In K v L, a school teacher, who was charged with possession of indecent images of children but not prosecuted, was found to have been unfairly dismissed on the basis of misconduct.
K had been employed by a school as a teacher for 20 years with an unblemished record. After K did not appear at school as usual, he met with the headteacher and explained that he was being investigated by the police. The school suspended him.
Although there were indecent images found on a computer from K’s home, K denied responsibility for them and he was not prosecuted.
The school tried to obtain information about the case from the Crown but the ‘summary of evidence’ provided was highly redacted, leaving the school with only limited information on which to base an investigation. The school nonetheless proceeded to write an investigatory report and invited K to attend a disciplinary hearing. The invitation explained that the hearing was being held due to K’s involvement “in a police investigation into illegal material of indecent child images on a computer found within your home and the relevance of this to your employment as a teacher”.
The school’s Head of Service conducted the disciplinary hearing. They found that there was insufficient evidence to conclude that K had downloaded the images but determined that he should be dismissed anyway. The letter which dismissed K referred to reputational risk to the school.
K brought a claim for unfair dismissal against this school, which was rejected by the Employment Tribunal. He appealed to the Employment Appeal Tribunal, where Lord Summers found that his dismissal was indeed unfair.
The letter which invited K to a disciplinary hearing made no mention of reputational damage, but only referred to misconduct. Accordingly, the school was bound to decide whether the misconduct had been established and, had the school done this, it was bound to determine that this was not the case. Although reputational damage can constitute a ground for dismissal, it involves different considerations to a misconduct dismissal and must be made clear from the beginning. This did not happen here, so K was not given an adequate opportunity to address the issue of the school’s reputation at the disciplinary hearing.
Lord Summers found that “the dismissal was unfair in that it relied on a ground of dismissal that was absent from the [c]omplaint and for which there was insufficient notice”.
This case stresses the importance of clearly setting out the reason for potential dismissal when inviting an employee to a disciplinary hearing, and the need to provide the employee with a fair opportunity to respond.
