A recent case has highlighted how important it is to get the allegations contained in the disciplinary invite letter right. 

In this case, the teacher was charged with possession of indecent images of children but was not prosecuted.  He admitted the computer in his home contained the indecent images but denied that he was responsible for downloading them.  The school found there was insufficient evidence to conclude that he was responsible for the images but decided that he should be dismissed in any event because allowing him to return to his post would pose an unacceptable risk to children.  They also referred in the dismissal letter to the “serious reputational damage” which would be caused if he was subsequently found guilty of this kind of offence when the school had been aware of the allegations.

The dismissal was found to be unfair – the Employment Appeal Tribunal found that the invitation letter focused only on the issue of misconduct in relation to the possession of the images and gave no notice that reputational damage was a potential allegation that was being considered as a potential ground for dismissal.  As a matter of procedural fairness, the employee needs to come to the disciplinary hearing knowing the allegations that they are facing.  In this case the issue of reputational damage was mentioned in the investigatory report but not tracked through into the invitation letter.  This meant the teacher was not given the opportunity to address the issue in any detail at the disciplinary hearing.

It is very important to spend time putting the invitation letter right.  You may need to choose the wording of any allegations very carefully and you may find that there is a lack of evidence.  For example, if stock has gone missing from a warehouse, accusing the employee of theft is something that you cannot prove to the required standard of reasonable belief.  Or if the employee is responsible for control, accusing them of ‘creating circumstances in which it was able to go missing’ may be something that you are better able to evidence.

Secondly, as this case shows, you need to have all the potential issues that you may be addressing highlighted as allegations.  So, if trust and confidence in the person is likely to be an issue, this needs to be included in the allegations.  You shouldn’t be adding it later.

Refreshing Law Ltd

22 September 2020