Employment law
a teacher on suspicion of downloading inappropriate images of children, was unfair. The claimant was a long-serving teacher who was arrested and questioned following police intelligence that his home computer had been used to download indecent images of children. Although charged he was not prosecuted, with the Procurator Fiscal deciding to keep the case under review. The claimant disclosed the ongoing police proceedings to the school and denied the allegations. A decision was taken to implement a disciplinary procedure against him, which led to an investigation into the allegations. As the school could only obtain minimal evidence from the police, the investigation report could not confirm he had downloaded the images. However, it referred to the reputational risk of maintaining his employment. The teacher was later dismissed on the grounds of gross misconduct as it was believed he posed an unacceptable risk to children. The dismissal referred to this reputational risk, outlining the danger of it later being discovered that he had been kept on despite the charges and that he could still later be prosecuted. The claimant brought a claim of unfair dismissal to the ET, which dismissed his claim. Whilst the ET agreed that the reputational damage aspect did not form part of the initial allegations against him, its mention in the investigation report ‘reflected’ grounds for dismissal. The claimant appealed to the EAT arguing that as the initial complaint failed to mention the reputational damage aspect, he could not have later been dismissed for it. He also stated that the school had failed to confirm he had downloaded the images and dismissed him purely on the possibility he had done so. ...degree of control placed upon the claimants meant that they were clearly obliged to perform work personally...
The EAT allowed the appeal, agreeing that the dismissal had been unfair. They first addressed the reputational damage aspect, finding that an employee could not be dismissed based on a matter that had arisen in an investigation report. This had not been put to the claimant at the commencement of the disciplinary procedure, and specifically was not included as an allegation within the letter inviting him to the disciplinary hearing. As such, he had not been given a fair opportunity to respond directly to this issue; it should have been treated as a separate consideration. Despite this conclusion, the EAT did consider whether it would have been a fair outcome to dismiss had this issue been raised at the commencement of the disciplinary procedure. The court ultimately concluded it still would not have been. There was no detailed evidence, no existing press interest and the claimant had been honest about the accusations from day one. This is an interesting outcome that addresses the issue of reputational damage head-on. Whilst organisations in similar situations may seek to dismiss the employee straight away, they need to make sure that their response is reasonable in the given circumstances. Glasgow City Council v Johnstone The claimants in this case responded to an advertisement for fostering services on behalf of a local authority. This represented a new treatment for fostering young people which differed from usual arrangements. The differences were as follows: ● unlike other foster carers, those under this scheme received a professional fee regardless of whether they had any current placements ● carers had to complete a rigorous training programme, attend meetings and further training even when not caring for children, take holidays outside of placements, and not be in any other paid employment. There was, however, some flexibility in the arrangement. Carers did not have to automatically take all children they were told to by the authority, but they did have to justify why they were refusing some over others. The terms of the foster caring arrangement, which were outlined in an agreement signed by both parties,
referenced a separate payment policy that referred to carers as ‘self-employed’. After a number of years operating under this agreement, a dispute arose between the claimants and the local authority. The claimants argued that they had been subjected to a detriment as a result of making a protected disclosure, when they had claimed the authority had denied them urgent specialist support in caring for a child with mental health concerns. They later sought to bring this claim to the ET, alongside unlawful deduction from wages. The local authority, however, argued the claims should be struck out as the claimants were not employees or workers and therefore not protected under the law. A preliminary hearing was held by the ET to determine the employment status of the claimants. They concluded that the claimants had entered into contractual arrangements with the authority to receive an annual salary, were subject to considerable day-to-day control, and were prohibited from taking other employment. Having found this, the ET went on to conclude that the claimants were not just workers, but actually employees. In forming their decision, the court outlined that the degree of control placed upon the claimants meant that they were clearly obliged to perform work personally for the organisation. The local authority appealed to the EAT, which dismissed the appeal. The court began by addressing the terms of the agreement, finding that whilst many of them were simply outlines of statutory obligations placed on foster carers, additional terms on the financial arrangements between the two, and powers of mutuality and control, went further than this and suggested employment. The EAT went on to outline that in situations where a local authority narrates the terms for which they are willing to authorise individuals to be foster carers, and these terms involve exercising control over their provision of this service, it will be up to tribunals to determine if there is an employment relationship. It is important to remember that this outcome applies only to foster carers who work under the specific arrangement described; this is not necessarily how all foster carers operate. n
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| Professional in Payroll, Pensions and Reward |
Issue 65 | November 2020
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