• In the case of K v L, the police found indecent child images on a shared computer within the teacher’s family home. The teacher denied downloading these images, arguing that multiple people had access to the computer.

    He was not prosecuted by the Procurator Fiscal. They did, however, reserve the right to prosecute in the future.

    The respondent school took disciplinary action based on the allegation and the police involvement in the case. However, they did not uphold the allegation regarding the images. Instead the school dismissed the teacher on the grounds of reputational risk – something which had never been a part of the original allegations.

    The teacher issued a claim for unfair dismissal which was initially rejected by the Employment Tribunal.

    The appeal

    The teacher appealed and at the EAT earlier this year, the original decision was overturned on two grounds. Firstly, the EAT noted that an employer must give an employee prior notice of the grounds on which dismissal may occur. In this case, the school had failed to give notice they sought to dismiss on the ground of reputational damage.

    Secondly, the school dismissed the teacher on the basis of an unknown risk that he had downloaded the images and may be prosecuted in future. This was not supported by evidence.

    Comment

    It may surprise people, particularly within the education setting, that even with the possibility that the teacher had downloaded indecent images of children he could still be found to have been unfairly dismissed.

    The EAT has confirmed in this case that an employer must assess a situation on the balance of probabilities unless there is substantial doubt. An unknown risk does not constitute substantial doubt and therefore cannot be used as the basis of a dismissal.

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