Teacher was unfairly dismissed after decision not to prosecute for criminal charges

Unfair to dismiss for reputational damage when this was not put to the teacher as a formal allegation.

On the principles of natural justice, an employee facing disciplinary action should be able to understand the precise allegations against them so that they can meaningfully put their case in their own defence. The Acas Code of Practice on Disciplinary and Grievance Procedures (which employers must take into account) also requires that the employee has sufficient information about the alleged misconduct to prepare to answer the case against them.  It is therefore vital that all allegations are set out in the letter inviting the employee to the disciplinary hearing.

A recent case in the EAT in Scotland has highlighted the importance of this simple principle even in very difficult cases.

Case: K v L

A school teacher was charged by the police with possession of indecent images of children but the Procurator Fiscal (the Scottish equivalent of the Crown Prosecution Service) decided not to prosecute.

After learning of the charge and subsequent decision not to prosecute, the employer began a disciplinary process. The invitation to the disciplinary hearing described the complaint against the teacher as being ‘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.’

The teacher denied responsibility for downloading the images that were found. The teacher lived with their son and explained that their son and many of their son’s friends had access to this computer.

The school ultimately decided to dismiss the teacher and gave several grounds for doing so, including:

• The teacher had been charged by the police with an offence of indecent child images being found on a computer in their home;
• Although the decision had been not to prosecute, the prosecutors advised that there was an obligation on them to keep cases under review and they reserved the right to prosecute the case against the teacher at a future date;
• The teacher admitted to the disciplinary panel that a computer located in their household contained indecent images of children;
• The employer was unable to exclude the possibility that the teacher was responsible for the indecent images being downloaded;
• There was a risk to the employer local authority’s reputation if it continued to employ the teacher and a future prosecution or similar action were to occur; and
• There had been an irretrievable breakdown of trust and confidence between the teacher and the employer.

The teacher brought a claim for unfair dismissal which was dismissed by an employment tribunal. The teacher appealed to the EAT.

The appeal

The EAT agreed with the teacher that the dismissal was unfair.

Unclear allegations

The EAT commented that it was against natural justice to state a ground of dismissal in the dismissal letter that had not been clearly set out in the invitation to the disciplinary meeting. Although reputational issues had been raised by the school’s investigation report and had been touched on briefly during the disciplinary hearing, they were not put formally to the employee and the employee had not commented on them at the hearing. The EAT made clear that any allegations must be clearly expressed so that an employee can adequately prepare themselves to answer the case. The EAT disagreed with the tribunal’s view that it was sufficient grounds for dismissal to rely on an issue identified in an investigatory report that was not addressed in the disciplinary allegations.

Finding guilt on the balance of probabilities

The EAT also agreed with the teacher that the dismissal on conduct grounds was unfair as it was not based on a finding of misconduct on the balance of probabilities. The decision maker had dismissed the teacher partly on the basis that, although there was not enough evidence to prove who had downloaded the images, the possibility that the teacher had done so could not be excluded. The EAT made clear that this was the wrong standard of proof. In disciplinary procedures, as in civil proceedings, allegations will be proven if they are more likely than not to be true. In other words, there is more than a 50% chance that the alleged conduct occurred. Here, the school had wrongly decided to dismiss because there remained a possibility (however small) that the teacher had downloaded the images.

Relying on reputational damage

The EAT drew comparison between this case and that of Leach v Office of Communications [2012]. In Leach the employer had been warned by the police that the employee had engaged in paedophile activity in Cambodia. The employer fairly dismissed the employee because of the risk to its reputation in continuing to employ him. However, in Leach the employer had access to information from the police which indicated it was more likely than not that the conduct had taken place and the employee had attempted to conceal the matter from his employer. There was also significant interest from the national press about the case.

In contrast, in this case, the school had not found evidence to establish that the conduct was more likely than not to have occurred and had no evidence to suggest reputational damage was likely. When dropping a prosecution, the Procurator Fiscal commonly reserves the right to prosecute should further information come to light. This was no indication that such a future prosecution would happen and damage the employer’s reputation.

Wrigleys' comment

Disciplinary cases involving criminal allegations can be extremely difficult for employers to deal with. Please see further information on handling such cases particularly in a school context in our previous article: “Dealing with school employees who are being investigated by the police” (link here). We have also looked at the interaction between internal and external investigations in a recent case report: “When disciplinary and criminal proceedings interact” (link here).

The employer in this case might have been able fairly to dismiss on the basis of reputational damage to the organisation if it had properly put this point to the employee and considered the likelihood of reputational damage based on the facts of the case. This would depend however on whether there was found to be a real risk of the matter becoming public knowledge and actual harm to the employer’s reputation as a consequence.