The claimant was a teacher and had been employed by the respondent for 20 years.   He had an unblemished record in that employment.   On 30th December 2016 the Police entered his property (where he lived with his son) whereupon they seized his computers.  Three computers were taken, and one was found to have data that was of interest to the Police.  The data in question related to intelligence that there were indecent images of a child/children that had been downloaded.

Shortly after the ‘raid’ the claimant was due to return to this teaching duties.  He did not appear, and enquiries were made.  He met with the head teacher and advised that there was a police enquiry relating to potential indecent images.   Accordingly, the claimant was suspended while the matters were investigated.   The claimant denied from the outset that he was responsible for the images on the computer.  The claimant was subsequently charged with the offence of having an indecent photograph of a child in their possession.   However, having reviewed the information the prosecution service informed the claimant that they decided not to prosecute.

The respondent made enquiries with the prosecution service explaining that the claimant was a teacher and they had to make informed decisions about whether it was appropriate that he continued to work with children.  They sought sight of the evidence gathered against the claimant.  The evidence received from the prosecution service was heavily redacted and of no real use.   In the investigatory meeting with the claimant, the respondent asked if the computer was his and the claimant stated yes but that it was only a back-up and not in use at the time.  He was further asked if he had in his possession a computer with indecent child images to which he responded ‘Obviously, yes’.

A disciplinary meeting was later convened with the respondent finding that the claimant would present an unacceptable risk to children and he could not return to his current teaching post or any other vacancy within the council.  Furthermore, it was outlined that as the respondent was a high-profile public authority it could not take the risk of serious reputational damage by continuing with the employment relationship with the claimant.  For this reason, it was found that there had been an irretrievable breakdown of trust and confidence, so the claimant was dismissed.   The claimant subsequently claimed unfair dismissal.

The claim was rejected at first instance with the claimant appealing to the EAT.    He argued that the respondent was not in a position to decide whether he was guilty of downloading images and he further argued that the respondent could not dismiss him on the mere possibility that he had downloaded the images.  The EAT allowed the appeal on the basis that the dismissal letter only outlined misconduct and not reputational damage as a potential ground for dismissal.   They also outlined that misconduct as a ‘possibility’ is not sufficient for dismissing the claimant.  Furthermore, the balance of probabilities standard should have been used and the respondent would have required some substantial evidence that could be open to scrutiny to support the allegation of misconduct.  As this was not present, the dismissal was unfair.

Practical Lessons

This case demonstrates the difficulties where there are allegations and investigations by outside bodies (usually the police) but lead to no charge and no real evidence forthcoming.  The disciplinary action arose with the fact that the claimant stated that there was an indecent image on a computer that he had in his possession but this was not an acknowledgement of guilt nor was he saying that he had downloaded the image.   This was a real difficulty for the employer and the EAT is making a distinction between the possibility of misconduct and actual misconduct.  For this reason, employers should ensure that the investigation goes to the heart of whether there has actually been misconduct rather than its possibility.
https://assets.publishing.service.gov.uk/media/5f490049d3bf7f0a2769e181/K_v_L_UKEATS_0014_18_JW.pdf

The Scottish Court of Session upheld an appeal by the Education Authority in this case and a case review is available here:
https://www.legal-island.com/articles/uk/case-law/2021/july/l-v-k-2021/