K was a teacher with an unblemished 20-year career with his employer (L), a council operated school. In December 2015 his property was raided by the police who seized a computer that was found to contain indecent images of children.
K subsequently met with his head teacher and confirmed that he was involved in a police enquiry into potential indecent pseudo-images. He was promptly suspended pending investigation.
K was charged with being in possession of an indecent photograph or pseudo-photograph of a child, but after the matter was referred to the Crown prosecutor the decision was taken not to prosecute. K learned of this in February 2016, but the official letter confirming the decision not to prosecute was not issued until April 2016. The official letter indicated that there would be no further action taken at the time, but that the case would be kept under review. This left the school in a difficult position regarding K’s ongoing employment, so it made enquiries of the Crown explaining that it needed to understand the information that had been obtained so that it could make an informed decision as to whether it was appropriate for K to continue to work with children.
When the Crown responded it provided a redacted summary of the evidence and instructed that it was only to be used for the purposes of carrying out an investigation and was not to be used or disclosed for any other purpose. Within the letter, the Crown confirmed that K had not been reported on any analogous matter and that it would not give a view on whether K was a risk to children.
The school arranged an investigatory meeting, during which K confirmed that the computer seized by the police was his but that it was not in use at the time and was a backup. When asked if he had in his possession a computer with indecent child images he answered “obviously yes”.
A disciplinary hearing was convened and the invitation identified the complaint against K as follows:
“The reason for the hearing was due to you being involved in a police investigation into illegal material of indecent child images on a computer found within your home and the relevance of this to your employment as a teacher.”
At the hearing K accepted that indecent images had been found on his computer, but said he did not know how they had got there. He denied downloading them and pointed out that he shared the house with his son and his son’s friends (all of whom had access to the computer). He said his son’s friends could have downloaded the images.
Whilst the disciplinary officer decided that there was insufficient evidence upon which to conclude that K was responsible for downloading the images, it was still determined that K should be dismissed. The disciplinary outcome letter confirmed that the decision to dismiss had been taken because a risk assessment had concluded that K would present an unacceptable risk to children if he returned to teaching or any other position with the council. It was stated that staff of the council had daily contact with children and vulnerable adults and that it would cause the council serious reputational damage if it was discovered in future (by subsequent prosecution or otherwise), that it had continued to employ K despite knowing of the allegations against him.
K brought a claim for unfair dismissal that was rejected in the first instance by the Employment Tribunal. However, his appeal to the Employment Appeal Tribunal (EAT) was successful.
In reaching its decision the EAT drew two important conclusions:
1. The letter inviting K to the disciplinary hearing relied solely on misconduct and gave no notice that reputational damage was being relied on. As a result, the school was bound to reach a finding based on misconduct alone and on the facts as found, it was bound to conclude that misconduct had not been established.
In reaching this conclusion, the EAT held that although the investigation report referred to reputational loss, the fact was that it was not relied upon in the disciplinary invite letter. The EAT said that while the investigation report could be used to interpret the disciplinary invite letter, it couldn’t be used to supply a wholly separate basis for dismissal. Furthermore, it held that reputational damage secondary to misconduct is a totally separate ground of dismissal and could not be inferred from a misconduct allegation. It had to be raised separately if reliance was to be placed on it at the disciplinary hearing. While addressing this issue, the EAT also raised some wider concerns regarding the wording of the allegation in the disciplinary invite letter, albeit that it ultimately concluded that nothing turned on it.
2.That an employer is not entitled to dismiss on the basis that misconduct is a possibility that couldn’t be excluded.
Even though the EAT held that reputational damage could not be relied upon as a reason for dismissal, as it recognised that its finding in this regard might be the subject of an appeal it went on to consider the school’s decision on this allegation. In so doing the EAT relied heavily on the judgment in the case Leach-v-Office of Communications. In that case, an employee had been arrested and charged with sexually abusing children whilst abroad in Cambodia. His employer was aware of the Cambodian allegations but satisfied itself of the employee’s innocence. However, the employer subsequently dismissed the employee due to the risk of reputational damage, when it was subsequently warned by the Metropolitan Police Child Abuse Investigation Command that the employee posed a risk to children and also alerted the employer to new evidence of alleged paedophile activity in Cambodia.
The EAT distinguished the two cases as follows.
- In Leach the police had provided the employer with detailed information to support the allegation of misconduct, where in this case the school had very little to go on. K had denied being responsible for the images, had presented credible alternative explanations and there was very little information available about the nature of the images in question.
- In Leach the employer was able to analyse the evidence with the police and the employee, whereas in K v L the school wasn’t able to undertake the same critical analysis. The information available was very limited and had not been available to the dismissing officer.
- In Leach there was active press interest, whereas here there was none, nor was there any indication that there would be any change to the decision not to prosecute K.
- Finally, in Leach the employee had concealed the Court case from his employer and misled the press regarding his employer’s identity. In addition, he had used his employer’s email to protest against the Cambodian authorities and there was evidence he had returned to Cambodia purportedly for a diving holiday after the initial allegations were raised, even though the area he had visited was not known for diving. In K’s case there was no such evidence.
The EAT held that, although Leach demonstrated that dismissals based on reputational damage may be fair even though the conduct giving rise to the reputational damage is disputed, the current case had a far narrower basis. As a result, there was insufficient evidence to support K’s dismissal based on reputational damage.
Although the legal rationale behind this decision is clear, it is difficult not to feel sympathetic towards the school which was in an invidious position. The practical reality of cases of this nature is that they are always challenging to deal with.
What then, are the practical conclusions that can be drawn?
- Always ensure you specifically and separately identify any disciplinary allegations you may wish to rely upon. Although allegations may appear connected, raise them in the alternative to be on the safe side.
- If you are going to rely on an allegation of reputational damage ensure there is a clear evidential basis to support it.
- Where police evidence is involved, ensure you obtain as much information as possible and that it is put before the disciplinary panel so that it can be properly scrutinised.
- Any concern regarding potential future wrongdoing must be substantiated – mere possibility alone will not suffice.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at November 2020.