Siobhan Murphy
Posted on 10 Aug 2021

Can an educational establishment dismiss a teacher who had been suspected, but not prosecuted, of possessing indecent images of children?

Background

The Claimant was employed by a local authority (the Respondent) as a teacher in a maintained school. The police attended his home, where he resided with his son, to carry out enquiries relating to an IP address linked to online indecent images. Computers seized from the Claimant's home were found to contain indecent images of children. Ultimately, neither the Claimant nor his son were prosecuted, but the right to prosecute was reserved.

The Claimant asserted that he was unaware of how the images came to be on the computer and confirmed that other individuals had access to the same. He subsequently notified the Respondent of the incident, who commenced a disciplinary investigation. During the investigation and a subsequent disciplinary hearing, the Claimant accepted that the computer with indecent child images had been in his possession, but denied any involvement or knowledge as to how the images came to be there.

At the conclusion of the disciplinary hearing, the view of the Respondent was that it could not conclude that the Claimant had downloaded the images himself. However, it could similarly not be confirmed that he had not been involved. This gave rise to significant safeguarding concerns and to reputational risk, particularly if the Claimant was later prosecuted. A formal risk assessment was completed, which came to the conclusion that the Claimant posed an unacceptable risk to children. As such, a letter of dismissal was issued.

The Claimant did not exercise his right to an internal appeal against that decision, but subsequently brought a claim for unfair dismissal. The issues were:

  1. whether there was a fair reason for the dismissal under section 98(1)(b) of the Employment Rights Act 1996 (ERA 1996); and
  1. whether the decision to dismiss was within the band of reasonable responses under section 98(4) of the ERA 1996.

The Respondent defended the claim and contended that the Claimant was dismissed for some other substantial reason (SOSR). There was the potential for reputational risk to the employer and a breakdown in the trust and confidence which the Respondent was required to have in the Claimant.

What did the Employment Tribunal (ET) hold?

The ET was satisfied that the reason given for the dismissal was genuine and substantial and was potentially a fair one. In the context of the criminal charge and the fact that it had not been disputed that the images were on the Claimant's computer, it concluded that the test for SOSR of a kind justifying dismissal under section 98(1)(b) of the ERA 1996 was met. The ET held that the decision, whilst a difficult one, fell within the band of reasonable responses. The Claimant appealed this decision to the Employment Appeal Tribunal (EAT).

What did the EAT hold?

The EAT's view was that the Claimant could only be fairly dismissed if the evidence indicated (and the Respondent was satisfied) that he was responsible for downloading the images.  The Respondent could not dismiss simply because an allegation had been made. There had to be some evidence to support it. The available information here was seen to be insufficient to support a fair dismissal. A mere risk of harm was not enough for dismissal on the ground of reputational damage. A decision of unfair dismissal was substituted and the case remitted to the ET for further procedure.

The Respondent subsequently appealed the EAT's decision to the Scottish Court of Session. A decision made by this court has binding effect on other Scottish courts, but does not have binding effect in English courts. Crucially however, it might be found by English courts to be so persuasive an authority as to be readily followed.

What did the Court of Session hold?

The Court held 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 the dismissal. This was plainly such a case. The ET was not disabled from rejecting the claim of unfair dismissal in the absence of proof that the teacher committed a criminal offence. The EAT had erred not only in its categorisation of the reason for dismissal but also wrongly interfered with the ET's decision, which was free of legal error. 

What can employers take from this?

Whilst this decision will not automatically bind English Courts and Tribunals, it is likely to be persuasive to future cases determining similar issues. As such, it is a welcomed decision for educational establishments and recognises the importance of a school's obligations and desires to protect and safeguard its pupils. Where the primary reason for a dismissal is to enable compliance with the statutory duty to protect the children in its care in a situation where trust and confidence in the teacher has been lost, a dismissal is capable of being fair even where the individual is not prosecuted of an offence.

Nonetheless, it is important to note that other Judges may take a different view on what is reasonable. In this case, the ET determined that the dismissal was reasonable and, given that there was no legal error with this finding, subsequent Courts and Tribunals were not entitled to interfere. On slightly different facts, and provided the correct legal tests are still applied, an ET will still be entitled to come to a different conclusion when determining what is reasonable.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy to discuss any issues you are facing.