K v L UKEATS/0014/18
In this case, the Employment Appeal Tribunal (“EAT”) in Scotland held that a teacher, who had been charged with possession of indecent images of children, but not prosecuted, had been unfairly dismissed on the basis of misconduct.
The Claimant, K, a teacher, was questioned by the police in 2016 after reports that indecent images of children had been downloaded by an IP address associated with him. K explained to the school’s headmaster that he was the subject of a police investigation and that he denied responsibility for the indecent images on a computer seized from his home. He was charged with possession of indecent images. A decision was subsequently made not to prosecute him although he was not formally acquitted.
K’s school received inadequate information from the police and therefore could only conduct a very limited investigation into the matter. The school nevertheless produced an investigatory report and followed a disciplinary procedure. The charge against K in the disciplinary invitation was his “being involved in a police investigation into illegal material of indecent child images on a computer found within [his] home and the relevance of this to [his] employment as a teacher”. Ultimately K was dismissed for misconduct. Despite no clear evidence that he was responsible for downloading the indecent images, the school stated in its decision that he posed a risk to the children at the school as well as a reputational risk to the school if he was later prosecuted and found guilty.
On appeal, the EAT held that the dismissal was unfair, because:
- K was given no notice that reputational damage was a ground for dismissal: the disciplinary hearing related solely to misconduct stemming from the criminal charge and investigation. Therefore, K was not given the opportunity to address the issue of reputational damage during the disciplinary procedure;
- the school applied the wrong standard of proof in dismissing K for misconduct. Under s.98(4) ERA 1996, the school was required to apply the ‘balance of probabilities test’ in order to determine whether the situation merited dismissal. Instead it had unreasonably applied a test that entitled the school to dismiss K unless all doubt as to his guilt had been excluded. The school should have followed the Burchell guidelines which require employers to have a “reasonable suspicion amounting to a belief that the employee is guilty of the conduct in question”, a belief the school could not have had given the lack of concrete evidence that K was responsible for downloading the images; and
- with regard to the school’s reliance on potential reputational damage in the case of future prosecution, the school acted unreasonably in relying on unknown risks (i.e. a hypothetical future prosecution), rather than evidence available at the time of dismissal.
This decision emphasises the importance of carefully articulating the allegations against an employee in advance of a disciplinary hearing, stating all of the facts relied on and all of the reasons why those facts may warrant dismissal. Where the ultimate reason relied on for dismissal does not match that put to the employee during a disciplinary process, this may result in a finding of unfairness.