Teacher not prosecuted for possessing indecent images of children was fairly dismissed

In the case of L v K, a teacher was fairly dismissed, according to the Court of Session, where he had been charged with possession of indecent images of children, but not prosecuted, overturning the previous decision of the Employment Appeal Tribunal (EAT).

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 of the police enquiry. 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.

The teacher was later invited to a disciplinary hearing. The allegations largely focused on the teacher’s involvement in the police investigation and whether he was guilty of downloading the images. The invitation letter did not refer directly to the school’s concerns over reputational damage as a potential ground for dismissal, although this was discussed later at the hearing.

During 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 hearing 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 chair also referred to the risk of serious reputational damage if the teacher were to be accused or found guilty of the offence, or a similar offence in the future.

Furthermore, whilst the teacher had denied the offence and had not been 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 ET and EAT

The teacher brought a claim of unfair dismissal, which was rejected by the Employment Tribunal (ET).

The ET first considered whether there was a potentially fair reason for dismissal. There are five potentially fair reasons for dismissal set out in legislation. These include specific reasons, for example, conduct, redundancy, or capability. In addition, an employer may rely on a dismissal being fair for “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held” (commonly known as “some other substantial reason” or SOSR).

The ET held that there was a potentially fair reason for dismissal, namely SOSR.

The ET then considered whether the decision to dismiss, in these circumstances, fell within a band of reasonable responses open to a reasonable employer. Although the ET noted that this was a difficult decision, it was satisfied that the decision to dismiss fell within the band of reasonable responses.

The teacher appealed this decision to the EAT. In particular, he argued that the risk of reputational damage was not listed as an allegation against him within the notice he received convening the disciplinary hearing 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.

The EAT ruled in favour of the teacher. In particular, the EAT found that the letter inviting the teacher to the disciplinary hearing focused on his alleged misconduct, rather than reputational risk. As such, it was unfair to rely on reputational risk as a ground for dismissal in this case. The EAT, working on the basis that the reason for dismissal was one of misconduct, also noted 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 insufficient evidence, on the balance of probability, 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 Court of Session

The school appealed the decision of the EAT to the Court of Session. In particular, the school argued that:

• The decision of an ET is not flawed simply because the EAT takes a different view
• The reason for dismissal was for SOSR and not misconduct
• The EAT had focused too heavily on reputational damage, as opposed to the school’s statutory responsibility to protect children, which was an important part of the reason for dismissal.

The Court of Session allowed the appeal, overturning the decision of the EAT, and reinstating the ET decision that the teacher had been fairly dismissed.

In reaching this decision, the Court of Session found, in particular, that:

• The ET enjoys a wide margin of appreciation as to the tests of fairness and reasonableness. A decision of an ET is not flawed simply because the EAT takes a different view.
• The ET had been clear that the reason for dismissal in this case was SOSR and the EAT had been wrong to instead focus on conduct. This led the EAT to erroneously find that the school was required to conclude, on the balance of probability, that the teacher was guilty of downloading the images in order to justify the decision to dismiss as reasonable.
• The EAT had focused too heavily on the issue of reputational damage and had not engaged with the school’s concern that it had a statutory responsibility to protect children and is required to have trust and confidence in its teachers. Once it was clear that the reason for dismissal was SOSR, and not conduct, there was no need to conclude, on the balance of probability, that the teacher was responsible for, or involved in, downloading the images on his computer. The school decided that they could no longer place the necessary trust and confidence in the teacher, not because they thought he was guilty, but because there was a genuine risk that he might be. The school was not prepared to take that risk.
• Whilst the school was concerned about the risk of reputational damage, there was nothing to support the view that this was the main reason for dismissal.
• The failure to refer directly to reputational risk within the hearing invite letter did not render the dismissal procedurally unfair in these circumstances. The teacher was aware of the case against him and that he may be dismissed. Reputational risk was also mentioned in the investigation report and discussed at the hearing.

The Court of Session were unable to identify any flaw in the analysis and reasoning given by the ET. The EAT had erred in its categorisation of the reason for the dismissal and were not entitled to interfere with the finding of the ET simply because they took a different view. The ET order that the claim of unfair dismissal is dismissed was restored.

Impact on schools

The decision of the Court of Session is reassuring for schools. Whilst it was acknowledged in the case that another employer may have reached a different conclusion, the rationale for dismissal, given the potentially serious safeguarding risk and the school’s responsibility to protect children, was found to be reasonable.

The case does, however, highlight the difficulties employers face in dealing with cases of this nature and the importance of following a fair and reasonable disciplinary procedure.

In particular, schools should:

• Ensure a fair disciplinary process is followed, in accordance with the ACAS Code of Practice on Disciplinary Procedures and any internal disciplinary procedure
• Carefully consider the wording of a letter inviting an employee to a disciplinary hearing and clearly set out all of the allegations within it
• Where a decision to dismiss is reached, carefully consider the reasons for dismissal, and set these out clearly within the outcome letter
• 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.