Jo Moseley is a Senior Associate in Irwin Mitchell’s Employment Team

You'd think the answer to this is a definitive 'yes'. However, the Scottish EAT's decision in K v L reveals how difficult it is for schools/colleges to navigate the tension between balancing their statutory duty to safeguard the children/students in their care with employment law.

Facts

Mr K was an experienced teacher who had worked in Scottish schools for 20 years. He had an umblemished record. He was suspected of possessing indecent images of children on his home computer and was suspended. Mr K was interviewed at a police station (along with his son) and both men were subsequently charged. However, they both received a letter from the prosecutor which said it had decided to take 'no further action' although their cases would be kept under review. 

The school, as part of its investigation, asked the Crown for details of the information it had against Mr K to help it decide if he posed a risk to children in their care. They received a redacted copy of the summary of evidence. However, the entire paragraph summarising the evidence was blanked out and the Crown said that it couldn't give a view on whether Mr K was a risk to children. [For some reason, the school's HR adviser didn't share this evidence with the Head (who was helping to conduct the investigation) or to the person who chaired the disciplinary hearing.]

During the school investigation, Mr K admitted that the police had found illegal images on his computer. But, he said that the computer was only used as a 'back up' and wasn't in use at the time it was seized. 

Mr K was asked to attend a disciplinary hearing. The letter cited his 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'. Mr K denied downloading the images and said that other people (including his son and his son's friends) had access to it. Mr K's solicitor gave evidence about what 'no further action' could mean in the context of a criminal investigation. 

The disciplinary decision maker took the view that there was insufficient evidence to conclude that Mr K was responsible for downloading the images, but she decided to dismiss him because: 1) he presented an unacceptable risk to children: 2) the school could suffer reputational damage if the public ever found out about the allegations against Mr K and the fact it had continued to employ him; and 3) there was an irretrievable breakdown of trust and confidence between the parties.

Mr K claimed unfair dismissal. He argued that the school should have told him, in advance of the disciplinary hearing, that they were concerned about its reputation. The tribunal accepted that the reason for his dismissal was different to the allegations put to him at the disciplinary hearing, but that the issue had been touched upon in the investigatory report and at the disciplinary hearing and his dismissal was not, therefore, unfair. Mr K appealed.

Decision

The EAT in Scotland concluded that Mr K should have been informed, at the outset, of the allegations against him. Referring to reputational loss "in passing" during the hearing wasn't good enough. Mr K thought the complaint was about his conduct - and didn't have the opportunity to mount any defence to the actual ground the school relied on to dismiss him. This inevitably, meant that Mr K had been unfairly dismissed.

Implications for schools and colleges

Situations like this put schools/colleges in an almost impossible situation. They have a duty to safeguard the pupils in their care and, won't want to retain anyone that potentially poses a risk to them. Imagine the furore if a member of staff is suspected of sexually assaulting a child/student and it later emerged that a school/college knew of earlier allegations and had decided to keep them on.

The fact is schools/colleges can't compromise their safeguarding duties and will have to make difficult decisions. The EAT said that employers can't fairly dismiss someone because they 'might have' committed the offence they are accused of and must decide, on a balance of probabilities, if it did happen. In reality, if you are worried that there's even a remote chance that the allegations are true, an unfair dismissal may be the lesser of two evils.  

If you are in this situation, we recommend that you consider the following:

  1. If you frame allegations as misconduct, you will not be able to fairly dismiss anyone if you have no evidence beyond the fact that they have been charged. In most cases you won't want to wait until the trial as delaying making a decision can undermine the implied duty of trust and confidence and give the employee the opportunity to resign and claim constructive unfair dismissal. It's also an expensive option as you will have to continue to pay them during their suspension. 
  2. If you rely on the potential reputational risk to your school/college make this clear in the allegations. If you decide to dismiss, it will be for 'some other substantial reason'. 

Leach v The Office of Communications is one of the leading cases on reputational damage and demonstrates that a dismissal can be fair, even if the conduct giving rise to the reputational damage is disputed by the parties.  In that case, the employer was told by the police that Mr Leach posed a serious threat to children (they believed he had sexually abused children in Cambodia). His employer was concerned that if the allegations against him turned out to be true and became public knowledge, they would suffer reputational loss if they continued to employ him. It also said he should have told them about the allegations against him and that this had damaged the relationship of trust and confidence between them. 

The Court of Appeal acknowledged these cases are difficult for employers. It said:

"It sticks in the throat that an employee may lose his job, or perhaps in practice any chance of obtaining further employment, on the basis of allegations which he has had no opportunity to challenge in any court of law - or may indeed have successfully challenged. On the other hand, it has to be recognised that there are cases where it is necessary for employers to be warned of facts which indicate that an employee (or potential employee) is a risk to children, even in the absence of any conviction."

It said that employers will only be acting reasonably if they critically examine the information provided by a third party such as the police. In this case, the employer had been entitled to treat it as reliable and Mr Leach's dismissal was fair.

Jo Moseley is a Senior Associate in Irwin Mitchell’s Employment Team

You may also be interested in these articles:

Sponsored Video

Advertisers

Upcoming FE Events

Advertiser Skyscrapers

Latest Education News

Further Education News

The FE News Channel gives you the latest education news and updates on emerging education strategies and the #FutureofEducation and the #FutureofWork.

Providing trustworthy and positive Further Education news and views since 2003, we are a digital news channel with a mixture of written word articles, podcasts and videos. Our specialisation is providing you with a mixture of the latest education news, our stance is always positive, sector building and sharing different perspectives and views from thought leaders, to provide you with a think tank of new ideas and solutions to bring the education sector together and come up with new innovative solutions and ideas.

FE News publish exclusive peer to peer thought leadership articles from our feature writers, as well as user generated content across our network of over 3000 Newsrooms, offering multiple sources of the latest education news across the Education and Employability sectors.

FE News also broadcast live events, podcasts with leading experts and thought leaders, webinars, video interviews and Further Education news bulletins so you receive the latest developments in Skills News and across the Apprenticeship, Further Education and Employability sectors.

Every week FE News has over 200 articles and new pieces of content per week. We are a news channel providing the latest Further Education News, giving insight from multiple sources on the latest education policy developments, latest strategies, through to our thought leaders who provide blue sky thinking strategy, best practice and innovation to help look into the future developments for education and the future of work.

In Jan 2021, FE News had over 173,000 unique visitors according to Google Analytics and over 200 new pieces of news content every week, from thought leadership articles, to the latest education news via written word, podcasts, video to press releases from across the sector, putting us in the top 2,000 websites in the UK.

We thought it would be helpful to explain how we tier our latest education news content and how you can get involved and understand how you can read the latest daily Further Education news and how we structure our FE Week of content:

Main Features

Our main features are exclusive and are thought leadership articles and blue sky thinking with experts writing peer to peer news articles about the future of education and the future of work. The focus is solution led thought leadership, sharing best practice, innovation and emerging strategy. These are often articles about the future of education and the future of work, they often then create future education news articles. We limit our main features to a maximum of 20 per week, as they are often about new concepts and new thought processes. Our main features are also exclusive articles responding to the latest education news, maybe an insight from an expert into a policy announcement or response to an education think tank report or a white paper.

FE Voices

FE Voices was originally set up as a section on FE News to give a voice back to the sector. As we now have over 3,000 newsrooms and contributors, FE Voices are usually thought leadership articles, they don’t necessarily have to be exclusive, but usually are, they are slightly shorter than Main Features. FE Voices can include more mixed media with the Further Education News articles, such as embedded podcasts and videos. Our sector response articles asking for different comments and opinions to education policy announcements or responding to a report of white paper are usually held in the FE Voices section. If we have a live podcast in an evening or a radio show such as SkillsWorldLive radio show, the next morning we place the FE podcast recording in the FE Voices section.

Sector News

In sector news we have a blend of content from Press Releases, education resources, reports, education research, white papers from a range of contributors. We have a lot of positive education news articles from colleges, awarding organisations and Apprenticeship Training Providers, press releases from DfE to Think Tanks giving the overview of a report, through to helpful resources to help you with delivering education strategies to your learners and students.

Podcasts

We have a range of education podcasts on FE News, from hour long full production FE podcasts such as SkillsWorldLive in conjunction with the Federation of Awarding Bodies, to weekly podcasts from experts and thought leaders, providing advice and guidance to leaders. FE News also record podcasts at conferences and events, giving you one on one podcasts with education and skills experts on the latest strategies and developments.

We have over 150 education podcasts on FE News, ranging from EdTech podcasts with experts discussing Education 4.0 and how technology is complimenting and transforming education, to podcasts with experts discussing education research, the future of work, how to develop skills systems for jobs of the future to interviews with the Apprenticeship and Skills Minister.

We record our own exclusive FE News podcasts, work in conjunction with sector partners such as FAB to create weekly podcasts and daily education podcasts, through to working with sector leaders creating exclusive education news podcasts.

Education Video Interviews

FE News have over 700 FE Video interviews and have been recording education video interviews with experts for over 12 years. These are usually vox pop video interviews with experts across education and work, discussing blue sky thinking ideas and views about the future of education and work.

Events

FE News has a free events calendar to check out the latest conferences, webinars and events to keep up to date with the latest education news and strategies.

FE Newsrooms

The FE Newsroom is home to your content if you are a FE News contributor. It also help the audience develop relationship with either you as an individual or your organisation as they can click through and ‘box set’ consume all of your previous thought leadership articles, latest education news press releases, videos and education podcasts.

Do you want to contribute, share your ideas or vision or share a press release?

If you want to write a thought leadership article, share your ideas and vision for the future of education or the future of work, write a press release sharing the latest education news or contribute to a podcast, first of all you need to set up a FE Newsroom login (which is free): once the team have approved your newsroom (all content, newsrooms are all approved by a member of the FE News team- no robots are used in this process!), you can then start adding content (again all articles, videos and podcasts are all approved by the FE News editorial team before they go live on FE News). As all newsrooms and content are approved by the FE News team, there will be a slight delay on the team being able to review and approve content.

 RSS IconRSS Feed Selection Page