Man Fairly Dismissed as a Result of Police 'Suspicions'

Background

The Employment Appeal Tribunal recently heard the case of A v B, in which it was to determine whether dismissal by a public authority of one of its employee’s had been fair or unfair. Disclosure was made by police to the employer that the employee had been engaged in paedophile activity in Cambodia, notwithstanding his acquittal by a Cambodian court, and that he therefore posed a continuing risk to children. The Employment Appeal Tribunal held that the employer, which had not accepted the disclosure uncritically, and had taken reasonable steps to assess its reliability, had been entitled to treat the information as reliable, and to dismiss the employee on the basis of it in order to avoid potential reputational damage. The employee’s job did not require any contact with children.

History

The employer was a public authority, and was required to have regard to the interests of children in the performance of certain responsibilities. The employee was a career civil servant and had worked in various government departments throughout his career. In March 2005 he accepted a job offer to begin working in a job that was at a relatively senior level, and which had an international aspect that involved him in foreign travel. However, it did not involve him working with children or on issues specifically relating to children.

In the interval before his new job was due to start the employee travelled to Cambodia. He had been there previously in January 2004 and on that occasion he had become involved with an orphanage centre in Phnom Penh. His case was that his interest in the centre was entirely humanitarian. During his return visit in April 2005 he was arrested on suspicion of having sexually abused one or more children at the centre. His case was that the allegations against him were untrue and malicious.

He was released on the same day, but was not permitted to leave Cambodia pending further investigations. On 26 April 2005, the Phnom Penh Municipal Court Prosecutor's Office, after having interviewed the supposed complainants, directed that the file be 'held without processing', and the employee was allowed to leave the country. He then started work in May 2005.

Back in Cambodia an appeal was brought against the decision, leading to two further hearings in an appellate court, and a final decision in the Supreme Court. On each occasion the original decision of the prosecutor's office was upheld, and the Supreme Court in Cambodia endorsed the employee's acquittal. On 22 May, the employee received a letter from the public protection unit of the metropolitan police acknowledging 'that you have been totally exonerated of any criminal wrongdoing' and offering him assistance in dealing with any continuing attention from the media.

Police Involvement

On 27 November 2007 two officers from the Metropolitan Police Child Abuse Investigation Command (CAIC) asked for a meeting with a senior member of the employer. In a telephone conversation with the two CAIC officers, they raised allegations against the employee going substantially beyond what the employer already knew. The CAIC offered to provide limited disclosure to the employer of their concerns.

At a meeting on 13 December, CAIC made a formal communication, which Y noted as follows:

(i) In 1999 [the employee] was convicted for falsely obtaining prescription drugs and a bus pass. The employer asked what the drugs [were] although [CAIC officer] did not know.

(ii) In 2000, [the employee] purported to be a doctor from Surrey in order to gain access to children in Cambodia. Posing as a doctor he indecently assaulted a child. This allegation was made by an adult.

(iii) Between 2004/5 [the employee] has been frequenting brothels in Cambodia known to supply children.

(iv) In 2006 [the employee] dispensed with property in Cambodia which was found to contain children's clothing and condoms'.

The CAIC believed that the employee posed 'a continuing threat to children'; that the officers did not regard the employee's acquittal as significant, because of the deficiencies of the Cambodian criminal justice system; that the employee had been making e-mail requests to the police under the Freedom of Information Act 2000, implying that the requests were endorsed or supported by the employer; and that CAIC were concerned that the employee was using his position with the employer to get opportunities to travel to Cambodia. The employer was told that the CAIC had much more information in respect of the employee and that it was not only in relation to the issues in Cambodia that he was considered to be a risk to children.

As a result the employee was dismissed. The employee's internal appeal was unsuccessful. He brought proceedings for, along other things, unfair dismissal. The employment tribunal dismissed his claim. The employee appealed to the Employment Appeal Tribunal.

The employer argued that the employee's dismissal was on the basis of the breakdown of the fundamental relationship of trust and confidence between the parties following the CAIC disclosure that he was a continuing threat to children. It contended that the dismissal was effected in a fair and reasonable manner and was for a substantial enough reason to justify the dismissal of the employee.

Result

The appeal was dismissed and the EAT found in the employer’s favour, having regard to the following:

In this case the police force made an unsolicited disclosure to an employer that an employee posed a risk to children. In practice that was (whether it was spelt out or not) generally a statement that the employee was believed to have committed offences against children in the past. Where the facts relied on were established in the form of a conviction then no difficulty arose. However, where they depended on untested information – or where the employee had been acquitted in relation to the very facts relied on – the position was very different. It 'sticks in the throat' that an employee might lose his job (and perhaps in reality any chance of obtaining further employment) on the basis of allegations which he had had no opportunity to challenge in any court of law.

On the other hand, it had to be recognised that there were cases where it was necessary for employers to be warned of facts which indicated that an employee was a risk to children, even in the absence of any conviction. In an unfair dismissal case an employment tribunal was not concerned with the rights and wrongs of the disclosure system. The focus of the employment tribunal's inquiry had to be on how the employer should reasonably have acted when such disclosure was made to him.

An employer who received information from CAIC or a similar body, under an official disclosure regime, that an employee posed a risk to children had, in principle and subject to certain safeguards, to be entitled to treat that information as reliable. Mistakes sometimes happen and the consequences when they do are devastating for the employee. The employer ought therefore always to insist on a sufficient degree of formality and specificity about the disclosure before contemplating taking any action against the employee on the basis of it.

The last point to consider was that of reputational damage. Not only was it not established that the employee was in fact a danger to children but, even if he was, the dismissal would not significantly reduce the risk of his offending since he did not work with children. The EAT held that, while a dismissal on the basis of reputational risk in the absence of any established misconduct might involve a grave injustice to the employee, it was essential to bear in mind that the central question was what it was reasonable for the employer, in the relevant circumstances, to do.

It was legitimate for the employer, in its particular position, to be jealous of its public reputation: it was entitled to take the view that to continue to employ a person who it had been officially notified was a child sex offender and a continuing risk to children, would – if he were subsequently exposed – severely shake public confidence in it. If the employee was in fact innocent, the injustice had been caused not by the employer but by those who had falsely accused him and by CAIC which had given credence to those accusations.

Bottom Line

As a result of the above the employee was fairly dismissed by the employer on the basis of the CAIC’s unproved suspicions.

Nick Barnett

Published on 10/02/2011