The Inner House of the Court of Session has held that the dismissal of a teacher who had been charged with possession of indecent images of children, but not prosecuted, was fair where the dismissal was based on "some other substantial reason" (SOSR) in L v K.
The teacher lived with his son and both were charged with possession of a computer containing indecent images of children under section 52A of the Civic Government (Scotland) Act 1982. No criminal proceedings were brought against either, but the right to prosecute was reserved. The teacher informed the head teacher of the school where he was employed, and was then invited to an investigatory hearing at which he confirmed that a computer with indecent child images had been in his possession and that his son had access to the computer. A disciplinary hearing then took place. The letter inviting the teacher to the hearing stated that the reason for the hearing was the police investigation into illegal child images on the computer found in the teacher's home and its relevance to his employment as a teacher. Due to the seriousness of the allegations it was made clear that dismissal might be considered.
At the disciplinary hearing the teacher confirmed that he had the computer in his home, that he did not know how the images had come to be there, and that both his son, and his son's friends, had access to it. Although it could not be confirmed that the teacher downloaded the images, the incident gave rise to safeguarding concerns and to reputational risk. It was concluded that the teacher posed an unacceptable risk to children and he was dismissed. He did not appeal against his dismissal, but subsequently brought a claim for unfair dismissal.
The tribunal held that, in the context of the criminal charge and the fact that the teacher had not disputed that the images were on his computer, the decision to dismiss (taken for SOSR reasons) fell within the band of reasonable responses. The Employment Appeal Tribunal (EAT) took a different view, holding that the dismissal had been by reason of misconduct, and that as the teacher's guilt could not be established, and as there had been no reference to reputational damage in the letter inviting him to a disciplinary hearing, the dismissal was unfair. The Inner House of the Court of Session reinstated the tribunal's decision. The teacher was fairly dismissed for SOSR and the EAT had erred in its categorisation of the reason for dismissal but also interfered with the tribunal's decision.
Take note: The decision in L v K demonstrates the importance of considering the reason for dismissal. Here the decision to dismiss was taken for safeguarding reasons and not on the basis of misconduct where it would be necessary for the employer to have a reasonable belief in the employer's guilt. It was made clear to the teacher that a potential sanction was dismissal and so the procedure to dismiss was carried out fairly.
