K was a teacher and was subject to a police investigation regarding indecent images of children on a computer at his home address. He shared his home with his son, and they were both questioned by police. K explained this to his headteacher, and he was suspended. K was charged in connection with this matter, but the Procurator Fiscal declined to prosecute. However, they also reserved the right to do so in the future. The school contacted the Crown in order to obtain information relating to the case but the information they received was heavily redacted and was of limited use.
At the disciplinary hearing K denied that he was responsible for the images. The school concluded that there was not enough evidence to say for sure that K was responsible for downloading the images, but still decided that dismissal would be appropriate in this case because of an irretrievable breakdown of trust and confidence, the risk posed to the children, and reputational damage to the school.
K then raised a claim for unfair dismissal at the employment tribunal which was unsuccessful. His appeal to the EAT was based on two grounds – the fact that reputational damage was not mentioned until it formed part of the dismissal letter and the fact that he was dismissed for misconduct when the conduct in question, the downloading of illegal images, could not be proven.
The appeal was successful. The EAT held that the invite letter for the disciplinary hearing was specifically based around misconduct and not reputational damage. Therefore, dismissal could not be based on that reason. The school essentially decided to dismiss because K could not exclude all doubt about his innocence. The appropriate test was the balance of probabilities.
The EAT also considered whether K could have been fairly dismissed if there was appropriate notice given about the ground of reputational damage. It concluded that there was just not enough information regarding the case made available to the school for them to make that decision.
Court of Session
The employer has now successfully appealed to the Inner House of the Court of Session. The EAT was particularly focused on the fact that K was dismissed for conduct that could not be proven. However, the Respondent argued that the conduct and whether or not it could be proven that it had taken place was not the reason for dismissal so this analysis was not relevant. The real issue was a breakdown of trust and confidence, and the school reminded the Court that the Crown had reserved the right to prosecute. While it could not be proven that the Claimant was guilty, there was a real possibility that a criminal offence had taken place. It was also stressed that a major factor for the decision was the school’s legal obligation to protect the pupils, a fact which was not analysed in much depth by the EAT.
The Court held that while some employers may have wanted more information or would have been content to take on the risk of keeping K in employment, that did not make his dismissal unfair. In short, the difficult decision to dismiss fell within the range of reasonable responses available to the employer in these circumstances.
This case emphasises the point that the tribunal recognises that there is always a range of acceptable responses to a situation. If the proper procedures have been followed and an employer is clear as to why the decision was made it is likely that the decision will stand up in a tribunal.
If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.