In L v K the claimant, a teacher, was charged but not subsequently prosecuted with possession of indecent images of children. Police Scotland officers attended at his home to carry out enquiries relative to an IP address linked to online indecent images. Subsequently he was charged with possession of a computer containing indecent images of children. His son, who lived with him, was similarly charged. Ultimately no criminal proceedings were brought against either of them.
The teacher informed the headmaster of the school where he was employed as to what had happened. The headmaster sought advice from the local education authority.
Following a disciplinary hearing the employer had decided there was not enough evidence to conclude that the teacher had downloaded the images. However, the employer could not exclude the risk that the teacher was responsible and that presented an unacceptable risk to children should he be returned to his post. The employer also found there was a serious reputational risk should they continue to employ him. He was dismissed from his post. He claimed unfair dismissal.
The ET held that there was some other substantial reason (“SOSR”) for the dismissal and that it was fair. However, this judgment was overturned by the Employment Appeal Tribunal who took the view that, as the letter inviting the claimant to the disciplinary hearing was based on misconduct and gave no notice of reputational damage as a potential ground of dismissal, it was unfair.
The employer appealed to the Court of Session who ruled that the EAT had wrongly categorised the reason for dismissal as misconduct when, as the tribunal had made clear, it was SOSR.
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