HR: Consideration of Dismissal Alongside Criminal Concerns

This summary is based on Judicium’s HR ‘Sofa Session’ from the 30th of March, with our resident expert Kelly Raynor, B.Juris, LLB, QLTT. This session focused on practical steps in dealing with cases in which a colleague may have committed a criminal offence, potential dismissal - weighing up safeguarding obligations and employment law risks, and a look at recent case law.

Considering dismissal can feel daunting at the best of times but throw in the added complexities of criminal concerns, and even the most proficient employers may feel uneasy.

The focus for this session is when criminal matters impact on school life and more particularly how to go about dealing with cases in which school employees have or may have committed criminal offences. 

In school you may become aware for the first time of an employee’s involvement (or potential involvement) in criminal conduct in a number of ways including:

• An employee might approach you (or a line manager or a colleague) to disclose that they have been cautioned (or perhaps even arrested and released on bail) in connection with a criminal offence.
• The employee may not turn up for work and you may receive contact from the police directly to inform you that the employee has been arrested and is being held for questioning.
• On a more dramatic note, the police might arrive at school and make an arrest with the school having no prior knowledge at all of any concern regarding the employee.
• In some circumstances a potentially criminal incident may have taken place at your school and been reported to you and you as a school report the matter directly to the police (and other relevant agencies like the LADO or social services, etc.)

After such an unsettling turn of events, what exactly do you need to do next from an HR perspective?

6 Practical Steps to Deal with Cases Where a Colleague May Have Committed a Criminal Offence 

Step 1: Pause for thought

Every situation will be unique and will need to be addressed depending on its own individual facts.

NB:The biggest error schools make in these situations is to act impulsively and take ‘kneejerk’ steps allowing the emotion and perceived urgency attached to the situation to take over.

Step 2: Think about who in the school are the appropriate staff to be dealing with the issue?

Any concern that a colleague may have committed a crime is sensitive. Keep the staff involved contained to a minimum.

Key role players may be outlined in your specific disciplinary policies or your policy for dealing with allegations against staff (should that be applicable). At this early stage they may include:

• The Head of School in which the employee is working (whether you’re a single school or part of a MAT). This person is likely to be the decision-maker on important questions like whether to suspend the employee (more on this later), liaising with the LADO and police and on appointing an investigator.
• The Designated Safeguarding Lead (if the case is linked to safeguarding).
• The Head of School/ DSL can also be a key point of contact for the employee. If not, another appropriate senior colleague may take this role.
• Your HR manager / adviser

Step 3: Identify what type of allegation of criminal conduct you are dealing with.

1. Is this alleged conduct that is not connected in any way with children and therefore not a safeguarding matter? E.g. An employee in the office team is seen on CCTV removing money from the school safe. 

2. Is the allegation one that meets the ‘harm’ threshold outlined in KCSIE? Is the allegation one that might indicate a person would pose a risk of harm if they continue to work in their present position, or in any capacity with children in a school or college? E.g. An employee alleged to have engaged in sexual activity with a child.

3. Is this a ‘grey’ area case which might but does not necessarily have safeguarding implications? E.g. The employee has been arrested for drink driving on a Saturday morning after a late night party. The conduct in these circumstances may not directly impact on his role at school or present a safeguarding risk, but if he were arrested drunk on his way to work at school then this may present a safeguarding risk.

Step 4: Consider whether to suspend the employee

Suspension should not be an automatic response when a criminal allegation is reported or under investigation by the police. All options to avoid suspension should be considered prior to taking that step.

Consider very carefully before suspending whether the circumstances warrant suspension.

Case law and ACAS code of practice have made clear suspension is generally only appropriate if there is a serious allegation of misconduct and:

• There are reasonable grounds to believe that the employee might seek to tamper with or destroy evidence, influence witnesses and/or sway an investigation into the disciplinary allegation.
• Working relationships have severely broken down to the point that there is a genuine risk to other employees if the employee remains in the workplace.
• The employee is the subject of criminal proceedings which affect whether they can do their job.

KCSIE Guidance

When considering suspension, Part Four (par 361 onwards) of the Keeping Children Safe in Education Guidance is also very helpful in setting out what to consider when considering suspension in circumstances in which criminal investigation is pending.

• Children’s social care or the police may give their view to the LADO but they cannot require the case manager to suspend a member of staff or a volunteer, although the case manager should give appropriate weight to their views. The power to suspend is vested in the governing body or proprietor who are the employers.
• However, where a strategy discussion, or initial assessment, concludes that there should be enquiries by the children’s social care, and/or an investigation by the police, the LADO should canvass police and children’s social care for views about whether the accused member of staff should be suspended from contact with children.
• Police involvement does not make it mandatory to suspend a member of staff; this decision should be taken on a case-by-case basis having undertaken a risk assessment about whether the person poses a risk of harm to children.

Step 5: If you have decided to suspend, write to the employee to tell them of that decision and what will happen next

Key things you must include in the letter:

1. Why the decision has been taken to suspend providing as much detail as is reasonable and appropriate in the circumstances. There is no template, and it will be specific to each case.

2. If immediate suspension was considered necessary, the rationale and justification for that decision, including what alternatives to suspension have been considered and why they were rejected.

3. The pay arrangements while suspended.

4. Who will be the employee’s named contact within the organisation and provide the employee with their contact details.

Seek advice on drafting this letter – there is no one size fits all letter that will suit every suspension!

Step 6: Proceed (if appropriate) with appointing an investigator and proceed with a formal internal investigation

But what if there is an ongoing police investigation?

Do we need to postpone any internal disciplinary proceedings?

No, not necessarily.

It is a common misconception that an employer may not proceed with any internal investigation or disciplinary process while a police enquiry is ongoing.

This is sometimes but not always the case. 

The law states:

Where a criminal investigation is pending or proceedings in the criminal courts are ongoing, an employer will usually have a wide discretion as to whether or not to carry out internal disciplinary proceedings at the same time, or whether to wait until the criminal proceedings are completed.

It will not always be unfair for an employer to dismiss an employee before their guilt in a criminal court has been established.

Potential Dismissal - Weighing Safeguarding Obligations and Employment Law Risks 

We understand the dilemma and potential conflict that school leaders face in cases when criminal concerns or allegations are of a kind that might indicate this employee will pose a risk of harm if they continue to work in their present position or in any capacity with children in a school setting. 

But while a criminal allegation is still under investigation an employee remains “innocent until proven guilty” so what do you do in the meantime?

It can often be a very lengthy period of waiting while the police conclude their enquiries. 

You may have grave concerns that this person may pose a significant risk, but you are not in a position to prove this.

How do you balance your paramount duty to ensure the safety and wellbeing of children in your care against the duty of care to employees and the employment law risks of getting this wrong?  

That is a difficult road to navigate, but the below tips will help:

1. Part Four of Keeping Children Safe in Education is an essential guide

2. Liaise with the relevant agencies such as the LADO or police, but remember they are approaching the case from a different perspective to the role you are as an employer.

3. Work closely with your employment law & HR advisers

4. Work closely with your safeguarding teams

Recent Case Law 

The Court of session in 2021 (L v K)

The employee was a teacher who had been employed by the school for 20 years and had a clean disciplinary record. The police were tipped off that indecent images of a child or children had been downloaded to an IP address associated with the teacher. The police attended his home and seized a computer that had images of that nature on it.

The teacher told the school that he was the subject of the police inquiry and denied that it was him who had downloaded the images. He explained that his son and his son’s friends also had access to the computer, and it could have been them. The teacher was suspended from work.

He was charged with the criminal offence of possessing indecent images of a child or children, but the prosecutor later decided not to prosecute him. The prosecutor did send the teacher a letter confirming that decision but also reserving the right to prosecute at a later date.

The school also held an investigatory meeting with the teacher and disciplinary proceedings were initiated.

The school found that it could not be concluded that the teacher downloaded the images; however, it also could not be confirmed that he had not been involved.

This in the school’s view gave rise to safeguarding concerns and to reputational risk, at least in part because if the teacher were prosecuted in the future and it became known that in the meantime the school had taken no action. A formal risk assessment concluded that the teacher posed an unacceptable risk to children.

He was dismissed for these reasons.

It was found in this case that the reasons he was dismissed were not his conduct, but that he had nevertheless been fairly dismissed for some other substantial reason which is another potentially fair reason in law. This is known as an SOSR dismissal.

In short, even though the employer had insufficient evidence to conclude that the teacher was guilty of the offence, the dismissal was fair. 

This case shows us that in some circumstances it will be reasonable for an employer to dismiss someone who may be innocent if there is a genuine and substantial reason to justify the dismissal.

KCSIE - https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1021914/KCSIE_2021_September_guidance.pdf

Court of Appeal case (regarding suspension) -  Gogay v Herts CC [2000] IRLR 703 -

https://www.bailii.org/ew/cases/EWCA/Civ/2000/228.html

If you require any support in any of these steps or would like to talk to someone surrounding some support for your school, please do not hesitate to call us on 345 548 7000 or email georgina.decosta@judicium.com.

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