Case of the week: A v B

Facts

In 2005, the claimant successfully applied for a position with the respondent public authority. Before the claimant’s job was due to start, he travelled to Cambodia, where he undertook work at an orphanage.

However, during the visit he was arrested on suspicion of having sexually abused children at the orphanage. After investigations by the Cambodian authorities, the prosecutor’s office directed that the file be “held without processing”, which was equivalent to an acquittal. The claimant started work for the respondent without explaining what had happened.

The proceedings in Cambodia did not end with the claimant’s acquittal as there were two further hearings in the appellate court. On each occasion, the acquittal was upheld and was endorsed by the Supreme Court in May 2007.

The claimant believed he was being persecuted by a Cambodian campaign group and sent a number of e-mails from his work e-mail account to various government departments complaining about this. Some of these e-mails were ill-judged in their content and, when they were brought to the attention of the respondent, resulted in the claimant being given a written warning.

However, the respondent believed the claimant was innocent of the allegations made by the campaign group.

In late 2007, the Metropolitan Police Child Abuse Investigation Command (CAIC) contacted the respondent and raised allegations against the claimant relating to his contact with children, going substantially beyond what the respondent already knew. The gist was that the claimant posed a “continuing threat to children”.

In January 2008, the claimant was invited to a disciplinary hearing and shown notes of the conversations with the CAIC. The claimant denied the allegations. The respondent said that it had to accept the CAIC’s advice that the claimant continued to be a risk to children and that this constituted a breach of trust and confidence. He would be dismissed with immediate effect. The claimant appealed but, after further investigations, the appeal was dismissed. The claimant brought claims in an employment tribunal, including a claim for unfair dismissal.

Decision

The employment tribunal dismissed the claimant’s case and he appealed to the Employment Appeal Tribunal (EAT). The EAT said that an employer that receives information from the CAIC, or a similar body, under an official disclosure regime that an employee poses a risk to children must, subject to certain safeguards, be entitled to treat that information as reliable.

However, an employer will not be acting reasonably if it takes an uncritical view of the information disclosed to it. An employer must always insist on a sufficient degree of formality and specificity about the disclosure before contemplating taking any action against the employee.

The EAT found that the respondent had discharged this obligation. It said that the next stage was to consider whether the disclosed information was a sufficient reason for dismissal. Although the claimant’s job did not involve him working with children and the conduct did not occur while the claimant was at work, the EAT found that, in these circumstances, the respondent was entitled to protect its public reputation.

Implications

The EAT said that, in cases such as this, relying on a loss of trust and confidence to justify a dismissal is not particularly helpful and can lead parties to assume the employment contract should automatically be brought to an end.

It said that the safest course is to refer to the terms of section 98 of the Employment Rights Act 1996. This requires an employer to be clear about the reason for the dismissal and to show that the reason is sufficient to justify the dismissal. This case gives useful guidance on the ability to rely on third-party information to support an employer’s reason for dismissal.

Karen Macpherson, employment partner, DLA Piper

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