Employee acquitted of criminal offence wins claim for “pre-emptive” dismissal
An insurance worker was unfairly and wrongly dismissed from his job while still the subject of a criminal investigation, an ET has found. Mr Bosher was arrested in 2017 on suspicion of possession of indecent images, and was charged with the offence of being in possession of two “category A” images – those deemed to be the most severe – for which he was later acquitted.
However, while the criminal investigation was continuing, his employer, EUI Ltd dismissed Mr Bosher on the grounds of gross misconduct, claiming it had “reasonable belief that the allegations may be true”. This was despite keeping Mr Bosher at work, without restriction, during its investigation, and turning down his request at the appeal stage to await the Court’s verdict.
The ET concluded that although the burden of proof required for the disciplinary hearing was lower than that required under criminal law, it was not reasonable for the employer to have taken the decision to dismiss the claimant before the outcome of the criminal process. It was also judged that EUI Ltd did not set out some of the eventual reasons for dismissal, namely the allegations about reputational harm or the claimant’s fitness to continue in his role.
The tribunal concluded by saying, “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.,,,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.”
Mr Bosher was eventually acquitted of the alleged offences after the CPS offered no evidence against him.