- Give me one good reason: the importance of establishing the grounds for dismissal
Give me one good reason: the importance of establishing the grounds for dismissal
Give me one good reason: the importance of establishing the grounds for dismissal23rd July 2021 - Published by Kuits Employment team
In the recent case of K v L the Scottish Court of Session overturning the Employment Appeal Tribunal (EAT) has confirmed that the dismissal of a teacher arrested, but not prosecuted, for possession of indecent images of children was fair.
Mr L, a teacher, lived with his son. The police attended their home as part of enquiries into an IP address linked to online indecent images of children. Both Mr L and his son were arrested and eventually charged with possession of a computer containing indecent images of children. No charges were brought against either Mr L or his son but the police reserved the right to do so and retained possession of the computer.
Mr L informed the headmaster of the school where he taught of what had happened. Having taken advice from the local education authority the school held an investigatory hearing, during which Mr L confirmed that he had been in possession of a computer with indecent images on it and that his son (and his friends) had access to that computer. Following completion of the investigation Mr L was invited to a disciplinary hearing. The invitation letter stated that the reason for the disciplinary hearing was the police investigation into the indecent images of children on the computer in his home and its relevance to his employment as a teacher. Mr L was warned that dismissal was a possible outcome of the hearing.
The school found that whilst it could not determine that Mr L was responsible for downloading the offensive images, it could not be certain he was not involved and that, as a teacher, this posed as unacceptable risk to children as well as the school’s reputation. Mr L did not appeal that decision.
Mr L brought a claim for unfair dismissal in the Employment Tribunal. The Tribunal concluded that given the criminal charges brought and that it was not disputed that the images were on the teacher’s computer, the dismissal of the teacher for ‘some other substantial reason’ was within the band of reasonable responses and therefore fair. Mr L appealed that decision and surprisingly the Employment Appeals Tribunal overturned that decision focussing on the fact that reputational risk had not been mentioned in the invitation to the hearing and the focus had been on misconduct. The EAT considered that because his guilt could not be established (even on balance of probabilities) misconduct was not made out and he could not be fairly dismissed because he might have committed an offence.
The school appealed that decision.
The Employment Rights Act gives five potentially fair reasons to dismiss an employee which includes conduct and some other substantial reason. For a dismissal to be fair an employer must firstly establish a potentially fair reason for dismissal and then show that in dismissing the employee for that reason they acted fairly (known as within the range of reasonable responses).
The Court of Session decision
The Court restored the original tribunal decision finding that the EAT had wrongly categorised the reason for dismissal as conduct and not some other substantial reason and interfered with the Tribunal’s decision despite it being legally correct.
The Court found that the Tribunal had made clear Mr L was dismissed for some other substantial reason not misconduct. A misconduct dismissal would have required the school to be satisfied (with reasonable grounds) that Mr L was probably guilty of downloading the indecent images. In dismissing him for some other substantial reason, the school had reached no conclusion on Mr L’s involvement or otherwise in downloading the images but had decided that it no longer had the necessary trust and confidence in him due to the real possibility that he was guilty of the offences alleged. Relevant to this was the school’s statutory duty to safeguard children in its care. The school was also concerned about the reputational risk should Mr L be prosecuted, and the charges become public knowledge, but this was not the main reason for his dismissal. The Court was not concerned that reputational risk was not mentioned in the letter inviting him to the hearing because it was not the school’s primary reason for dismissal, the letter had otherwise made clear why he was invited to the hearing and that there was a risk he might be dismissed. In addition the investigation report which was sent to Mr L at the same time as the invitation to the disciplinary hearing referenced reputational risk.
What does this mean in practice for employers?
Whilst this judgment will primarily be of interest to schools and other organisations responsible for the care of children and vulnerable adults, it highlights the importance of ensuring that letters inviting employees to attend a disciplinary hearing clearly set out the reasons for doing so and ideally with reference to one of the potentially fair reasons for dismissal. Dismissals for reputational risk are rarely straightforward and the conflicting case law in this area shows that each case will largely turn on its own facts. Ultimately the reason for dismissal needs to be carefully considered to ensure that the relevant test for reasonableness will stand up to scrutiny.
Get in touch with an Employment Solicitor at Kuits
For advice on what is required from an employer to establish the grounds of dismissal, please get in touch with Employment Senior Associate Claire Hollins on 0161 503 2992 or firstname.lastname@example.org.