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K was arrested and charged (but not subsequently prosecuted) with possession of indecent images of children which had been downloaded onto a home computer to which his son, who was also charged, also had access. He was a teacher with 20 years of unblemished service.

The employer obtained a summary of the evidence against K, but was not permitted to release it to anyone else, including the decision maker in the subsequently convened disciplinary hearing.

The disciplinary hearing was convened on the basis it was to consider misconduct. The disciplinary invitation did not mention the employer’s concerns about risk of reputational damage should they continue to employ K. The dismissing officer found there was not enough evidence to conclude that K had downloaded the images, but she dismissed him anyway. This was on the basis that:

  • she could not exclude K being responsible for downloading the images
  • risk assessments had concluded it presented an unacceptable risk to children to return him to his post
  • she believed the employer risked serious reputational damage should they continue to employ K and he was subsequently found to have committed a similar offence.

K subsequently brought a claim for unfair dismissal, which was rejected by the Employment Tribunal, who found that his dismissal was fair for some other substantial reason (SOSR). K appealed the decision on the basis that the school had not mentioned SOSR, or the risk of reputational damage, as being potential grounds for dismissal and, if the dismissal was in fact for misconduct, the employer should not dismiss on the basis of being unable to exclude the possibility that misconduct may have occurred.

The decision was overturned on appeal, with the EAT holding that the letter inviting K to the disciplinary hearing gave no notice of reputational damage as a potential reason for dismissal and only focused on misconduct. The EAT further held that an employer is not entitled to dismiss an employee simply because they cannot exclude the possibility of misconduct – it must have “reasonable suspicion amounting to a belief that the employee is guilty of the conduct in question”.

The EAT also concluded that even if K had been given proper notice of the potential for dismissal arising from the risk of reputational damage to the school, the dismissal would (in this case) still not have been fair. This is because there was no detailed evidence available to the employer about the nature or seriousness of the images, nor why the decision had been made not to prosecute. The EAT highlighted that at the time of the dismissal there was no press interest in the case and no indication that would change, nor had K acted in a way that could lead to a breach of trust and confidence with the employer as he had been transparent with the Head Teacher of the school and had co-operated fully with the investigations.

The school lodged a further appeal to the Court of Session, who found that the EAT had erred in its judgment and found 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. It was held that the decision made by the original Tribunal was reasonable, and the fact that the EAT had taken a different view was not enough to overturn the Tribunal’s decision. The claim of unfair dismissal was therefore dismissed.

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