The Court of Session has ruled that an education authority had not acted unfairly when it dismissed a teacher after indecent images were found on his computer.
The issue arose after police attended the teacher’s home to carry out inquiries relating to an IP address linked to online indecent images.
He was charged with possession of a computer containing indecent images of children, but no criminal proceedings were brought.
The teacher informed the headmaster of the school where he was employed who, in turn, contacted the local education authority.
A disciplinary hearing was instigated where the teacher confirmed he did not know how the images had come to be there and both his son, and son’s friends, had access to it.
The employer’s head of HR concluded it could not be confirmed that the teacher had not been involved in downloading the images, which gave rise to safeguarding concerns and to reputational risk. A letter of dismissal was issued.
The teacher’s claim of unfair dismissal was rejected by the Employment Tribunal (ET) because the authority’s decision fell within the band of reasonable responses.
The Employment Appeal Tribunal (EAT) reversed that decision on the grounds that the lack of notice in the letter of invitation to the disciplinary hearing that reputational damage was a potential ground of dismissal and referring only to misconduct, rendered the dismissal unfair.
It held that as the teacher’s guilt could not be established, the alleged misconduct should not have been taken into account; the only standard of proof was that of balance of probabilities and he could only be fairly dismissed if the evidence indicated that he was responsible for downloading the images.
The Court of Session has reinstated the original decision in favour of the authority.
It held that the EAT had proceeded on the erroneous basis that the reason for dismissal was conduct related, namely the downloading of indecent images of children by the teacher and that the employer and ET had to be satisfied that there was a proper basis for believing the teacher was probably guilty.
However, as the ET had made clear, the teacher was dismissed for “some other substantial reason”.
It was clear the teacher had been charged with possession of a computer containing indecent images of children.
The right to prosecute had been reserved, the teacher accepted his computer contained the images and his involvement in their existence, could not be excluded.
The authority decided that it could no longer place the necessary trust and confidence in the teacher, not because it was satisfied that he was guilty, but because there was a real possibility that he was an offender.
There was an additional concern as to reputational risk but there was nothing to support the submission it was the main reason for dismissal.
The ET correctly recognised the issue was whether the decision to dismiss for the stated reason fell within the band of reasonable responses and the conclusion it did, was free of error or legal flaw.
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Teacher’s dismissal over indecent images on computer was not unfair
L v K
Court of Session (Inner House, Extra Division)
6 July 2021
 CSIH 35