The Employment Appeal Tribunal (EAT) found that a teacher was unfairly dismissed for misconduct after being charged of being in possession of indecent images of children, but he was not prosecuted. The teacher admitted that a computer in his home contained indecent images but denied responsibility for downloading them. The school found that there was insufficient evidence to conclude that the teacher was responsible for the images but decided that he should be dismissed in any event because allowing the teacher to return to his post would pose an unacceptable risk to children. In the dismissal letter, the school also referred to the “serious reputational damage” if the teacher was subsequently found guilty of this kind of offence and the school had been aware of the allegations.
Allowing an appeal, the EAT found that the complaint as set out in the disciplinary invitation was based solely on misconduct and gave no notice that reputational damage was a potential ground of dismissal. In these circumstances, the employer was bound to decide on whether the misconduct had been established. Had it done so, it would have been bound to conclude that misconduct had not been established. The EAT could not accept that an employee could be dismissed based on a matter that was only mentioned in an investigatory report, not in the actual complaint. Although reputational damage may be regarded as a separate ground of dismissal, it raises separate considerations to those in a misconduct dismissal, which must be made clear from the outset. In this case, the teacher had not been given an opportunity to address the reputational issue in any detail at the disciplinary hearing.
Considering whether a fair dismissal would have been possible, had the school referred to reputational damage in the original complaint as set out in the disciplinary invitation, the EAT found that the scant evidence available meant that the teacher was dismissed in the absence of any information about the nature or seriousness of the images, or the reasons why no prosecution was brought. In view of this, the EAT found that the evidence was insufficient to support a dismissal based on reputational damage.