Case study: is it fair to dismiss a teacher who was suspected of possessing indecent images of children, even though they were not charged?
This was the question the Court of Session in Scotland recently addressed in L v K.
In this case, a teacher had been arrested for possession of a computer containing indecent images of children. His son, who lived with him, was also arrested but the charges against both of them were later dropped. However, the police reserved the right to prosecute.
Teacher informed school
The teacher informed the headteacher of the school where he was employed what had happened.
The headteacher sought advice from the local education authority. Its HR department asked the prosecuting authority (COPFS) why there had been no prosecution and sought advice as to the level of risk posed by the teacher. It was informed that such information would normally only be provided to the General Teaching Council for Scotland, but it was sent a redacted summary of the evidence.
The HR member of staff who received it understood the confidential nature of it and so it was not sent to the headteacher. In addition, this information did not play any part in the subsequent internal procedure.
The teacher attended an investigatory meeting arranged by his employer. At the meeting, the teacher said that he could not recall where he had purchased the computer and that his son had access to it. When asked whether a computer with indecent child images had been in his possession within his household, he answered ‘obviously yes’.
A disciplinary hearing then took place and the teacher again confirmed that he had a computer in his home which contained indecent images. His solicitor gave evidence but could not say why there had been no prosecution. She provided some possible reasons, for example, insufficient evidence; the party responsible could not be identified; the charges were downgraded.
Teacher was dismissed
The conclusion of the hearing was that it could not be confirmed that the teacher had downloaded the images, nor could it be confirmed that he had not been involved. This gave rise to safeguarding concerns and to reputational risk.
The employer carried out a formal risk assessment and the conclusion was that the teacher posed an unacceptable risk to children. The teacher was dismissed.
Claim of unfair dismissal
At an employment tribunal (ET), the teacher made a claim of unfair dismissal. Once the evidence had been heard, the parties made their closing submissions and the employer drew attention to its statutory responsibility for child protection.
The employer submitted that the dismissal was for ‘some other substantial reason of a kind justifying dismissal’ (SOSR), namely that:
- The teacher had been charged with possession of a computer which contained indecent images of children.
- The right to prosecute had been reserved.
- The teacher had accepted that his computer contained indecent images.
- His responsibility for this could not be excluded.
- As a result, he was deemed to present an unacceptable risk to children.
In addition, there was the potential for reputational risk to the employer and a breakdown of mutual trust and confidence.
Employer had acted reasonably
The teacher’s representative presented a number of claims, including one of bad faith in that the real reason for the dismissal was the employer’s belief and pre-determination that he was guilty. However, the ET was satisfied that the reason given for the dismissal was genuine and substantial, and was potentially a fair one. The ET also concluded that the employer had acted reasonably in dismissing for that reason.
The teacher appealed the ET’s decision. The employment appeal tribunal (EAT) upheld two of his five grounds of appeal.
- The first was that the letter inviting the teacher to a disciplinary hearing was based on misconduct and gave no notice that reputational damage was a potential ground of dismissal. It concluded that the lack of notice in the letter meant that the dismissal was unfair.
- The EAT also stated that its understanding was that the dismissal was on grounds of misconduct. Therefore, it concluded that, given his guilt could not be established, the alleged misconduct should have been taken into account.
Case remitted to the ET
Therefore, a decision of unfair dismissal was substituted and the case remitted to the ET for further procedure. The employer appealed against that decision to the Court of Session.
Employer appeals to the Court of Session
The Court of Session took the view that once the ET determined that the SOSR was genuine and substantial, the question was whether ‘the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee’, a matter to be determined in accordance with the substantial merits of the case.
Given the right to prosecute had been reserved and the teacher had accepted that his computer contained such images, the court concluded that the employer was entitled to proceed on that basis and that his involvement in their existence could not be excluded.
Duty to protect children
The employer had a statutory responsibility to protect the children entrusted to it and, in the circumstances, it decided that it could no longer place the necessary trust and confidence in the teacher. This was not because it was satisfied that the teacher was guilty, but because there was a real possibility that he was an offender.
Reasonable to dismiss employee
The Court was unable to identify any flaw in the ET’s analysis and reasoning. It concluded that in some circumstances it will be reasonable for an employer to dismiss someone who may be innocent if there is a genuine and substantial reason to justify the dismissal. On that basis, it restored the ET’s order that the claim of unfair dismissal be dismissed.
The ET rightly described the decision facing the employer as a ‘difficult one’. Cases such as this need to be dealt with in the context of the specific circumstances and early advice should be taken by schools.
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