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06/11/2020

Case update – Finding of unfair dismissal despite employee being found with indecent images on his laptop

James Monk - Colour

This interesting case concerned a teacher (Mr ‘K’) in Scotland whose personal computer was found to have had a number of indecent images of children. Although Mr K accepted that the computer was his however he denied that he had downloaded the images. Mr K said that the images must have been downloaded by his son or his friends but he was unable to identify who had downloaded them.

Due to the fact that Mr K was charged with a criminal offence he reported the matter to his employer. Mr K was then informed that the criminal charges were not going to be pursued against him. Despite this his employer (‘School L’), invited Mr K to a disciplinary meeting and Mr K was dismissed.

Why did L take the decision to dismiss?

There were two key reasons why School L decided to dismiss Mr K:

  1. Risk to reputation – School L was concerned that its reputation could be significantly damaged if Mr K was accused of this or a similar offence in the future. School L were worried that if it became known that Mr K had been found to have indecent images on his computer and they had not taken action to dismiss Mr K it would have reflected badly on them.
  2. Questions over Mr K’s innocence – School L believed that they could not “exclude the possibility” that Mr K had actually committed the offence of downloading the images onto his computer. School L did however acknowledge that Mr K had denied the offence and that he was not being prosecuted for it.

Why was the dismissal found to be unfair?

The letter inviting Mr K to the meeting had alleged misconduct in relation to the child images, not reputational damage. The allegation of reputational damage was therefore an entirely different allegation, requiring different evidence and it was unfair to have found Mr K guilty of this when it had not been put to Mr K in the disciplinary invite letter.

Furthermore it was found School L was unable to show a reasonable belief that, based on the balance of probabilities, Mr K was responsible for the indecent images found on his computer. In this case School L had only found that they could not “exclude the possibility” that Mr K had downloaded the images. This was very different to finding that Mr K had in fact downloaded the indecent images. 

Key points to note

1. It is vital employers are clear about their reason as to convening a disciplinary hearing. It is also important that in the event of disciplinary action being taken against an employee the reason for the disciplinary action should dovetail with the allegations put to the employee in the disciplinary invite letter.  

2. An employer should make a finding of fact on what they believe actually happened. Merely finding there is a possibility that the employee may be guilty of the allegation is not good enough.  

3. Cases that, on the face of it, appear to be ‘open and shut’, rarely are. It is important that employers keep an open mind and take advice on the options available to them. For example in this case it may have been possible, if framed correctly, for the employer to have dismissed Mr K fairly for some other substantial reason.

For advice relating to dismissal or any other area of Employment Law contact James Monk on 0345 20 73 72 8 or email jmonk@thursfields.co.uk

James Monk - Colour

James Monk,

Associate Director, Employment & HR Law

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