The claimant was a teacher employed by the local education authority. The police attended the home of the teacher, which he shared with his son, where the IP address head been linked to online indecent images. Both the claimant and his son had been charged but no criminal proceedings were actually brought against either in the end.

The claimant informed the headmaster, and an investigatory hearing and subsequent disciplinary hearing took place.  At both meetings, the claimant stated he did have the computer with indecent images but stated that he did not know how the images had got onto the computer, stating that his son and his son’s friends had access to the computer.  The outcome of the disciplinary meeting was dismissal as the authority could not confirm that the claimant had not downloaded the images and there was a safeguarding risk.

The ET dismissed the claim for unfair dismissal but the EAT upheld an appeal from the claimant. The EAT made their decision on the basis that ‘reputational damage’ had not been outlined to the claimant at the beginning of the process yet used in the decision. They also stated that as the guilt was not established as it would have to be on the balance of probabilities that the claimant had downloaded the images for the employer to be satisfied of misconduct.

The authority appealed to the Court of Session. The appeal was successful with the Court of Session outlining that the EAT had proceeded erroneously by thinking that the dismissal was misconduct yet, the ET made their decision on the basis of ‘some other substantial reason’.

Taking into account the fact that the claimant had been charged, he had possession of the computer with the incriminating material and the teacher accepted that he had that computer in his possession the authority had a decision to make. They could no longer have the trust and confidence in the teacher as there was a real possibility that he had committed the offence. Therefore, it was whether the decision fell within the band of reasonable responses and the Court of Session agreed with the ET in that the decision did fall within the band of reasonable responses. Accordingly, the appeal was successful with the ET decision being substituted in in favour of the EAT decision.

Practical Lesson

This case demonstrates the distinction in determining whether misconduct or some other substantial reason is a fair reason for dismissal. If this were a misconduct case as the EAT felt, then there would be a need to find on the balance of probabilities that the claimant had committed the misconduct.

However, due to the contextual situation facing a teacher and the safeguarding issue it was clear that it was some other substantial reason and that the possibility that the claimant had committed the offence was a sufficient reason. This is a sensible decision considering the circumstance and the need to ensure that the authority is able to provide proper safeguarding for the children in their schools.
https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2021csih35.pdf?sfvrsn=80e69f33_1