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Can you dismiss simply based on an allegation?

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Posted by Steph Marsh on 22nd July 2021

It turns out that in Scotland, yes you can!

Whilst it may seem slightly odd, in the case of L v K, the Court of Session agreed with the Tribunal’s initial decision and allowed a school to dismiss a teacher based on an allegation, which didn’t result in criminal proceedings, to be dismissed.

Background

K was a teacher, and unfortunately for him, was visited by Police Scotland. The Police subsequently confiscated various laptops and computers belonging to K, and upon investigation, found that they had a number of indecent images on them.

Of course, this meant that K was charged with possession of a computer containing indecent images of children, but the complicating factor was that he lived with his son. As K’s son also had access to the computer, he was similarly charged, however no criminal proceedings were actually brought against either.

K dutifully informed his employer of the situation. As was standard procedure, K’s employer carried out an investigatory hearing whereby it was held that whilst there was no evidence that K had downloaded the images, and indeed the Police were no longer prosecuting, it could not be confirmed that he had not committed those acts.

Subsequently, the school became concerned with safeguarding risks and dismissed K for “some other substantial reason” as it felt that he posted an unacceptable risk to the children.

Judgment

K was understandably not happy with the decision and whilst he did not appeal internally, decided to bring a claim for unfair dismissal. Unfortunately for him, the Tribunal agreed with the school as it felt that they acted reasonably in their decision making.

Again, K wasn’t happy with the response and therefore appealed to the Employment Appeal Tribunal (“EAT”). This time however, things went his way…the EAT held that he could only be fairly dismissed for misconduct if the school had an honest and genuine belief that he was responsible for the images, which was not necessarily the case, and therefore the dismissal was unfair.

The school didn’t take that finding kindly and appealed to the Court of Session (“CoS”). The CoS stated that the EAT had misinterpreted the reason for dismissal; it was not for misconduct but rather for “some other substantial reason” and overturned the decision.

The CoS acknowledged that other employers may have dealt with the situation differently – ultimately the amount and severity of the images were not known at the time but appreciated that the school felt the risk to its children was unacceptable.

The CoS agreed that the employer acted reasonably and as such ordered that the claim for unfair dismissal was dismissed.

What does that mean for employers?

Whilst the judgment was given in Scotland, employers should be aware that in some situations they may be able to dismiss employees even if they are innocent (or at the very least, criminal proceedings are not continued) providing they believe there is a genuine and justifiable reason to do so.

If you would like any advice on how to deal with any potential dismissals, please get in touch with a member of the team on 01752 292201.