336: Why it is vital to give the correct reason for dismissal

In the recent case of L v K, the Court of Session in Scotland (equivalent to the Court of Appeal) has found that a teacher charged with a criminal offence, but not prosecuted, was fairly dismissed due to the school’s safeguarding concerns.

The teacher and his son were charged with possession of a computer containing indecent images of children. No criminal proceedings were brought against either of them but the police reserved the right to do so. Following disciplinary proceedings, the school concluded that there was insufficient evidence to determine whether the teacher was responsible, but neither could it be confirmed that he was not involved. This gave rise to safeguarding concerns which posed an unacceptable risk to children, and he was dismissed.

An Employment Tribunal dismissed the teacher’s claim for unfair dismissal on the basis that the reason for dismissal was ‘some other substantial reason’ (SOSR) and dismissal was within the band of reasonable responses. However, on appeal, the EAT found that the teacher had been unfairly dismissed because the reason for dismissal in the disciplinary hearing letter was based on misconduct and the school did not have a reasonable belief in his guilt.

The Court of Session has now restored the decision of the employment tribunal that this was a fair dismissal. The tribunal had made it clear that the reason for dismissal was SOSR rather than misconduct, meaning that a reasonable belief in the teacher’s guilt was not required. It had concluded that the school no longer had the necessary trust and confidence in the teacher due to the real possibility that he was an offender, which raised serious child protection concerns. Whilst a different employer might have reached a different conclusion, this did not mean that the school in this case had acted unreasonably. The court of session ruled that the EAT should not have interfered with the decision of the employment tribunal, which had applied the correct legal test.

This case illustrates the importance of deciding whether to use SOSR or misconduct when dismissing an employee who has been suspected of a criminal offence, but not prosecuted, or who has been acquitted of an offence. Dismissing for misconduct will only be fair if the employer has a reasonable belief in the employee’s guilt, which may be difficult to assess with certainty. Using SOSR means that the employer can rely on some other factors such as a confidence or reputational risk rather than having to establish reasonable belief in misconduct. In order to minimise the risk of procedural as well as substantive unfairness, it is important to provide written clarification of the precise reasons for investigation and disciplinary action and of the possible outcomes of the disciplinary proceedings.