Teacher accused of inappropriate behaviour unfairly dismissed, rules EAT

The Employment Appeal Tribunal (EAT) has ruled that, in K v L, a dismissal for reputational risk, following the arrest of a teacher on suspicion of downloading inappropriate images of children, was unfair.

The claimant in this case was a long-serving teacher who was arrested and questioned following police intelligence that his home computer had been used to download indecent images of children. Although he was later charged, he was not prosecuted, with the Procurator Fiscal deciding to keep the case under review.

The claimant disclosed the ongoing police proceedings to the school and denied the allegations. A decision was taken to implement a disciplinary procedure against him, which led to an investigation into the allegations. As the school could only obtain minimal evidence from the police, the investigation report could not confirm he had downloaded the images. However, it referred to the reputational risk of maintaining his employment.

He was later dismissed on the grounds of gross misconduct as it was believed he posed an unacceptable risk to children. The dismissal also referred to this reputational risk, outlining the danger of it later being discovered that he had been kept on despite the charges and that he could still later be prosecuted. The claimant brought a claim of unfair dismissal to the Employment Tribunal (ET).

The ET dismissed his claim. Whilst they agreed that the reputational damage aspect did not form part of the initial allegations against him, its mention in the investigation report ‘reflected’ grounds for dismissal.

The claimant appealed to the Employment Appeal Tribunal (EAT), arguing that as the initial complaint failed to mention the reputational damage aspect, he could not have later been dismissed for it. He also stated that the school had failed to confirm he had downloaded the images and dismissed him purely on the possibility he had done so.
The EAT allowed the appeal, agreeing that the dismissal had been unfair.

They first addressed the reputational damage aspect, finding that an employee could not be dismissed based on a matter that had arisen in an investigation report. This had not been put to the claimant at the commencement of the disciplinary procedure, and specifically was not included as an allegation within the letter inviting him to the disciplinary hearing. As such, he had not been given a fair opportunity to respond directly to this issue; it should have been treated as a separate consideration.

Despite this conclusion, the EAT considered if, had this issue been raised at the commencement of the disciplinary procedure, it would have been a fair outcome to dismiss him. They ultimately concluded that it still would not have been. There was no detailed evidence, no existing press interest and the claimant had been honest about the accusations.

This is an interesting outcome that addresses the issue of reputational damage head on. Whilst organisations in similar situations may seek to dismiss the employee straight away, they need to make sure that their response is reasonable in the given circumstances.

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