Dealing with safeguarding allegations against school staff

Matters usually become more complicated when the conduct in question takes place outside of work – the employer’s ability to investigate effectively is often more limited, particularly where there is police involvement.

The recent Scottish case of L v K is an example of an incredibly difficult case where the school came out on the right side. We take a look at the case below, and the key learning points for any schools which find themselves dealing with tricky issues of a similar nature.

What was the background?

A teacher was arrested by the police and charged with possessing a computer with indecent images of children. The teacher’s son was already arrested on suspicion of the same offence. Whilst the teacher accepted that his home computer contained indecent images of children, he denied guilt. The police wrote to him confirming that they would not be prosecuting him at this point, but that they reserved the right to do so.

The school arranged an investigation meeting, at which the teacher maintained his innocence but accepted that a computer with indecent images of children had been in his home. A formal hearing was arranged to consider the school’s concerns relating to potential risk to children, reputational damage, and a breakdown in trust and confidence.

At the hearing, the employee again denied wrongdoing but could not explain how the images had found their way onto his computer (beyond pointing out that his son and friends had access to the computer). His solicitor attended as a witness, but could not confirm why the police had not prosecuted him at this stage.

The disciplinary officer did not consider that there was enough evidence to conclude that the teacher had downloaded the image, but neither could this possibility be excluded. A formal risk assessment was conducted, which concluded that the teacher posed an unacceptable risk to children. The teacher was dismissed.

What did the courts say?

The Employment Tribunal acknowledged that this was a difficult case for the employer to deal with. Their conclusion was that the employer had shown that the dismissal fell into the category of being potentially fair for ‘some other substantial reason’, on the basis that the employee had been dismissed as a result of significant and genuine concerns held by the employer. Turning to the question of whether the employer had acted reasonably in treating its concerns as a sufficient reason to justify dismissing the teacher, they found that it had and rejected the unfair dismissal claim.

The Employment Appeal Tribunal took a different view, finding that the dismissal was focused on the employee’s alleged misconduct. Their view was that reputational damage was not presented as a key consideration in the invitation letter, and that it would not have been a significant issue given the police decision not to prosecute. In view of that finding, the EAT found that it was not sufficient to dismiss the employee on the basis that the employee could have committed the misconduct – the question was whether he was likely to have done so based on the available evidence. They found that the dismissal was therefore unfair.

The Court of Session (the Scottish equivalent of the Court of Appeal) reinstated the original decision that the dismissal was fair. They concluded that once the employer had established a genuine and significant ‘some other substantial reason’, the only question was whether they had acted reasonably in treating that as sufficient to dismiss the employee.

What key points should schools bear in mind in similar cases?

Whilst each case will differ on its specific facts, there are some key considerations which will apply in all cases of this nature:

• Take advice from an early stage. Where serious child protection and/or safeguarding allegations are made, the Local Authority Designated Officer will usually be the first port of call to provide urgent advice on the school’s obligations. Schools should also take advice on their employment law obligations at the outset – key mistakes made at an early stage can jeopardise the fairness of the entire process.
• Conduct a reasonable investigation. Whilst it may have appeared that an investigation was unlikely to uncover further facts, this was an important step to firmly establish existing facts and satisfy the Tribunal that the decision to dismiss was not pre-judged.
• Frame the allegations appropriately. The school lost the case at the initial appeal stage as the Employment Appeal Tribunal perceived that their approach lacked clarity. The EAT felt that it wasn’t clear whether the school’s decision to dismiss was based on the teacher’s misconduct – i.e. whether he was guilty of the alleged criminal behaviour – or the reasons put forward by the school relating to child protection, reputational damage, and trust and confidence. The EAT was also critical of the school seeking to rely on potential reputational damage at the Tribunal hearing, having not highlighted this clearly enough during the internal dismissal process. Although this decision was eventually overturned, it highlights the fine margins when presenting a potential dismissal case.
• A fair hearing with reasonable findings. Allowing the employee to fully present their case, carefully considering the evidence and making findings of fact which are reasonable and consistent with the evidence are essential to any fair dismissal.

How can we help?

Ward Hadaway’s specialist employment solicitors have particular expertise within the education sector, and can provide legal advice to schools on all aspects of HR matters and employment law.  Please do not hesitate to get in touch.