Where an employer forms a reasonable belief, based upon a reasonable investigation, that an employee is guilty of sexual abuse – particularly where his/her work involves access to vulnerable groups such as children – then it will be fair to dismiss for the potentially fair reason of conduct (see Section 98 (2) (b) Employment Rights Act 1996).
However, what happens when allegations are made against the employee and the employer cannot investigate those allegations?
An employer can dismiss fairly for a ‘substantial reason such as to justify the dismissal of an employee holding the position which the employee held’ (SOSR) under Section 98 (1) (b).
Does the fact of such a serious allegation against an employee who has access to vulnerable children amount to a substantial reason in these circumstances?
The answer, as is often the case, is that it depends upon the facts in each particular case. In the recently reported case of Z v A the Employment Appeal Tribunal held that the School in question had unfairly dismissed a caretaker against whom unsubstantiated allegations had been made.
There is no rule that the mere fact of an allegation of abuse will justify dismissal, despite considerations for the welfare of the pupils at the school and its reputation.
This decision sounds more surprising than it is when the facts of the case in question are understood, however, it serves as a further reminder that SOSR cannot be used as a convenient ‘catch all’ category for dismissals that do not fit with category of ‘conduct’ and where the dismissal lacks substantive and procedural fairness.