Teacher dismissed after child porn found on his home computer was fairly dismissed

Last year we analysed the EAT's decision in K v L which found that a teacher, who admitted having child pornography on his home computer, had been unfairly dismissed. 

The school in that case has now successfully appealed against that decision. 

The Scottish Court of Sessions found that the EAT got it wrong in this case and that, in some circumstances, it will be reasonable for an employer to dismiss someone who may be innocent if there is a genuine and substantial reason to justify their dismissal. 

Facts

Mr K was an experienced teacher who had worked in Scottish schools for 20 years. He had an umblemished record. He was suspected of possessing indecent images of children on his home computer and was suspended. Mr K was interviewed at a police station (along with his son) and both men were subsequently charged. However, they both received a letter from the prosecutor which said it had decided to take 'no further action' although their cases would be kept under review. 

The school, as part of its investigation, asked the Crown for details of the information it had against Mr K to help it decide if he posed a risk to children in their care. They received a redacted copy of the summary of evidence. However, the entire paragraph summarising the evidence was blanked out and the Crown said that it couldn't give a view on whether Mr K was a risk to children. 

During the school investigation, Mr K admitted that the police had found illegal images on his computer. But, he said that the computer was only used as a 'back up' and wasn't in use at the time it was seized. 

Mr K was asked to attend a disciplinary hearing. The letter cited his involvement in a 'police investigation into illegal material of indecent child images on a computer found within your home and the relevance of this to your employment as a teacher'. Mr K denied downloading the images and said that other people (including his son and his son's friends) had access to it. Mr K's solicitor gave evidence about what 'no further action' could mean in the context of a criminal investigation. 

The disciplinary decision maker took the view that there was insufficient evidence to conclude that Mr K was responsible for downloading the images, but she decided to dismiss him because: 1) he presented an unacceptable risk to children: 2) the school could suffer reputational damage if the public ever found out about the allegations against Mr K and the fact it had continued to employ him; and 3) there was an irretrievable breakdown of trust and confidence between the parties.

Mr K claimed unfair dismissal. The employment tribunal rejected his claim and Mr K appealed. He argued that:

1. He should have been informed that the school was considering dismissing him because of the potential risk to its reputation; and  
2. The school was wrong to have dismissed him on the basis that he might have committed the offence and that the law required an employer to satisfy itself, on the balance of probabilities, that he had committed the offence.

EAT's decision

On the first point, the EAT concluded that Mr K should have been informed, at the outset, of the allegations against him. Referring to reputational loss "in passing" during the hearing wasn't good enough. Mr K thought the complaint was about his conduct - and didn't have the opportunity to mount any defence to one of the grounds the school relied on to dismiss him. 

On the second point, the EAT said that the school had already concluded that didn't have enough evidence to conclude that Mr K was responsible for downloading the images. The judge should, therefore, have treated that finding as the end of the matter. 

This meant that his dismissal was unfair. The school appealed.

Court of Session's decision

The Court of Session said that the EAT had been wrong to interpret Mr K's dismissal as a conduct issue and that this had meant it had applied the wrong legal tests to the facts of the case. Mr K had been dismissed for some other substantial reason (SOSR) and this meant that the school didn't need to establish that he was responsible for, or involved in, the images found on his computer.  

The school knew that Mr K had admitted having images on his computer and that his case was being kept under review (which meant that he could be prosecuted at a later date). The school was therefore entitled to proceed on that basis and that his involvement couldn't be excluded. It had a statutory duty to protect the children entrusted to it and had been entitled to decide that it couldn't place the necessary trust and confidence in him, not because he was guilty, but because there was a real possibility that he might be. 

Accordingly, the school was entitled to decide that it wasn't prepared to take the risk that one of its teacher was responsible for having child pornography on his computer. It also had a legitimate concern about the, potential, risks to its reputation had it kept Mr K in post. 

Implications for schools and colleges 

The Court of Session acknowledged that there would be education authorities who wouldn't have dismissed the teacher in the same circumstances and may, for example, have wanted more information about the number and nature of the images first. 

But the question, in the context of a claim for unfair dismissal, is whether the decision to dismiss for the stated reason fell within the 'band of reasonable responses' open to an employer. In other words, just because one employer might have reached a different decision, doesn't mean that the decision you make is wrong or unlawful. 

If you are dealing with a similar situation, the two stand out points of this case are:

• Don't rush into things and make sure that you frame the allegations carefully. The employee should understand exactly what you are alleging they have done and the evidence you have against them. Make it clear if they are fighting to save their job.
• Unless the employee has admitted their guilt, or you have a reasonable belief that the employee is guilty, do not dismiss for misconduct. Instead dismiss for SOSR and set out the reasons for this - such as safeguarding concerns, potential reputation damage etc.

Need help?

Our employment educational specialists are here to help. If you are a school, please contact Jenny Arrowsmith. If you are a college, please contact Helen Dyke.