early advice from employment law specialists will enable employers to make informed decisions about the way forward. For more information about our employment law services, please visit our website or contact Lara Murray.