If a teacher is charged but not prosecuted for having indecent images on their computer, is it reasonable for the employing local authority to nevertheless dismiss due to safeguarding concerns?
L v K (2021)
In this Scottish case, K was formerly employed as a teacher by L. He was arrested by Police Scotland, after an IP address at K’s home was linked to indecent online images of children.
Although both L and his son were charged, ultimately criminal proceedings were not brought against either but K informed the headteacher at the school he was employed at what had happened.
L duly commenced an investigation and received a redacted report setting out what evidence had been obtained by the Police. K admitted that a computer with the indecent images had been found in his possession but maintained that he did not know how they had got there, although he said that others had access to the computer. Following a disciplinary hearing, K was dismissed. Whilst it could not be proven that K had downloaded the indecent images, the reason for dismissal, following a risk assessment, was that K posed an unacceptable risk to children. K did not appeal the decision.
K made an unsuccessful claim for unfair dismissal in the Employment Tribunal. The tribunal found that the dismissal was ultimately fair due to ‘some other substantial reason’ (SOSR) The ET accepted that his possible guilt could not be ruled out and the circumstances gave rise to a breakdown in trust – key in the context of a teacher. As a result, mere suspicion was enough to raise safeguarding concerns, and cause a significant risk to the employer’s reputation.
K successfully appealed to the Employment Appeal Tribunal. K drew the EAT’s attention to alleged deficiencies with the employer’s handling of his dismissal, namely that he had been dismissed at a disciplinary hearing having been found not guilty and also that reputational risk had been cited as a reason for dismissal but not included in the letter inviting him to the hearing.
Finally, L appealed to the Court of Session (Inner House).
The Court of Session (Inner House) allowed the employer’s appeal and restored the original judgment of the Employment Tribunal.
The Court of Session commented that the tribunal needed to determine the reason for dismissal (SOSR) and assess whether the employer had acted reasonably in treating SOSR as a sufficient reason to dismiss. Having established SOSR as the reason, the ET did not need to consider whether the employer reasonably considered the teacher guilty of the allegation.
Whilst it was correct that there were technical procedural issues with the dismissal process, the Court of Session (Inner House) was satisfied that the ET had considered matters.
Whilst this case is quite specific to the facts, it highlights that in certain circumstances employers can dismiss for SOSR even where matters start out as a disciplinary issue.
Whilst the employer explained it away in this case, it is nevertheless important that an employee facing dismissal is informed of the allegations and potential reasons for dismissal in advance so that they can defend themselves at any hearing.
If you have any queries relating to defending claims for unfair dismissal or any other Employment Law or HR queries, please do not hesitate to contact our Employment team on 01228 552600 or 01524 548494.