Teacher suspected of possessing indecent images of children was unfairly dismissed
A school was not entitled to dismiss a teacher on grounds of reputation risk after he was charged, but not prosecuted, for possessing indecent images of children.
Teacher charged but not prosecuted
In K v L, K, a teacher, was charged by the Police with possessing indecent images of children after they seized a computer from his home. K informed the school he was under investigation and denied he was responsible for the images on the computer. He lived with his son who also had access to the computer. The school suspended him so it could investigate. The Police could not establish who had downloaded the images. The Procurator Fiscal decided not to prosecute him or his son but reserved the right to do so in the future.
As part of its investigation, the school sought clarification from the Police about the case and asked them to share the evidence they had. They responded with a summary of the evidence entirely blanked out, said they could give no view on whether he was a risk to children but confirmed he had not been reported on any similar matter.
The school drew up an investigation report which referred to him being under Police investigation on charges of possessing indecent child images and to the risk of reputational damage. It recommended a disciplinary hearing. However, the letter inviting K to a disciplinary hearing only mentioned his involvement in the Police investigation and made no mention of risk of reputational damage.
Teacher dismissed following disciplinary hearing
At the disciplinary hearing, K accepted the images were on the computer but denied responsibility for them being there. The school concluded there was insufficient evidence to find he had downloaded the images. However, it dismissed him because of an irretrievable breakdown of trust and confidence and unacceptable level of risk of reputational damage. While it could not be shown that he had not downloaded the images, continued employment posed an unacceptable risk to children. It also considered there was a risk of reputational damage if he was prosecuted in future and it became known the school was aware of the allegations but had continued to employ him.
K claimed unfair dismissal, but the tribunal ruled his dismissal was fair. K appealed to the Employment Appeal Tribunal which overturned the tribunal’s decision and ruled his dismissal unfair. It ruled:
- It was not open to the school to dismiss on grounds of reputational risk as the letter inviting him to the disciplinary hearing did not mention this as a potential ground for dismissal. The fact that reputational damage was referred to in the investigation report was not enough. K had not had an opportunity to address this issue at the disciplinary hearing
- This left the school with the misconduct. The Employment Appeal Tribunal agreed with K that it was not open to the school to dismiss on this basis. It had to decide on the balance of probabilities whether he had downloaded the images on the computer. Instead it had decided that unless it could exclude the possibility that K was guilty, it could dismiss on this basis
Could the school have dismissed fairly based on reputational risk?
The Employment Appeal Tribunal went on to consider whether the school could have dismissed K fairly based on risk of reputational damage if it had included this in the disciplinary charges. It decided that dismissal on this basis would still have been unfair.
The case of Leach v Office of Communications demonstrates that dismissals based on reputational damage may be fair, even where the conduct giving rise to the reputational damage is disputed. However, K’s case was different from Leach as:
- In Leach, the employer had received substantial evidence from the Police about the employee’s activities with children. In K’s case, the school received no information and he denied responsibility for downloading the images. There was also no information about the nature of the images
- In Leach, the employer critically analysed the information with the Police and the court accepted that the employer was entitled to rely on this information
- In Leach, there was already press interest in the case and the employer's press advisor had evaluated the risk of adverse coverage and considered it to be real. In K’s case, there was no existing press interest. There was no prosecution and no indication that this would change
- In Leach, the employee had broken the trust and confidence of his employer by hiding the court case from them
K was dismissed in the absence of any information about the nature or seriousness of the images, or about why it had been decided not to prosecute. The Employment Appeal Tribunal concluded the evidence was insufficient to support a dismissal based on reputational damage.
What does this mean for schools and other employers?
When inviting an employee to a disciplinary hearing, employers should ensure they include all the possible grounds for dismissal or other disciplinary action in the disciplinary charges. This enables the employee to know the case against them and to come to the hearing prepared to deal with all the charges.
The Employment Appeal Tribunal’s view that it would not have been possible to dismiss fairly based on risk of reputational damage will be of concern, particularly for schools and other organisations responsible for children or vulnerable adults. While it is possible to dismiss fairly on this basis, it can be difficult, particularly where a decision has been taken not to prosecute. Employers should try to get as much information as possible about the charges from the Police, assess that information critically (so not take it at face value) and give the employee a proper opportunity to put their case. They will also need to assess the likelihood of the information becoming public knowledge as this will have a bearing on whether there is a real risk of reputational damage.
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