A fair dismissal from the workplace?

22nd July 2021

Is it fair to dismiss a teacher who has been suspected (but not charged) of possessing indecent images of children?

Sadly this is a question that is asked more often than one would ever imagine. It poses a real predicament for schools and academies in the context of safeguarding children and protecting an organisation’s reputation.

Helpfully though, the Court of session has recently addressed this question in the recent case of L v K.

The case concerned a teacher who had been arrested for possession of a computer containing indecent images of children.  His son, who lived with him, was also arrested but the charges against both of them were later dropped (although the police reserved the right to prosecute).

The employing school commenced internal disciplinary proceedings against the employee. When questioned about whether a computer with indecent images had been in his possession within his house, he answered “obviously yes”, but stated that he did not know how they came to be there. At the conclusion of the hearing it was considered that whilst it could not be concluded that the teacher had downloaded the images, it could also not be confirmed that he had not been involved. It was felt that this gave rise to safeguarding concerns and reputational risk. A risk assessment was conducted and it was considered that the teacher posed an unacceptable risk to children, and he was dismissed.

The teacher brought a claim for unfair dismissal.  In the first instance, the Employment Tribunal found that his dismissal was fair on the grounds of some other substantial reason (SOSR). The Employment Appeal Tribunal (EAT) later found fault with the dismissal as they considered that the SOSR grounds had not been clearly stated.

The matter was referred to the Court of Session, who concluded that in some circumstances, it will be reasonable for an employer to dismiss someone who may be innocent if there is a genuine and substantial reason to justify the dismissal. It considered that this was plainly the case.

This case serves as a useful reminder that whilst the burden of proof for criminal proceedings is “beyond all reasonable doubt”, when it comes to misconduct in the context of employment, employers needs only show that there is a “reasonable belief” in guilt, or, in cases such as this, a genuine and reasonable belief that there is a risk to the safeguarding of pupils and/or the organisation’s reputation.

What should you do?

Where an employee has been arrested, employers should act promptly in commencing their own internal investigation: it is not necessary to await the outcome of a police investigation. In some cases awaiting the outcome of the police investigation or any subsequent court proceedings can put the employer in a more precarious position with it being far harder to dismiss if no charges are brought, or the employee is later found “not guilty”.

Cases such as this need to be dealt with in the context of the specific circumstances, and early advice should be taken to help protect your organisation and its pupils.

Need some guidance on this or any employment law matter, we’re here to help – get in touch.


We’re here for you – contact us today

0300 124 0406

Contact Us