Burden of Proof

You might be surprised to learn that a question I frequently get asked by employers is “my employee’s just been arrested – what can I do? Attitudes to this question vary from “everyone’s innocent until proven guilty” to “there’s no smoke without fire”, however, leaving aside personal beliefs, what’s the position under employment law? Let’s look at an example.

Mark works in an office. His employer’s IT department discovers that his computer has been used to download child pornography. Mark’s employer realises the seriousness of this and immediately contacts the Police.

Mark is suspended from work on full pay while the police investigate the alleged offence. He is charged and pleads not guilty. Many months go by before his case comes to trial during which time Mark remains suspended. At the conclusion of the trial Mark is found not guilty and so believes that he will now be allowed to return to work.

Mark’s employers write to him immediately after his acquittal calling him to a disciplinary hearing. In the letter to him they tell him that he is accused of gross misconduct. Specifically, it is alleged that he used his computer, in breach of computer and internet usage policies, to download child pornography. He is advised that he is entitled to be accompanied at the disciplinary hearing by a trade union representative or work colleague. Finally, he is also told that if the company believes he is guilty of gross misconduct he is likely to lose his job.

Mark’s defence is that he is innocent and has been proved so in a court of law. He says that he does not know if anyone else knows his computer password and so could have used his computer. The pornography was downloaded during a number of lunch hours. He says that he normally goes out to lunch, but admits that he does not go out every lunchtime. Mark works in an open plan office and none of the twenty people who work near him have ever seen anyone apart from Mark use his computer.

The Marketing Director, who is chairing the disciplinary hearing, does not believe Mark’s explanation. He believes that Mark used the company computer to download child pornography. Despite the fact that Mark is a good worker and well liked by everyone, the Marketing Director decides to terminate his employment without notice for gross misconduct. Mark appeals, unsuccessfully.

Mark is indignant; he was acquitted in the Crown Court and now he has lost his job. He brings a claim for unfair dismissal.

The Employment Tribunal disagree with Mark and find that his dismissal was fair.

Mark’s employer establishes that it carried out a proper investigation; it put all the evidence to Mark, it gave him a chance to answer the allegations, it complied with the statutory disciplinary procedure. Following all this the Marketing Director believed that Mark was guilty.

In employment law this is enough to justify Mark’s dismissal.

In criminal law a jury has to be convinced “beyond all reasonable doubt” that the defendant is guilty. It is a very high burden of proof, deliberately so, because a person’s liberty is at stake. However, a disciplinary hearing is not a criminal court and there is no real burden of proof. If an employer has a reasonable belief that the employee committed the alleged misconduct, that is sufficient. Once the employer has concluded that the employee committed the offence, it is for the employer to decide what the reasonable and appropriate disciplinary sanction is. Most people would accept that, once satisfied Mark had been downloading child pornography at work, the company is justified in sacking him.

The lesson for employees is that if you are accused of misconduct don’t imagine that you are in a court. “Pleading the fifth”, or telling your employer that it has to prove you are in the wrong, will not help your defence. Be as open and honest as you can be.

The lesson for employers is do not jump to conclusions too quickly, investigate carefully with an open mind and only reach a conclusion after a full disciplinary hearing, but don’t be afraid to reach your own, reasonable, conclusion.

Published 27/09/2003.