In the case of K v L, the EAT ruled that a school teacher, who was charged but never prosecuted for possession of indecent images of children, was unfairly dismissed.
The Claimant had been employed by the Respondent for 20 years and had an unblemished disciplinary record. Following a search of his home which he shared with his son, the Claimant’s computers were seized by the Police upon which it was discovered that indecent images of children had been downloaded. Although he was charged for the offence, the Procurator Fiscal decided not to prosecute as there was insufficient evidence to show that he was responsible for downloading the images.
The School suspended the Claimant and contacted the Crown to seek evidence to help them decide whether it was appropriate for them to continue to employ him to work with children. The evidence from the Crown was too heavily redacted to assist the School in their investigation. Regardless, they proceeded with the disciplinary process and dismissed the Claimant on the grounds of misconduct. In giving their reasons for dismissal, the School stated that as the computer was in the teacher’s possession they couldn’t exclude the possibility that he was responsible for the images, that it would present an unacceptable risk for him to keep working with children and that there was a high risk of reputational damage to the local authority if they failed to act on this.
The teacher raised a claim for unfair dismissal arguing that the School did not mention the risk of reputational damage as being grounds for dismissal prior to the disciplinary hearing. He also argued that the School did not have evidence to decide whether he was guilty of downloading the images or not and that it was not open to them to dismiss him based on just a possibility that he had. His unfair dismissal claim was rejected by the employment tribunal and he appealed to the EAT.
The EAT allowed his appeal and held that the dismissal was unfair. Lord Summers held that the employer had given no notice that reputational damage was a potential ground of dismissal when the Claimant was invited to the disciplinary hearing. Further, the School was not entitled to dismiss on the basis that misconduct was a possibility and was required to be satisfied that there was substantial evidence in support of the conduct, which was lacking in this case.
This case serves as an important reminder to employers to be clear and consistent about what the specific grounds of the disciplinary action are and why they believe that those grounds may warrant dismissal. Reputational damage is quite separate to misconduct and would fall under “some other substantial reason” in terms of the Employment Rights Act 1996. Employers should also be satisfied that they have a genuine and reasonable belief that the alleged misconduct happened and not dismiss an employee based on a mere possibility.