An employment tribunal has found that an employer who fired an employee whilst facing a criminal investigation was wrongfully dismissed.
In 2017 Mr Bosher was arrested on suspicion of possession of indecent images, and was charged with being in possession of two “category A images” – images which are deemed most severe and carry the highest penalty.
Mr Bosher was later acquitted of these charges, although whilst the investigation was taking place his employer, EUI Ltd, dismissed him on the grounds of gross misconduct, stating that it had “reasonable belief that the allegations may be true”.
At the time of his dismissal in August 2017, Mr Bosher had been working at EUI since June 2011. At the point he was dismissed Mr Bosher had been working as a claims validation coordinator, and the tribunal heard that until he was arrested and subsequently dismissed he was “well-regarded” in his work.
Whilst the burden of proof is considerably lower for a disciplinary hearing than that required by the criminal court, the Cardiff Employment Tribunal nonetheless concluded that EUI were unreasonable in their dismissal of Mr Bosher before the Crown Prosecution Service had concluded their enquiry.
So what happened?
After being formally charged with the possession of “two category A images” by the police on 12 July 2017, Bosher informed his line manager of the situation. He claimed that whilst a link to indecent images had been found on his phone, there had been no images found on the phone itself. The tribunal heard, however, that there had been a dispute over the other details regarding the case that Mr Bosher had shared with his employer.
Mr Bosher was then told that following the charges against him he would not be suspended or placed under any restrictions at work, although EUI informed him that it would need to investigate the claims.
At a meeting on 3 August 2017, EUI informed Mr Bosher that the case would be brought to a disciplinary hearing, although once again no restrictions would be placed upon him whilst at work. Following this, on 11 August Mr Bosher attended court and entered “no plea” – which his line manager then passed on to his senior colleagues.
On 15 August, EUI completed their investigation into the allegations, and a summary sheet concluded: “We have reasonable belief that the allegations may be true, as [Bosher] has never categorically denied the allegations and it now appears that his solicitors are relying on technical points in order for the case to be thrown out, rather than submitting a plea of ‘not guilty’.”
On 22 August, Bosher was invited to a disciplinary hearing, facing an allegation of gross misconduct. At the hearing, he was summarily dismissed for gross misconduct. The meeting minutes stated that: “Due to the reputational damage, duty of care to our staff who are under the age of 18 and the breach of trust, we have decided to dismiss with immediate effect.”
The appeal
Mr Bosher then requested the appeal hearing be postponed until after his trial. The request was denied, however, and the appeal hearing went ahead in his absence – where the decision to dismiss Mr Bosher was upheld. Later, on 10 April 2019, Bosher was acquitted of the alleged offences after the CPS offered no evidence against him.
The employment tribunal ruled that the dismissal of the claimant was both unfair and wrongful. It was judged that EUI did not set out reasons for dismissal, such as the allegation about alleged reputational harm or the allegation about the claimant’s fitness to continue in his role. The tribunal concluded: “Taking into account their size and administrative resources, the respondent did not act reasonably in treating the reason(s) as a sufficient reason for dismissing the claimant.”
The ruling stated that “any reasonable employer would have waited for the outcome of the CPS enquiries and the claimant receiving further legal advice before making a decision on dismissal in respect of the related disciplinary charge.” Finally, it also found the dismissal to be wrongful due to Mr Bosher being summarily dismissed with immediate effect, which was in breach of his contractual term.
What’s next?
A remedy hearing to decide financial compensation due to the claimant will be carried out in due course. In the meantime, this case highlights the caution that employers need to exercise in the event that an employee is faced with criminal charges.
Any disciplinary procedure that is implemented based on criminal charges still needs to be processed fairly and in line with procedures. As seen here, the fact that the employer could not demonstrate they had reasonable belief that the criminal accusations levelled against the employee were true, and chose to dismiss the employee anyway, was crucial to the finding of unfair dismissal.
