The EAT has held that a public authority fairly dismissed a career civil servant in reliance on a police disclosure relating to alleged sexual abuse of children, even though the alleged conduct had not been proven and did not have a direct relationship with the employee's work (A v B).
A's role did not involve working with or dealing with issues relating to children. The employer, B, is frequently in the public eye and some of its responsibilities require it to have regard to the interests of children. The Metropolitan Police informally told B of a number of allegations against A. It then formally provided B with what it called 'limited disclosure' regarding allegations that A had been involved in the sexual abuse of children, and advised B that A posed a continuing threat to children. B dismissed A because of the risk he posed to the authority's reputation.
Despite the fact that the alleged conduct had been neither proved nor admitted, the EAT held that A's dismissal was fair. Although there is clearly potential for the employee to suffer an injustice in such circumstances, the tribunal has to decide only whether the employer has acted fairly in the circumstances. The EAT concluded that it was legitimate for B, in its particular circumstances, to be concerned about the risk to its public reputation if it came to light that it continued to employ A after being officially notified that he was a sex offender and posed a continuing risk to children.
Impact on employers
- This is a helpful decision for employers wishing to take action on the basis of information that gives them cause for concern, even if the information contains allegations that have not have been proven in criminal proceedings.
- The EAT gave guidance to employers on the safeguards that should be observed before relying on official disclosures to take action against an employee. These safeguards equally should be applied before relying on any information received from any third party:
- an employer that receives information from a body under an official disclosure regime in principle and subject to certain safeguards is entitled to treat that information as reliable. It is not expected to carry out its own investigation to test the reliability of information received from a responsible public authority. In some cases, however, it may be required to scrutinise the provider of the information;
- it will not be reasonable for an employer merely to take an uncritical view of information disclosed to it. The employer should 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;
- if the employer is in a position, either from its own knowledge or from information obtained from the employee, to raise questions about the reliability of the disclosed information, the employer should put those questions to the body providing the information and seek credible reassurance that all relevant information has been taken into account; and
- an employer which decides to take action on the basis of information provided by a third party needs to identify the reason they are doing so and consider whether the reason justifies the proposed sanction. The EAT criticised the increasing trend to rely on a 'breakdown of trust and confidence' as the reason for dismissal.