Member Article

Employment cases involving teachers can involve particularly nuanced considerations for schools. It is not easy to balance safeguarding duties with employment law obligations. We look at a recent case which highlights this very issue.

The welfare and safety of children is at the heart of every educational establishment’s ethos, but balancing safeguarding duties with the legal rights of teachers can present difficulties. The approach which may seem correct from a safeguarding perspective may not necessarily constitute a fair dismissal under law. The Court of Session recently ruled in the case of L v K that the dismissal of a teacher was fair for some other substantial reason (SOSR) in circumstances where the evidential threshold for misconduct had not been met.

The Law

In order for a dismissal to be fair under law an employer must demonstrate that:

• it had a fair reason for the dismissal under section 98 of the Employment Rights Act 1996; and
• that it acted reasonably in all the circumstances of the case in treating that reason as sufficient to dismiss.
  
  

There are five potentially fair reasons for dismissal under law: misconduct, capability, redundancy, illegality, and some other substantial reason, normally referred to as SOSR. Dismissals for reputational damage caused by the employee concerned can fall into the SOSR category in circumstances where misconduct, in terms of deliberate wrongdoing, cannot be established.

Reputational concerns

Safeguarding cases clearly carry a reputational concern for both parties. Dismissing a teacher for safeguarding issues carries particularly damning implications for the individual’s career. Schools are required to report any dismissal (or resignation) involving safeguarding issues to the Disclosure and Barring Service and, in many cases, will be required to make a parallel referral to the National College for Teaching and Leadership.

We saw the case of Agoreyo v London Borough of Lambeth highlight the difficulties with suspending teachers in safeguarding cases because the nature of a teacher’s position means that suspension could have adverse implications for their reputations and careers and should not, therefore, be carried out as a matter of course.

However, reputational damage is also a key issue for schools who must, quite correctly, prioritise child welfare and safety. That said, much of the case law surrounding issues of reputational damage hinges on its facts. A dismissal for reputational reasons will normally only be justified if those risks are tangible and realised, not if they are merely a concern or potential outcome. Where there is sufficient evidence of damage to an employer’s reputation, dismissal of the employee concerned may be for the potentially fair reasons of misconduct or SOSR.

L v K

The case of L v K may provide at least some welcome clarification for schools dealing with teachers accused of serious misconduct involving children. The claimant teacher had been charged with possessing indecent images of children. While the claimant admitted that such images had been found on his home computer, the relevant machine was shared with his son and he denied all knowledge of how the images came to be on his home computer. The CPS ultimately made the decision not to prosecute but reserved its right to do so.

The claimant was dismissed following an internal disciplinary process.

The claimant was initially unsuccessful in his claim for unfair dismissal in the Employment Tribunal. The Employment Tribunal found that although the claimant had been charged with misconduct in the disciplinary proceedings, he was dismissed for SOSR, due to concerns that he may have been guilty of the offence and therefore an unacceptable risk to children and a reputational risk to the school. The tribunal was satisfied that the test for a SOSR dismissal had been met.

The Employment Appeal Tribunal disagreed, ruling that because the claimant had been charged with misconduct and the school could not establish a reasonable belief that he was guilty of the misconduct in question, the school was not entitled to dismiss on other grounds and the dismissal was unfair.

The school appealed on the basis that the EAT could not overturn the tribunal’s decision because there had been no error of law. The EAT had taken a different view of the facts which was not its place. Moreover, the dismissal had not been for misconduct, but for SOSR and the EAT had failed to properly consider the particular duties of a school to ensure the safety of its pupils in assessing the reasonableness of a SOSR dismissal.

The Court of Session agreed with the school and restored the tribunal’s finding. It held that, having established that the reason for dismissal was SOSR, the question for the tribunal was whether the school had acted reasonably in proceeding with a dismissal on that basis. The tribunal was entitled to find on the facts that the school had acted reasonably in this case.

Conclusions 

This case provides some reassurance to schools faced with difficult safeguarding investigations which do not meet the threshold for a misconduct dismissal. Disciplinary procedures in safeguarding cases must be approached carefully and with sensitivity and we would always recommend taking specialist advice before proceeding with a dismissal. The facts of each case will be important in determining what is a fair course of action for an employer to take.

More broadly, all employers should be alert to ensuring that the charges set out in the disciplinary process reflect the employer’s full case including concerns such as reputational damage which may be peripheral to a misconduct charge, but may be sufficient to justify dismissal in their own right. Being clear about the range of charges and possible outcomes in a disciplinary process from the outset supports both the substantive and procedural fairness of a dismissal.