Unfair Dismissal: EAT holds that the dismissal of a teacher who was charged with possession of indecent images of children, but not prosecuted, was unfair-K v L

The Employment Appeals Tribunal (‘EAT’) has held that the dismissal of a teacher for having indecent images of children on his computer was unfair. The decision provides useful guidance for employers in similar situations on the limits of relying on reputational damage as a reason for dismissal.

Facts

The Claimant, who was a teacher, was charged by Police after they found indecent images of children on a shared computer at his home. The school suspended him whilst an investigation was launched. The police charged the Claimant but decided not to prosecute him and to instead keep the case under review. The Respondent requested further evidence against the Claimant to enable them to make an informed decision about whether he should continue to work with children, however the evidence provided was heavily redacted so was of little use.

A disciplinary hearing was held in which the Claimant accepted that the indecent images were found on a computer within his home but denied downloading them. The Respondent concluded that there was insufficient evidence to confirm that the Claimant was responsible for the images but ultimately decided that he presented an ‘unacceptable risk to children’. The Respondent further highlighted the reputational risk of continuing to employ the Claimant if it was later shown he had committed the offence and stated that there had been an irretrievable breakdown of trust and confidence. They thereafter dismissed the Claimant.

The Claimant brought a claim for unfair dismissal which was rejected by the Employment Tribunal (‘ET’) and the Claimant appealed.

Outcome

The EAT allowed the appeal and held that the dismissal was unfair on the following grounds.  

The EAT considered whether the letter inviting the claimant to the disciplinary hearing gave notice that he may be dismissed because of potential reputational damage. It held that reputational damage is a septate ground for dismissal which raises separate considerations, and as the invitation letter was focussed on misconduct, the Claimant was given insufficient notice of this ground. The EAT further dismissed the argument that notice was given by including the ground of reputational damage in the investigation report. It emphasised that an employee cannot be dismissed on the basis of a matter that is absent from the initial complaint against the Claimant and the fact it was mentioned in the report, cannot be used to provide a separate basis for dismissal. It therefore concluded that “the dismissal was unfair in that it relied on a ground of dismissal that was absent from the Complaint and for which there was insufficient notice.”

Additionally, the EAT held that the dismissal was unfair as the basis of the decision was that the Claimant might have committed the offence. The Respondent should have been satisfied on the balance of probabilities that he committed the offence, based on the evidence known rather than unknown risks.

Implications for employers   

The decision emphasises the importance of ensuring disciplinary processes are handled fairly and any correspondence is properly drafted. In this case, failing to state the genuine concern of reputational risk as a potential ground for dismissal in the complaint contributed to the finding of unfair dismissal, as the Claimant was not given an opportunity to prepare a defence. The EAT’s emphasis on decision making that takes in account actual evidence rather than unknown risk is also noteworthy.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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