In L v K the claimant, a teacher, was charged but not subsequently prosecuted with possession of indecent images of children.  The images were downloaded onto his home computer to which his son, who was also charged, had access.  This type of scenario - where there is a concern regarding the behaviour of an employee but "guilt" cannot be proved - can be very difficult for employers to deal with.  In this case there was a risk of dismissing an employee with 20 years unblemished service who was innocent of the charges against him, but there was also a risk in continuing to employ him given the serious child protection concerns.  Reputational risk to the employer was a further issue.

Following a disciplinary hearing the employer had decided there was not enough evidence to conclude that the claimant had downloaded the images.  However, the employer could not exclude the risk that the claimant was responsible and that presented an unacceptable risk to children should he be returned to his post.  The employer also found there was a serious reputational risk should they continue to employ the claimant.  He was dismissed from his post.  He claimed unfair dismissal.

The employment tribunal held that there was some other substantial reason ("SOSR") for the dismissal, that it was fair and that, while the decision to dismiss had been difficult for the employer, it was one that fell within the band of reasonable responses.  However, this judgment was overturned by the Employment Appeal Tribunal (EAT) who took the view that, as the letter inviting the claimant to the disciplinary hearing was based on misconduct and gave no notice of reputational damage as a potential ground of dismissal, it was unfair.  Further, for a conduct dismissal to be fair the employer must have a reasonable belief in the guilt of the claimant.  That would require the employer to have a reasonable belief that the claimant had downloaded the images, and by their own admission they did not.  A dismissal for misconduct could not therefore be fair.

The employer appealed to the Court of Session arguing that the EAT had misunderstood the reason for dismissal which was SOSR and not misconduct.  The EAT had also focussed too much on the reputational damage issue, whereas an important part of the reason for dismissal had been the employer's statutory duty to protect children.  

The Court of Session unanimously allowed the appeal.  The EAT had wrongly categorised the reason for dismissal as misconduct when, as the tribunal had made clear, it was SOSR.  As such the employer did not need a reasonable belief that the claimant had downloaded the images as that was only required in a misconduct dismissal.  The employer had instead concluded it could not maintain the necessary trust and confidence in the claimant due to the possibility that he had downloaded the images.  They were not prepared to take the risk of continuing to employ the claimant bearing in mind the duty to protect the children.  The reputational risk, which the EAT had focussed on, was in fact ancillary to the child protection issue.  In the circumstances, the employer acted reasonably in treating the SOSR as sufficient reason to dismiss even though that carried with it the risk of serious injustice to the claimant.  The EAT should not have interfered with the judgment of the employment tribunal.

A number of lessons can be learnt from the passage of this case through the tribunal and court system.  The first is the importance of clearly setting out the issues the employer is concerned about in the letter inviting the employee to a disciplinary hearing.  The second is the importance of identifying the correct legal reason for dismissal.  On the same facts, an SOSR dismissal was fair but a dismissal based on misconduct was unfair.  Similarly, while the concerns over child protection met the test for an SOSR dismissal, the employer may not have been successful if they had had to rely on safeguarding their reputation as the basis for the defence. 

When dealing with a dismissal for SOSR at the point of making the decision to dismiss it is important that employers carefully consider the argument they are relying upon.  Although an SOSR is often described as a "catch all" that should not be misinterpreted as suggesting it is in some way a soft option to prove before a tribunal - in many cases it is quite the opposite.