In November 2020, we reported the Employment Appeal Tribunal’s decision that a teacher suspected of downloading indecent images of children was unfairly dismissed. However, this decision was subsequently appealed to the Inner House of the Court of Session and was overturned, ruling that the dismissal was indeed fair.
In the case of K v L, the Claimant, a teacher with 20 years of unblemished service, was charged with possession of indecent images of children which had been downloaded onto a computer to which his son, who was also charged, also had access. Ultimately, no criminal proceedings were brought against the Claimant, and he was not prosecuted.
The Respondent, a School, decided to dismiss the Claimant as, although they could not determine whether he had actually downloaded the images himself, they could not exclude that this was a possibility and, therefore, the Claimant was a risk to children and continuing to employ him may have brought the School into disrepute.
The Employment Tribunal found that the dismissal was fair for some other substantial reason (SOSR). However, this was overturned upon appeal as the letter inviting the Claimant to the disciplinary hearing gave no notice of reputational damage as a potential reason for dismissal and only focused on misconduct. Further, the School was not entitled to dismiss on the basis that misconduct was a possibility - it must have “reasonable suspicion amounting to a belief that the employee is guilty of the conduct in question”.
The Respondent appealed against the EAT’s decision to the Court of Session, who reversed the EAT’s decision, deeming the dismissal to be fair. In doing so, the Inner House detailed that the EAT had erred in its judgment and found that in some circumstances it will be reasonable for an employer to dismiss someone who may be innocent if there is a genuine and substantial reason to justify the dismissal, even if another employer might have acted differently.
The rulings of the Tribunal, EAT and Court of Session serve as a reminder to employers that SOSR dismissals are rarely straightforward and if an employer intends to rely on reputational damage as a reason for dismissal, they are strongly advised to seek legal advice before doing so.