In the recent case of K v L UKEATS/0014/18/JW the Claimant was a teacher charged by the police with possession of indecent images of children under section 52A of the Civic Government (Scotland) Act 1982. The Claimant 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 Claimant 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 decided to convene a disciplinary meeting and asked the Crown for a copy of the relevant evidence. However, the Crown was only willing to provide a heavily redacted version which did not assist the school’s disciplinary case.
The school nonetheless proceeded to dismiss the Claimant because it could not exclude the possibility that he had accessed the indecent child images on the evidence before it. The school also noted the potential risk of serious reputational damage if there was a future prosecution or if the Claimant 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 Claimant began proceedings for unfair dismissal. His claim was rejected by the Employment Judge but successful on appeal to the Employment Appeal Tribunal (EAT).
The EAT noted that the original disciplinary case was based on misconduct and gave no notice that reputational damage was a potential ground of dismissal. In such circumstances it was not reasonable for the employer to focus on reputational damage. 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, it could not have reasonably reached that conclusion – the school was not entitled to dismiss an employee on the basis that misconduct was a possibility that could not be excluded or where there was no guarantee of the teacher’s good conduct.
There are important lessons to draw from this case. Firstly, it shows that it is vital that disciplinary correspondence clearly sets out the potential grounds of dismissal – it is not open for the employer to switch tack from e.g. “conduct” to “reputational damage” without properly warning the employee.
Secondly, it shows that the proper test for dismissal in cases involving indecent child images is the same “balance of probabilities” test as in other misconduct cases. Schools are understandably extremely wary of continuing to employ someone who may pose a risk to children. However, where the evidence is insufficient to reach a clear conclusion any dismissal will run the risk of being judged unfair.