Was it fair to dismiss a teacher accused of possessing a computer with indecent child images, when he wasn't prosecuted; it was unclear who had downloaded the images, basing a decision on a risk that the teacher might have done so?
No, held the EAT in K v L.
The Claimant teacher had been charged after the Police found a shared computer at his home with indecent images, but they couldn't establish who had downloaded those images. The Procurator Fiscal decided not to prosecute, but reserved the right to do so in the future. The employer's enquires with the Crown Office, asking for evidence, produced a restricted letter, with a summary of the 'evidence' entirely blanked out, which was not shared with the dismissing manager.
The School took disciplinary action, basing the allegation around the teacher's involvement in the police investigation in the context of his employment, without referring directly to the employer's concerns over reputational damage as a ground for dismissal. The Claimant denied responsibility for the images. The dismissing manager didn't uphold the images allegation, but dismissed the Claimant because of an irretrievable breakdown of trust and confidence, concerned that it couldn't be shown that he hadn't downloaded the images, and the risk of reputational damage from continued employment if he were prosecuted in future. The tribunal rejected the Claimant's unfair dismissal claim.
The EAT held the dismissal unfair on two grounds, firstly noting that an employer must give an employee notice of the ground on which dismissal may be sought. Reputational damage that is secondary to misconduct is a separate ground for dismissal with distinct considerations; the employee had insufficient notice of that ground.
Secondly, it was not reasonable to dismiss on the basis of a concern that the Claimant might have committed the images offence. The employer was not entitled to assess matters on the basis of unknown risks, but the evidence known. Applying a dictum of Lord Hoffman in a House of Lords family law case (in Re B), in these circumstances the standards of 'reasonableness' and 'equity' in s98(4) ERA require an employer to apply the balance of probability, except in exceptional circumstances where there is a substantial doubt. The risk of a future conviction was also an unknown risk that couldn't be relied upon as a basis for dismissal.
Thanks to Ed McFarlane of Law at Work for preparing this case summary.