The Court of Session in Scotland (equivalent of the Court of Appeal in England) has found that a teacher who had been charged by the police with possession of indecent images of children but not prosecuted was fairly dismissed for “some other substantial reason”.
The facts
Police attended K’s home, which he shared with his son, and removed several computers. K, a teacher, and his son were both subsequently charged with possession of a computer containing indecent images of children. No criminal proceedings were brought against either of them, but the police reserved the right to prosecute.
Following investigatory and disciplinary meetings, at which the teacher accepted that he had possessed a computer that had contained indecent images, and explained that he, his son, and his son’s friends also had access to the computer, the teacher was dismissed. The dismissal letter set out that while it could not be determined if it was the teacher who had downloaded the images, neither could it be concluded he had not done so. This, his employer said, gave rise to safeguarding concerns and reputational risk. The reputational risk was, at least in part, that if he was prosecuted in the future it might come to light that his employer had taken no action at this point. A formal risk assessment concluded that the teacher represented an unacceptable risk to children. The teacher claimed he had been unfairly dismissed.
The employment tribunal found K had been fairly dismissed. They accepted this was a dismissal for some other substantial reason of a kind justifying dismissal (often known as a “SOSR dismissal”), and they had acted reasonably in dismissing for this reason. The tribunal held that, while the decision to dismiss was difficult, it did fall within the band of reasonable responses.
The teacher appealed to the EAT, which upheld his appeal, finding that the dismissal was unfair. The EAT took the view the reason for the dismissal was misconduct: the former employer’s letter inviting the teacher to the disciplinary hearing was based on misconduct and gave no notice that reputational damage was a potential ground of dismissal. As the former employer did not have a reasonable belief on the balance of probabilities that the teacher had committed the misconduct the dismissal was unfair. The possibility he had committed the misconduct was not enough.
The former employer appealed to the Inner Court of Session. It submitted that the reason for the dismissal was SOSR, not misconduct, and that the EAT had focussed on reputational damage and had not engaged with the employer’s concern that it had a statutory responsibility to protect children. The employer also argued that the decision of a tribunal is not flawed just because the EAT takes a different view.
The judges unanimously allowed the former employer’s appeal, finding that the EAT had wrongly characterised the reason for the dismissal as being misconduct, rather than SOSR. The dismissal was because the employer had lost trust and confidence in the teacher because of the real possibility that he had committed a criminal offence and it could not take the risk of continuing to employ him. While the former employer was also concerned about reputational risk the principal reason for dismissing him was the lack of confidence and the child protection concerns. In terms of procedural fairness, the teacher knew he might be dismissed, he understood the nature of the complaint against him and the reason for dismissal based on the letter inviting him to the hearing and the investigation report. The Inner Court of Session also held that the EAT had interfered with the tribunal’s decision, which had been free from legal error. The Court reinstated the tribunal’s decision that the dismissal had been fair.
What does this mean for employers?
Dismissing employees where there is a real possibility that they are an offender is difficult. Employers facing this situation will need to decide which fair reason to opt for if they wish to dismiss: SOSR or misconduct. The differences between these two reasons is highlighted well by the facts of this case: in a SOSR dismissal the employer does not have to establish that it reasonably believes an employee is guilty of misconduct. Where there are unproven criminal issues at play it may be preferable to use the SOSR route relying on a lack of trust and confidence and reputational risk as well as any sector specific issues (such as protection of children in this case). SOSR dismissals are far from straightforward, so ensuring a fair process is adopted is crucial.
For an earlier decision where a SOSR dismissal, based on the reputational risk of continuing to employ an employee facing serious criminal charges was found fair.
