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Unfair Dismissal and Criminality

View profile for Chris Dobbs
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Unfair Dismissal and Criminality

In our last HR Forum on disciplinary and dismissals, we covered the case of K v L, a teacher who lost his job after he was arrested on suspicion of possession of indecent images of children.

Since then, the case has gone through Scotland's Court of Session. Employment Solicitor Chris Dobbs takes a look at the new developments within the case, considering the relationship between employment law and criminal law.

Safeguarding risks

He was never charged criminally having defended the allegation based on his son also having access to the computer.

The matter was, however, investigated by the school who terminated his employment on the basis that, even if he had not personally downloaded or even known about the images, the potential that he had done created a safeguarding risk.

The dismissal also cited concerns about reputational risk to the employer and a breakdown in trust.

What had the EAT found?

At the time of our forum, we provided an update that the EAT had recently found fault with the dismissal.

The original tribunal had rejected the teacher’s claim of unfair dismissal but the EAT ruled that there were issues with the wording of the claimed substantial reason which created a defect.

Was the unfair dismissal upheld?

The case has since been through Scotland’s Court of Session (Scotland’s civil appeals court) who reversed the EAT’s decision.

The Court of Session reached the conclusion that it was clear the school had grounds to dismiss the teacher in this case despite the fact he may be innocent if there is a genuine and substantial reason to justify the dismissal.

A specialist employment solicitor's view

Chris Dobbs says: “This case is another reminder that the test in employment and criminal law are completely different and that, just because no criminal charges are continued against an individual, it does not mean they cannot be fairly dismissed. 

Of course, the converse applies too and an individual can be unfairly dismissed even if a criminal conviction is brought against them.  An employer will still have to show they have a fair reason to dismiss and in most cases have to go through a fair procedure as well.”

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