Employment Law Cases
Criminal offences, unfair dismissal and the burden of proof
K v L
The dismissal of a teacher who had indecent images of children on his computer was unfair.
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 rejected K’s unfair dismissal claim and he appealed.
The appeal was allowed.
Firstly, as regards the school’s concern over reputational damage, this was a separate ground of dismissal (from misconduct) and K had not been given notice that this was being relied upon by the school as a basis upon which to dismiss. The letter convening the disciplinary meeting with K had focused on whether he was guilty of misconduct in relation to the child images, not the separate question of what reputational damage might be caused to the school by a continuing association with K whether he was guilty or not. This was not a minor inconsistency of terminology but a different concern requiring different representations. This was enough to render K’s dismissal unfair because it relied on a ground of dismissal that was absent from the complaint of misconduct and for which there had been insufficient notice given.
Secondly, K argued that it was for the school to show that he had committed the misconduct, not just that he might have done. This argument found favour with the EAT. The employer was not entitled to assess matters based on unknown risks, but the evidence known. Quoting from a non-employment case, the EAT held that the standards of ‘reasonableness’ and ‘equity’ in ERA, s.98(4) require an employer to apply the balance of probability, except in exceptional circumstances where there is a substantial doubt. The dismissing officer had relied upon not being able to ‘exclude the possibility’ that K had downloaded the images, which was a far cry from a finding on the balance of probabilities that he actually had. Additionally, while the prospect of reputational damage was an important consideration for the school given the nature of the charges, the spectre of such damage receded when the police said there were no plans to charge K.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0014_18_2404.html
Although some doubt has been cast by legal commentators over whether this is the right decision, there are two distinct elements to this claim and the first element – not telling him in the invite letter that this was a potential reason for dismissal, namely damage to reputation, is a fairly common error on the part of employers.
If they had warned him then based on an earlier EAT decision - Lafferty v Nuffield Health - where the employer’s decision to dismiss to protect its corporate reputation was found to be fair, then the employer may have successfully argued this, especially given the nature of his role.
In relation to the second element, namely the pictures themselves, if the employer had said that on a balance of probabilities, they were probably his, then this would have passed the relevant tests of fairness. After all, they were in his home and on his computer and the burden of proof for an employer is much lower than for the police (which is beyond reasonable doubt). It was their decision to word it differently, namely that they could not discount the fact he might have done it.