The Scottish Court of Session has held that it was fair to dismiss a teacher suspected of viewing child images on his computer despite the fact he was not ultimately prosecuted.
In doing so, the Court of Session overturned an earlier decision of the Employment Appeal Tribunal (EAT) and restored the decision of the original Employment Tribunal (ET) which had held that the school’s decision to dismiss was fair.
Background
The teacher in this case had been charged by the police with possession of indecent images of children under section 52A of the Civic Government (Scotland) Act 1982. He freely admitted that the images were downloaded on to a computer in his possession but denied that he was responsible, noting that his son and his son’s friends also had access to the computer.
After reviewing the evidence, the Procurator Fiscal ultimately decided not to prosecute. At the same time, the Crown sent the teacher a letter informing him that the Crown would keep his case under review and reserved the right to prosecute at a future date.
The school ultimately proceeded to dismiss the teacher because it could not exclude the possibility that he had accessed the indecent child images on the evidence before it. This created safeguarding concerns and a formal risk assessment came to the conclusion that the teacher posed an unacceptable risk to children.
The school also noted the potential risk of serious reputational damage if there was a future prosecution or if the teacher was later to be found to have committed an offence involving indecent child images and the school continued to employ him despite being aware of the risk.
The teacher began proceedings for unfair dismissal. His claim was rejected by the Employment Judge but successful on appeal to the EAT. The school appealed to the Court of Session.
Court of Session decision
The Court of Session held that the EAT had erred in its legal reasoning. The EAT had felt that the school should have assessed whether, on the balance of probabilities, it could conclude that the Claimant was responsible for downloading the indecent child images. Given the lack of evidence, the EAT felt such a conclusion could not be reached. The EAT had also been concerned that the original disciplinary case was based on misconduct and gave no notice that reputational damage was a potential ground of dismissal.
However, the Court of Session found that the EAT had proceeded erroneously by considering “conduct” to be the justification for the dismissal rather than “some other substantial reason”, namely the loss of trust and confidence in the teacher due to the concern he posed an unacceptable risk to children, as well as the potential for reputational risk. As the Court of Session noted, “there was a real possibility that he was an offender” and the school “was not prepared to take the risk”. It also found that adequate notice of the concerns about reputational risk was given to the teacher in the investigation report and during the hearing.
The Court of Session recognised that these were delicate questions and that some schools might have taken a different approach. However, the ET had applied the correct legal tests and reached a reasonable conclusion on the facts. It was therefore not for the EAT to interfere simply because it took a different view.
Comment
The decision by the Court of Session to side with the school’s decision to dismiss will be a comfort to schools who find themselves in the unenviable position of having to evaluate serious child protection risks with only limited evidence.
It is entirely understandable that the school chose to err on the side of caution and prioritise safeguarding considerations. The Court of Session’s decision here seems clearly right. However, there are useful lessons to draw too. It is critical for proper risk assessments to be carried out as to the nature of the on-going safeguarding risk and disciplinary correspondence should clearly set out the potential grounds of dismissal.
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