The EAT’s decision in K v L is a stark reminder of the need for an employer to have sufficient evidence to be able to form a reasonable belief that an employee has committed an act of misconduct. A schoolteacher, K, was charged with possession of indecent images of children but a decision was made not to prosecute. The Crown provided the employer with a summary of the evidence but would not permit it to be released to anyone else; it was withheld from the decision maker in disciplinary proceedings who decided to dismiss K. An ET found the dismissal fair but K appealed arguing that as he was accused of misconduct it was necessary for the employer to decide whether or not he was guilty of downloading the images and given the evidence they had, they were in no position to do so, nor could the employer dismiss him based on the possibility he had downloaded the images. The EAT upheld the appeal. The reasonable approach to the standard of proof was to apply the balance of probabilities. Where the employer was not in a position to make a judgement about conduct as the ground of dismissal, the employer was required to be satisfied that there was substantial evidence that was open to scrutiny and challenge in support of showing misconduct and this test was not satisfied in this case so dismissal was unfair.
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