Reputational and safeguarding risks were “some other substantial reason” for teacher’s dismissal

Decision that a teacher was unfairly dismissed when they were not prosecuted for criminal charges is overturned.

In September 2020 we posted an article about the Scottish EAT’s decision that a teacher had been unfairly dismissed when he was not prosecuted for possession of indecent child images on a laptop taken from his home.

Our original article is available on our website, for further background - (Teacher was unfairly dismissed after decision not to prosecute for criminal charges).

In summary, the EAT’s decision relied on three key factors:

• there had been procedural unfairness because the grounds of dismissal (reputational risk) were not set out in the letter inviting the teacher to the disciplinary hearing;
• in the EAT’s view, the decision to dismiss was on the grounds of misconduct and the employer had failed to establish that it was more likely than not (i.e. more than 50% likely) that the teacher had downloaded the images (the teacher denied this and other parties had access to the computer); and
• the employer, the local authority, relied on potential reputational damage as the reason for dismissal, but had not assessed whether reputational risk was likely to have happened or to happen in the future on the balance of probabilities.

The decision was appealed to the Inner House of the Court of Session (‘CoS’) in Scotland (equivalent to the Court of Appeal in England and Wales).

Case: L v K [2021]

The CoS drew attention to the approach taken by the original tribunal. The teacher had brought a claim for unfair dismissal.  Accordingly the tribunal had to address a two stage test; first whether the dismissal was for a potentially fair reason and, if so, secondly, whether the reason for the dismissal fell within the band of reasonable responses open to the local authority and was fair in all the circumstances.

The tribunal had been satisfied that the local authority had grounds to dismiss for ‘some other substantial reason’ (‘SOSR’), and that this stated reason was genuine and substantial and therefore potentially fair. The tribunal then considered if dismissal for SOSR was within the band of reasonable responses open to the local authority given the facts. The tribunal concluded that it was, despite the teacher not being prosecuted, because he had not been exonerated and as such there was an unacceptable risk to children if he continued to work for the local authority. This also created a risk of reputational damage and a breakdown in trust and confidence in the teacher by the local authority. 

Procedurally, the tribunal considered that these issues and the risk of dismissal had been clearly set out in the letter inviting the teacher to a disciplinary hearing. Reputational risk had been referred to in the investigation report which was available to the teacher before the disciplinary hearing took place although it had not been included as a specific allegation.

Reviewing the EAT’s decision, the CoS highlighted that the EAT had erroneously based its decision on the concept that the teacher was dismissed for conduct/ misconduct when the tribunal had made clear the teacher was dismissed for SOSR.  Dismissal for SOSR did not include nor require a belief that the teacher was responsible for, or involved in procuring, the images found on their computer.

The CoS confirmed that the tribunal applied the right test when it considered the dismissal for SOSR to be within the band of reasonable responses.  Whilst other employers may not have dismissed this teacher in these circumstances, that did not mean the decision did not fall within the band of reasonable responses. The CoS pointed out that the EAT could only address errors of law and not fact.  As the right law had been applied by the original tribunal it was irrelevant that the EAT came to a different conclusion.

Addressing the lack of mention of reputational risk and loss of trust and confidence in the disciplinary invitation letter, the CoS considered the tribunal was right to say that the contents of the letter to the teacher made clear the basis of the action being taken against him and that he may be dismissed. The final reason for dismissal was based on the elements identified in the letter and highlighted in the report provided to the teacher in advance of the disciplinary hearing.

Finally, the CoS concluded that there was ample evidence that supported the local authority’s concern over reputational risk given the employer’s duty to safeguard children in its care and the nature of the criminal proceedings, even if these did not result in a prosecution. The CoS commented that reputational risk in these circumstances was “self-evident and hardly required detailed elaboration, not least since it was ancillary to the child protection considerations”.

For all of these reasons the CoS upheld the local authority’s appeal and ordered that the tribunal’s original decision to dismiss the unfair dismissal claim be restored.

Comment

Ultimately, the CoS upheld the original tribunal’s decision because the tribunal was best placed to determine the facts and had not misapplied the relevant legal tests. Although the original tribunal stressed that the decision was very difficult for the local authority, it was entitled to find that the decision to dismiss was one of a number of reasonable responses open to it in these specific circumstances, even if other employers would not have dismissed the teacher.

This case will again highlight to employers that among the key factors to achieving a fair dismissal are making the concerns, issues and consequences of disciplinary matters clear. It is best practice to ensure that the specific allegations and potential grounds for dismissal are clearly set out in a disciplinary invite letter so as to avoid the types of arguments the local authority saw in this case.

In addition, we would caution that employers not rely on reputational risk being ‘self-evident’ by a tribunal as it was in this case – each situation should be considered on the specific evidence and a conclusion should be drawn from this as to whether reputational risk is more likely than not to occur.