Employment Law Cases
Criminal offences and unfair dismissal
K v L
An employee was fairly dismissed for some other substantial reason when he was charged with a criminal offence but never prosecuted.
K was a teacher with a 20-year unblemished record. Following a tip off, the police attended his home where they found a computer containing indecent images of children. K reported this to the school and was suspended. While he admitted the computer belonged to him, he denied downloading the images or knowing anything about them. He claimed that it must have been his son or someone else with access to the shared computer who’d downloaded the images. The police later decided not to proceed with the charges, although it did not say why and did not formally acquit him. The school continued its investigation and asked for the evidence held by the police. It received a redacted copy with the whole summary of evidence blanked out (with restrictions on who could see it). The school’s investigatory report recommended a disciplinary hearing, based on K’s involvement in the police investigation in the context of his employment, but without referring directly to the school’s concerns over reputational damage as a ground for dismissal. The dismissing manager didn’t uphold the images allegation but dismissed K because of an irretrievable breakdown of trust and confidence, concerned that it couldn’t be shown that he hadn’t downloaded the images, and the risk of reputational damage from continued employment if he were prosecuted in future. A tribunal held that K had been fairly dismissed for some other substantial reason (SOSR). K appealed. The EAT decided that the dismissal was unfair because:
- the real reason for dismissal had in fact been misconduct but that as his guilt of the offence could not be established, K could not be dismissed for misconduct simply because he might have committed the offence, and
- the letter inviting K to the hearing was based on misconduct and gave no notice that reputational damage was a potential ground of dismissal
L appealed arguing that a tribunal’s decision is not flawed simply because the EAT takes a different view, that K’s dismissal was for SOSR not misconduct and that the EAT had not taken account of the school’s concern that it had a statutory safeguarding responsibility to protect children.
Court of Session decision
The appeal was allowed.
The EAT was wrong to determine that the dismissal had been for misconduct and not SOSR. The employer was entitled to determine that it could no longer place trust and confidence in K - not because he was guilty of the offence, but because there was a possibility that he was an offender. Where misconduct is concerned, both employer and tribunal must be satisfied that there is a proper basis to believe that an employee had committed the misconduct - but SOSR dismissals do not need a reasonable belief in the employee’s guilt. K had been dismissed because the school had lost trust and confidence in him because of the real possibility that he had committed a criminal act and that it couldn’t take the risk of continuing to employ him.
In relation to the letter inviting K to the hearing, this did not mention reputational risk. However, the court held that a fundamental principle of a fair disciplinary procedure is that an employee should know the case against them. In this case the court found that when the full circumstances were considered the absence of mentioning reputational risk in the letter did not breach this fundamental principle. K knew he might be dismissed, he understood the nature of the complaint, and the reason for dismissal was based on elements in the letter and highlighted in the investigatory report sent to him. The evidence demonstrated that the school’s principal reason for dismissal was its child protection concerns, not the risk to its reputation.
Link to judgment: https://www.bailii.org/scot/cases/ScotCS/2021/2021_CSIH_35.html
Although the court found that the principal reason for dismissal was child protection issues, there is case law to support dismissal for reputational risk in similar circumstances. In Leach v OFCOM dismissal of a senior executive for some other substantial reason, based on a tip off from the police about his potential involvement in child pornography abroad, was found to be fair based on reputational risk. This was particularly important because of the nature of OFCOM’s role and the same can easily be said for a school, with child protection issues.
This case will not mean that any business where an employee is suspected of offences of this kind can fairly dismiss based on reputational risk. It will depend on the nature of the business, the role that they have and whether or not the company has been mentioned in the press.