Is the 'risk' that a teacher may have downloaded indecent child images enough for fair dismissal?

The facts

The claimant was a teacher and had been arrested when indecent images of children were found on a computer in his home. Although he was initially charged, the police referred the matter to the Procurator Fiscal who decided to take no further action. This left the school with a predicament, as the Procurator Fiscal had not found that there was “no case to answer”, but rather that “no further action” would be taken, and the school was not given access to the evidence possessed by the police.

As a result, the claimant was invited to a disciplinary meeting due to the police investigation, where he explained that his son had received the same letter from the Procurator Fiscal and that both his son and his son’s friends had access to the computer in question and may have downloaded the images.

The chair of the disciplinary hearing decided that there was insufficient evidence to find that the claimant had downloaded the images, but that as this could not be ruled out there was a risk of reputational damage to the school and thus the claimant’s employment would be terminated.

The decision

The original decision reached by the Employment Tribunal (ET) was that the dismissal was fair. However, the teacher appealed and the Employment Appeal Tribunal (EAT) decided that the dismissal was unfair on the basis that:

1. The letter inviting the claimant to the disciplinary hearing had not mentioned the possibility of dismissal due to the risk of reputational damage to the school and thus the claimant had been unable to prepare a case defending this possibility; and
2. It was insufficient for the school to dismiss on the basis that there was a risk of reputational damage without evidence in support of the risk. As there was no evidence to support a finding that the claimant had downloaded the images, it must also be the case that there was no evidence to support a finding that there was a potential risk. The EAT found that the employer must also have reasonable grounds to suspect that the claimant was a potential risk.

Comment

Courts often find cases of this nature difficult to determine because the stakes are high for both parties. On the one hand, a school has a paramount duty to protect the welfare of children and understandably wants to protect its reputation in this regard. On the other hand, however, the consequences for an employee can be career-ending, which seems harsh where they have not had an opportunity to disprove serious allegations.

In this particular case, the EAT has found that the balance lies in the employee’s favour, which is surprising given that indecent images of children had been found on a device in the claimant’s home, and given that he worked with children.

The original tribunal had been inclined to take the view that these grounds were sufficient for a school to decide that there was too great a risk in continuing the employment relationship.

At any rate, this decision shows that schools should approach such cases with a high degree of caution. A school would be well advised to consider whether there are any alternative vacancies that do not involve direct contact with children before terminating employment in these circumstances.

Please note, the information included in this update is correct at the date of publishing.