A v B EAT 0206/2009

The EAT has upheld, as fair, the dismissal of a civil servant following official police disclosure alleging that he was a threat to children despite the fact that the allegations were unproven and the employee did not work with children. The EAT accepted that, though the allegations were unproven, the serious reputational risk they posed to the public sector employer if they should later be proved to be true qualified as “some other substantial” (SOSR) reason for dismissal. Provided adequate safeguards were in place and a proper procedure followed, as in this case, a dismissal in such circumstances could be fair.

Implications

This decision confirms that serious reputational risk to the employer can qualify under SOSR as a fair reason for dismissal. Also, third party allegations can be relied upon provided there is a sufficient degree of critical analysis of the information disclosed and it comes from a reliable source. Here the employer had a number of interviews with the police officers involved and considered the information in detail. It remains crucial for employers to consider the reason why they are contemplating dismissal and whether dismissal is the appropriate sanction (as opposed to, say, alternative employment).

Background

The Claimant employee (“A”) was a career civil servant who had worked in several government departments. He was offered a job with the Respondent on 17 March 2005. The Respondent’s principal functions are not in the field of child protection, but some if its responsibilities require it to have regard to the interests of children. A’s role did not involve him working with children or on issues specifically relating to children.

In November 2007, the Metropolitan Police’s Child Abuse Investigation Command (CAIC) informed the Respondent of several allegations against A and of its belief that A posed “a continuing threat to children”. The Respondent sought advice from its press adviser in relation to CAIC’s disclosure. The adviser expressed the view that the allegation that A had visited a child brothel “carrie[d] significant risk of reputational damage” if it was true and was subsequently covered by the press. The Respondent, importantly, also questioned the police officers involved in some detail.

In January 2008, A attended a disciplinary meeting. A was shown the notes of conversations with CAIC and was taken through each of the four main allegations. A denied each of the allegations. The Respondent confirmed that it had to accept the Metropolitan Police’s advice that A continued to be a risk to children. The Respondent confirmed that this “breached trust and confidence which was at the heart of the employment contract” and that A was therefore summarily dismissed.

A’s appeal against his dismissal was not upheld.

Although the EAT upheld the Tribunal’s decision that the dismissal of A was fair, it acknowledged that the case was “not straightforward” and acknowledged the difficulty caused by the fact that the decision to dismiss was made solely in the interests of saving the employer’s reputation (SOSR) and the allegations had neither been proved nor admitted and did not relate to A’s work.

However, the EAT concluded that “an employer who received information from CAIC or a similar body, under an official disclosure regime, that an employee poses a risk to children must in principle and subject to certain safeguards, be entitled to treat that information as reliable”. The first safeguard anticipated by the EAT in relying on third-party information is that employers should always "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", which in this case the EAT accepted the employer had done.

The EAT accepted the evidence that a subsequent exposure of A as a child sex offender would cause the Respondent “serious reputational damage”. It then turned to consider whether this was enough to justify the dismissal of an employee against whom nothing had been proven.

The EAT held that it was legitimate for the Respondent, in its position, to be “jealous of its public reputation”. Further, it held the Respondent was entitled to take the view that to continue to employ a person whom it had been officially notified was a potential child sex offender and a known risk to children would, if that person were subsequently exposed as such, severely shake public confidence in the Respondent. The EAT concluded that, while a finding of justifiable dismissal in this case may well involve a grave injustice to the employee (who may in fact be innocent), the central question in a case of unfair dismissal is what it was reasonable for the employer in the relevant circumstances to do. In this case, it was reasonable for the employer to dismiss.