In a helpful decision for employers, the Court of Session has recently held in L v K that a teacher charged for possessing indecent images on a home computer was fairly dismissed on the grounds of some other substantial reason (SOSR). This was despite no prosecution taking place, no evidential finding that he was responsible for the images and the issue of reputational damage not having been included in the letter convening the disciplinary hearing.
Background facts
Police Scotland officers attended the Teacher’s home and removed a number of computers. He was charged with possession of a computer containing indecent images of children. His son lived with him and was also charged in the same terms. No criminal proceedings were brought against either but the Teacher was sent a letter stating that the right to prosecute was reserved. The Teacher informed the school’s headmaster where he worked who in turn sought advice from the local education authority. Its HR department sought details from the COPFS as to why there had been no prosecution and the level of risk posed. A redacted summary of the evidence was sent along with an explanation that the information requested would normally be provided only to the General Teaching Council for Scotland.
Following an investigation and hearing, the Teacher was summarily dismissed. In reaching that decision it was determined that:
- it could not be concluded that the Teacher had downloaded the images;
- equally it could not be concluded that he was not involved;
- the Teacher posed an unacceptable safeguarding risk to children following a risk assessment; and
- there was a potential reputational risk.
The Teacher did not appeal internally but made a claim of unfair dismissal.
ET decision – dismissal was fair
The ET noted that the decision was a difficult one but that dismissal fell within the band of reasonable responses and was fair for SOSR. The SOSR basis was adequately reflected in the letter inviting the Teacher to the disciplinary hearing despite reputational concerns not being mentioned.
EAT decision – dismissal was unfair
The EAT overturned the ET’s decision based on two successful grounds of appeal:
- The dismissal was for misconduct and it was procedurally unfair that the letter of invitation to the disciplinary hearing gave no notice of reputational damage as a potential ground of dismissal.
- The Teacher’s guilt could not be established on the balance of probabilities and in view of that it was unfair to dismiss because he might have committed the alleged misconduct.
Court of Session – dismissal fair – ET decision restored
The EAT had made a mistake in taking the reason for dismissal as being conduct when it was clear the ET accepted it was SOSR, one of the potentially fair reasons for dismissal, and that the SOSR was genuine and substantial. The decision of the ET was restored by the Inner House of the Court of Session having regard to the following factors in particular:
- reputational concerns did not fall within the basis of the asserted SOSR and in any event was not the main reason for dismissal;
- overall the ET detected no unreasonableness in the procedure adopted or flowing from any deficiencies in the disciplinary letter;
- having regard to its statutory responsibilities the employer was entitled to effectively not take the risk that the Teacher was an offender;
- the employer could no longer place the necessary trust and confidence in the Teacher; and
- the ET applied the correct test to unchallenged findings of fact in the ET and an appeal can only be on a question of law so it is of no relevance than an appellate court might have taken a different view itself.
What does this mean?
Balancing the respective interests of the employee and employer in these types of situations is always particular vexed when safeguarding issues are involved.
This decision provides some welcome Court of Session guidance on how to approach these situations. Needless to say each case turns on its own unique set of facts but the availability of a fair SOSR dismissal in circumstances whereby misconduct cannot be established will be reassuring to educational employers.
That said, this case shows the potential weakness of procedures whereby the allegations put to the individual do not match the grounds for dismissal and the importance of taking the time to frame allegations correctly, to re-investigate and re-convene the hearing if additional matters come to the surface. Reputational damage or the potential for reputational damage alongside issues of trust and confidence are often live and central issues in summary dismissals but are complex to handle and employers would be well-advised to put those allegations to the employee at the outset and ensure there is an adequate evidential basis for their findings.
If you have any questions about what this means, please get in touch with our specialist Employment team.
