In a claim for unfair dismissal, employers have to first establish the reason for dismissal and the tribunal then has to decide whether they acted reasonably in relying on that reason. In L v K, the Court of Session held that just because another employer might not have dismissed their employee in the same circumstances, that did not mean that the decision to dismiss by this employer was unreasonable.
K, a teacher for 20 years, was charged with possessing indecent images on a computer after a police raid of his home. His son, who lived with him, was also charged. In the end, neither of them was prosecuted although the prosecution service made clear that the matter would be kept under review.
At a disciplinary hearing, K said that he did not know how the images came to be on the computer, but that his son and his son’s friends had access to it. The disciplinary panel concluded that although it could not be certain that K had downloaded the images; equally it could not be certain that he had not been involved. As this raised safeguarding concerns and issues of reputational damage, he was dismissed because he posed an unacceptable risk to children.
K brought a claim of unfair dismissal.
Section 98(1)(b) Employment Rights Act (ERA) 1996 states that, when deciding whether a dismissal is fair or unfair, the employer has to show that it either falls within one of the fair reasons in section 98(2) such as conduct or “some other substantial reason” (SOSR).
Section 98(4) ERA states that once the employer has established the reason for dismissal, the tribunal then has to decide whether the employer “acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee”.
Decisions of lower tribunals
The tribunal held that the reason given for the dismissal was “genuine and substantial” and was potentially fair in the context of the criminal charge and the fact that K had not disputed that there were indecent images on his computer. The test for SOSR under section 98(1)(b) had therefore been met and the decision, while a difficult one, was reasonable under section 98(4) ERA.
The EAT disagreed (weekly LELR 696), holding that the letter of invitation to the disciplinary hearing was based on misconduct and K had not been made aware in advance that reputational damage might be a potential ground for dismissal. On that basis, and given that K’s guilt could not be established, there could not be a dismissal on the basis that he “might” have committed the offence. It therefore substituted a decision of unfair dismissal.
Decision of Court of Session
Overturning the EAT decision, the Court of Session (the Scottish equivalent of the Court of Appeal) held that once the tribunal had decided that SOSR was genuine and substantial, the only remaining question was whether "the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee" under section 98(4).
In this case, the EAT had wrongly proceeded on the basis that the reason for dismissal was K’s conduct in downloading the images, and that therefore the employer was required to establish a reasonable belief in K’s guilt. That was not the case. The tribunal had correctly found that the reason for dismissal was SOSR and given its statutory responsibility to protect children entrusted to them, the employer acted reasonably in dismissing for that reason. K understood the nature of the complaint against him and was aware that he might be dismissed. There was therefore no procedural irregularity. The Court of Session acknowledged that although another employer might well not have dismissed K, that did not mean that the employer's decision to dismiss for SOSR in this case was unreasonable.
It concluded that the EAT was not only wrong in the way that it had categorised the reason for dismissal in this case, it was also wrong to interfere with a decision which was open to the tribunal and was free of legal error.
It can often be a fine line between dismissing an employee for conduct or SOSR, the latter applying where the employee’s role in a breakdown in working relationships is not an issue. That though is not always easy to determine. As the tribunal and Court of Session both noted in this case, it could quite easily have gone the other way.