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Insurance worker unfairly dismissed after arrest for possessing indecent images

12 Nov 2019 By Siobhan Palmer

Tribunal finds employer reached decision over individual’s guilt before criminal trial had been concluded

An insurance worker was unfairly and wrongly dismissed from his job while he was the subject of a criminal investigation, an employment tribunal (ET) has ruled. 

Mr D 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 continued, his employer, EUI Ltd – a subsidiary of the Admiral Group – dismissed Bosher on the grounds of gross misconduct, claiming it had “reasonable belief that the allegations may be true”.


 

The Cardiff ETconcluded that although the burden of proof required for the disciplinary hearing was lower than that required by the criminal court, it was not reasonable for the employer to have taken the decision to dismiss the claimant before Crown Prosecution Service (CPS) enquiries had concluded. 

Bosher had worked at EUI since June 2011. At the time of his dismissal on 22 August 2017, he worked as a claims validation coordinator. The tribunal heard that until the events leading to his dismissal, he was “well-regarded” in his work. 

On 30 March 2017, police attended Bosher’s home with a search warrant and took possession of his mobile phone, tablet and other electronics. He was then arrested on suspicion of being in possession of indecent images and released on bail.


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On 12 July, the police formally charged Bosher with the offence of being in possession of “an indecent photograph, namely two category A images”.

Bosher informed his line manager that he had been charged and that a link had been found on his phone to indecent images, but that no indecent images were found on the phone itself. However, the tribunal heard there was a dispute over what other details Bosher shared with his employer about the case.

The tribunal heard EUI had notes from a meeting on 19 July which indicated Bosher said he was not surprised the police had found such images in his cloud storage facility. However, Bosher told the tribunal he had in fact said he was surprised that pornography was found in the folder.

Bosher told the tribunal he was aware there was distasteful material in a cloud folder he accessed, for example, images of sadomasochism. He said he had accidentally seen the images but not knowingly looked at, possessed or downloaded them.

Following this meeting, Bosher was told that following the charges against him, EUI would need to investigate the claims, but he was not suspended or placed under any restrictions at work. 

The tribunal heard notes from a subsequent meeting on 3 August showed Bosher had told EUI that his solicitors had advised him to plead guilty. However, Bosher disputed this and told the tribunal that at this point his solicitors had not yet advised him how to plead.

At the meeting on 3 August, Bosher was advised that the case would be brought to a disciplinary hearing at EUI, but again no restrictions were placed on him at work. 

On 11 August 2017, Bosher attended court, and his line manager updated senior colleagues that Bosher had entered “no plea” rather than guilty or not guilty. 

On 15 August, EUI’s investigation into the allegations was completed, 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’.”

Two days later, Bosher was invited to a disciplinary hearing which took place on 22 August, 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.”

Bosher appealed this decision, particularly the suggestion from his employer that as his solicitor was relying on a technicality to plead his case, rather than pleading not guilty, it was likely he had committed the crime.

He stated in his appeal that soon after the disciplinary hearing, his counsel has advised him to enter a plea of not guilty.

Bosher then requested the appeal hearing be postponed until after his trial, but the request was not granted. The appeal hearing went ahead in his absence and the decision to dismiss him was upheld. 

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 his employer did not set out some of the eventual reasons for dismissal, namely 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.”

It also found the dismissal to be wrongful due to Bosher being summarily dismissed with immediate effect, which was in breach of his contractual term. 

A remedy hearing to decide financial compensation due to the claimant will be carried out in due course. 

Paul Holcroft, associate director of operations at Croner, advised employers to exercise caution when their staff are faced with criminal charges.

Acknowledging that it may be an employer's first instinct to exit them from the company, Holcroft said: “This case sends a clear message that these situations, while difficult, must be handled with care.

“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.”

David Harris, managing partner at DPH Legal, added that no matter what the nature of the criminal investigation facing a staff member, for employers “the test is about how the circumstances impact on the individual’s ability to perform their role”.

“What an employer should do is allow the criminal process to continue and take stock,” he said, adding that at most the employee could be suspended on full pay until the  conclusion of the criminal process.

Admiral Group declined to comment on the case. Bosher could not be reached for comment.

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