Teacher Fairly Dismissed After Police Discontinue Criminal Investigation Into Safeguarding Concerns
The Court of Session overturned an Employment Appeal Tribunal (EAT) decision of unfair dismissal in the case of L v K, following the dismissal of a teacher who had been suspected, but not charged, of possessing indecent images of children.
Read the full case.
The Court of Session reinstated the original decision of the Employment Tribunal which determined that the teacher had been fairly dismissed for ''some other substantial reason" (''SOSR'') under section 98(1)(b) of the Employment Rights Act 1996.
The Case
A teacher was arrested after indecent images of children were found on his personal computer. The police investigation was discontinued on evidential grounds and no criminal action was taken against the teacher. Following an internal investigation by his employer and disciplinary hearing, the teacher was subsequently dismissed.
The Unfair Dismissal Claim
The teacher brought a claim for unfair dismissal. The employment tribunal decided that the reason for the dismissal was SOSR. This was on the basis that he was deemed to pose an unacceptable safeguarding risk, because of the risk of reputational damage that would be associated with his continued employment and a breakdown in trust and confidence.
The tribunal held that it was reasonable for the employer to dismiss the teacher on these grounds. The focus of the dismissal had not been whether the teacher was guilty of the criminal offence and the unfair dismissal claim was therefore dismissed.
What Was the EAT Decision?
The teacher appealed to the EAT, with two of the five grounds of appeal being upheld. The EAT decided that:
- the real reason for dismissal had in fact been misconduct but that as his guilt of the offence could not be established, the teacher could not be dismissed for misconduct simply because he might have committed the offence
- the letter inviting the teacher to the hearing was based on misconduct and gave no notice that reputational damage was a potential ground of dismissal
In the view of the EAT, this rendered the dismissal unfair. The employer appealed against that decision to the Court of Session.
Court of Session Decision
The Court of Session held that the EAT was wrong to determine that the dismissal had been for misconduct and not SOSR. The employer was entitled to determine that it could no longer place trust and confidence in the teacher, not because he was guilty of the offence, but because there was a possibility that he was an offender. In this regard, SOSR did not include a belief that the teacher was responsible for, or involved in, the images being on his computer.
In relation to the letter inviting the teacher to the hearing, this did not mention reputational risk. However, the Court held that a fundamental principle of a fair disciplinary procedure is that an employee should know the case against them. In this case the Court found that when the full circumstances were taken into account the absence of mentioning reputational risk in the letter did not breach this fundamental principle.
The Court therefore found nothing wrong with the original decision of the employment tribunal to reject the claim of unfair dismissal and reinstated that decision.
What Does This Mean For Employers?
The Court of Session's ruling highlights that there is no blanket rule that an employee cannot be dismissed on the basis of a suspicion of wrongdoing. Where employers are dealing with disciplinary cases following the conclusion of a criminal investigation, or parallel to it, it is important to:
- think carefully about the allegations to be considered at a disciplinary hearing and to avoid a broad-brush approach where possible
- consider whether the conduct complained of, or the fact of the arrest, breaches any policies, such as a staff code of conduct
- consider whether reputational damage and breach of trust and confidence are relevant factors