In Z v A, A was the caretaker at a primary school. The police reported to the school that an allegation had been made that before A became an employee, he had sexually abused a child. The head teacher suspended A from duty, her reason being that protection of the children was paramount. A denied the allegation, but the police continued to investigate for a year. Two days before a disciplinary hearing, the police indicated the investigation was continuing, none of the witnesses identified by the accuser had supported the claim, but they were taking no view about the credibility of the accuser and were still engaged in fact finding. The disciplinary panel decided to dismiss A, as the school's trust and confidence in him had broken down.

An employment judge (EJ) recognised that where an accusation of child abuse, albeit historic, is made, a school cannot reasonably ignore it, but is in no position to assess the allegations for itself; whilst on the other hand the employee is at risk of serious injustice if he is to lose his job on the basis of an unproven and untested allegation made to his employer. The EJ went on to find the dismissal substantively unfair, because a bare accusation by itself, even of something so serious, cannot amount to some other substantial reason (SOSR) justifying a dismissal. If it were otherwise the consequences would be that there would be no reason for investigating any allegation by a pupil against a teacher or by a parent against a teacher: the mere fact of an allegation, however wild or frivolous, would be enough to dismiss, and that could not be right.  Even if the substantively unfair finding was wrong, then the employer had not acted reasonably as it had not followed its own policy and procedures for dealing with child protection issues.

The EAT upheld the tribunal’s decision. The decision is essentially one of fact and the EJ’s approach showed no error of law.  Consistent case law suggests that while an employer's decision to dismiss, where there has been an allegation (but no conviction) of child abuse may well, and indeed generally, be fair, that is not inevitably so. Moreover, there is no presumption that such a dismissal will be fair unless there is some exceptional reason to decide otherwise: holding so would introduce an inadmissible gloss on the wording of S.98 of the Employment Rights Act 1996. That section calls for the employer first to establish a qualifying reason for the dismissal, which in this case it had not done. As the EAT commented, SOSR is not to be used as a convenient label to stick on any situation where the employer feels let down or feels it can be used as a valid reason whenever a conduct reason is not available or appropriate. 

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