No, held the Employment Appeal Tribunal (EAT) in the recent case of K v L.
Note: the names of the parties have been anonymised due to the nature of the case.
The claimant was a teacher with 20 years’ service with his employer and an unblemished record. In 2016, his home (where he lived with his son) was raided by the police based on intelligence that indecent images of children had been downloaded to an IP address connected to him.
Shortly after the raid, the teacher informed his employer that he was involved in a police enquiry into the potential possession of indecent images of children. He denied from the outset that he was responsible for the images being on the computer, but was suspended by the school whilst matters were being investigated.
The teacher was subsequently charged by the police with possession of indecent images of children. Following a review of the evidence, the decision was made not to prosecute the teacher as it was unclear who had downloaded the images, although the prosecutor reserved the right to prosecute the teacher in the future, should further evidence come to light.
The school made enquiries with the Crown to ascertain what evidence they held so they could make an informed decision as to whether it was appropriate for him to continue to work with children. The Crown provided the school’s HR Advisor with a summary of the evidence, but would not permit it to be released to anyone else.
The teacher was later invited to a disciplinary meeting. The allegations largely focussed on the teacher’s involvement in the police investigation and whether he was guilty of downloading indecent images of children. The letter did not refer directly to the school’s concerns over reputational damage as a potential ground for dismissal.
At the hearing the teacher accepted that the police had found indecent images on his computer, denied downloading them and maintained that he did not know how they got there. He said that it was possible that his son, or one of his son’s friends, could have downloaded the images.
The chair of the meeting found that there was insufficient evidence to conclude that the teacher was responsible for downloading the images, but she dismissed him in any event, as a result of an irretrievable breakdown in trust and confidence. The following reasons were cited:
- the risk of serious reputational damage if the teacher were to be accused, or found guilty, of a similar offence in future and it became known that the school had not dismissed him following the initial incident.
- although the teacher had denied the offence and was not being prosecuted for it, the school could not “exclude the possibility” that he had in fact committed it, and allowing him to return to his teaching post or any other vacancy within the school would present an unacceptable risk to children.
The teacher brought a claim of unfair dismissal, which was rejected by the Employment Tribunal.
The teacher appealed this decision to the EAT. He argued that the risk of reputational damage was not listed as an allegation against him within the notice he received convening the disciplinary meeting and, as such, the school could not fairly dismiss him on this ground.
In addition, he alleged that the school’s case focused on the act of downloading the images as constituting misconduct, rather than the risk of reputational damage. As such, it was necessary for the school to decide, on the balance of probabilities, whether he was guilty of downloading the images and there was insufficient evidence to prove this.
The EAT ruled in favour of the teacher for the following reasons:
- The school, as an employer, had to give the teacher sufficient notice of the allegations against him and it had failed to notify the teacher in advance of the disciplinary meeting that the risk of reputational damage was a potential ground for dismissal. As such, it was unfair to rely on that ground.
- It was not appropriate or reasonable for the school to dismiss the teacher due to the fact that he ‘might’ have been responsible for downloading the images when there was no evidence that he had. Additionally, the risk of a future conviction was an unknown risk which the school should not have relied upon as a reason for dismissal.
The case was sent back to the Employment Tribunal to consider the compensation due to the teacher.
Impact on schools
It is an important principle of natural justice that an employee facing a disciplinary hearing should have sufficient notice of the allegations against him/her prior to the hearing in order to prepare a response.
This case serves as a useful reminder to schools that, when dealing with disciplinary processes, they must:
- Ensure a fair disciplinary process in all circumstances.
- Clearly state all of the allegations against the employee in the written notice convening the disciplinary hearing.
- Have a positive, reasonable belief that a particular event took place when relying on that fact to support a dismissal.
- Have a reasonable belief that something may happen in the future when relying on this as a reason to dismiss an employee.
- Ensure that they have adequate processes and procedures in place for managing allegations and conducting investigations, and regularly review their policies, at least annually, to ensure that they are fit for purpose.