Inner House reverses tribunal decision that teacher who had indecent images on computer was unfairly dismissed

The appellant employer, L, argued that the EAT had erred in concluding that the respondent, K, could only have been fairly dismissed if it could be proved that he had downloaded the images himself. No criminal prosecution had brought against him, although the right to prosecute had been reserved.

The appeal was heard by Lord Menzies, Lord Malcolm, and Lord Woolman. The appellant was represented by Miller, solicitor advocate, and the respondent by Bain QC.

Computer shared with son 

The respondent and his son were charged with an offence in terms of section 52A of the Civic Government (Scotland) Act 1982 after police attending their home found a computer containing indecent images of children. Ultimately, no criminal proceedings were brought against either of them, but the respondent informed the headmaster of his school as to what had happened.

At an investigatory hearing arranged by his employer, the respondent stated that he did not recall where he had purchased the computer, that his son had access to it, and that the police had told him it contained illegal material. Disciplinary proceedings were then initiated, at the conclusion of which the view of his employer’s HR department was that it could not be concluded that he had downloaded the images himself, but that there was no confirmation he had not been involved.

It was noted that the incident gave rise to safeguarding concerns and considered that there was a risk of the school’s reputation being damaged if it came to light that they had taken no action against the respondent. A letter of dismissal was subsequently sent to him, which he did not appeal against through internal means.

The respondent made a claim of unfair dismissal in the Employment Tribunal. The tribunal was satisfied that the reason given for the dismissal was genuine and substantial, and that the employer’s decision, while difficult, fell within the band of reasonable responses. The respondent appealed on five grounds to the EAT, which came to the view that he could only be fairly dismissed if the evidence indicated and the employer was satisfied that he was responsible for downloading the images. A decision of unfair dismissal was substituted for the original verdict of the ET.

On appeal to the Court of Session, it was submitted for the employer that the EAT had erred in its approach to the appeal. By the time of the tribunal hearing, the contentions for the teacher included a denial that there were any indecent images on the computer, a position inconsistent with his earlier statements and rejected by the ET. Further, the EAT had not engaged with the issue of the employer’s statutory duty to protect children, which was an important part of its decision to dismiss.

Real possibility

The opinion of the court was delivered by Lord Malcolm, who began: “The EAT proceeded on the erroneous basis that the reason for dismissal was conduct related, namely the downloading of indecent images of children by the teacher. This led to the view that Lord Hoffman’s observations in re B (Children) (2009) were applicable, and that the employer and the ET had to be satisfied that there was a proper basis for believing that the teacher was probably guilty.”

He continued: “In our view once the ET determined that the [reason for dismissal] was genuine and substantial, and leaving aside the lack of notice point, the only remaining question was whether ‘the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee’, a matter to be determined in accordance with the substantial merits of the case. In this regard it can be noted that [this] did not include a belief that the teacher was responsible for, or involved in, the images being on his computer.”

Noting that no decision to prosecute had been taken against the respondent, he added: “It was clear that the teacher had been charged under section 52A with possession of a computer containing indecent images of children. There was no question but that the right to prosecute had been reserved. The teacher had accepted that his computer contained such images. The employer was entitled to proceed on that basis, and that his involvement in their existence could not be excluded.”

He continued: “Being an education authority the employer was conscious of its statutory responsibility to protect the children entrusted to it. In the proven circumstance it decided that it could no longer place the necessary trust and confidence in him, not because it was satisfied that he was guilty, but because there was a real possibility that he was an offender.”

Considering the acceptable range of responses available to the employer, Lord Malcolm said: “The ET rightly described the decision facing the employer as a ‘difficult one’. There may be education authorities who would not have dismissed the teacher. They might take the view that they needed more information, for example as to the number and nature of the images. They might consider that it would be wrong to dismiss someone who could well be innocent.”

He concluded: “Notwithstanding their child protection responsibilities, they might be prepared to take the risk which the employer here considered to be unacceptable. However that such can be described as reasonable responses, does not mean that this employer’s decision to dismiss was unreasonable.”

For these reasons, the appeal was refused.