What is an employer's position if it is in receipt of an unsolicited report from the police of an unproven allegation that the employee has committed sexual abuse which is not the subject of any criminal charge?
by Hari Menon
Certain disturbing and well-publicised criminal cases in the not too distant past have resulted in a heightened awareness of the risks to children and other vulnerable individuals from persons who have a record of abusive conduct towards these groups. A great number of these persons who attempt any such contact with these vulnerable groups will now be caught by the system of CRB checks, including Enhanced Criminal Record Checks (ECRCs). The police also have taken to reporting directly to a person’s employer allegations made against him or her, and which constitute accusations of sexual abuse. This is especially so if the employee has, or may have, access to minor or vulnerable adults.
What then, is the employer’s position if it is in receipt of an unsolicited report from the police of an unproven allegation that the employee has committed sexual abuse and which is not the subject of any criminal charge? To what extent can the employer dismiss the employee on the basis that an allegation of abuse has been made against the employee and conveyed to it by the police and in respect of which no charges are preferred? The recent decision of the Employment Appeal Tribunal in Z v A highlights the limits placed upon an employer. The reasons for dismissal in such a case are addressed at the end of this article.
The employee, A, was employed as a caretaker and site manager at a primary school by Z. In March 2010, a person, P, who was not in any way related to the school, complained to the police that A had sexually abused him when P was a child. The accusation related to alleged events many years before A’s employment with Z. P had told the police that he was driven to report the matter because he had heard that A was working with children. In April 2010 the police informed the school of the allegation. Shortly thereafter, C was suspended from duty by the head teacher, X. P initially indicated that he had no desire for criminal charges to be laid, but later changed his mind and made a statement describing the abuse allegedly inflicted upon him by A. There was then a hiatus of over a year, in which not a great deal appears to have happened either with the school or the police, who had not charged A with any offence.
...recommendation that A be dismissed on the basis that the allegation against him had caused an irretrievable breach of the duty of trust and confidence between employer and employee.
On 6th May 2011, A met with X and an HR adviser, at which he denied the allegation and pointed out that he had not been charged. He also said that the police wanted to drop the case against him. X however, arranged for a hearing before the Governors on 8th June 2011 for consideration of her recommendation that A be dismissed on the basis that the allegation against him had caused an irretrievable breach of the duty of trust and confidence between employer and employee.
X had, at that stage, received the views of a social work practitioner [It is not said what precise connection the social work practitioner had to the case, or the source of his / her belief as to the credibility of P’s allegation], who had indicated that the process of making such allegations was a traumatic one for the accuser, that false allegations were rare and that P’s allegations were “very believable”. However, the police indicated to X at a meeting on 6th June 2011 that they were taking a neutral view of the matter, that an assessment of P was due to be completed within 2 weeks and the matter would be then be referred to an expert who would comment on the credibility of the allegations. The police also disclosed that the persons that P had identified as being able to support his allegations did not, in fact, do so.
The hearing with the Governors proceeded on 8th June 2011 and X’s recommendation for A’s dismissal was adopted [A’s internal appeal against his dismissal failed]. The Employment Tribunal (ET) found that X had regarded a prompt retraction by P of the allegations against Z as a pre-condition to Z’s continued employment. The Governors were recorded at the meeting as expressing the view that the allegations against Z “created a serious safeguarding issue for the school” and that the breach of trust and confidence could not be remedied even if he was exonerated “because there would always be an element of doubt” which would damage the confidence of the parents and public in the school. The ET found as a result that the Governors had considered it to be sufficient for Z’s dismissal that the accusation had been made and conveyed to them by the police. Its credibility, or otherwise, was of no consequence to them. Z’s perversity challenge to this finding failed.
There were unchallenged findings by the ET that Z had relied on the matters discussed in an internal strategy meeting a year earlier, disclosing the minutes of that meeting only at the meeting at which A’s dismissal was determined. Z had also failed to follow up A’s contention that the decision whether to proceed with the charge against him would be made by the end of following month [The report does not record what happened in this respect, but there is no indication that Z was ever charged].
Z argued on appeal that a dismissal will “generally be justified” where there is reason to apprehend a potential risk to children, supported by the police. It sought to rely, in this regard, on the decision of the EAT in A v B  ICR 849 (Underhill J., presiding), which was upheld on appeal by the Court of Appeal and reported as Leach v Office of Communications  ICR 1269.
Leach was employed as a senior employee by his employer, Ofcom. The Metropolitan Police Child Abuse Investigation Command (CAIC) informed Ofcom that he had been involved in paedophile activity in Cambodia. The revelations by CAIC were made by way of “limited disclosure” under the Multi Agency Public Protection Arrangements under the Criminal Justice and Court Services Act 2000, albeit that it was not investigating the claimant. The claimant’s alleged efforts included posing as a doctor to gain access to children and visiting brothels that employed children. CAIC also warned Ofcom that the claimant posed a continuing threat to children. “Limited disclosure” in this context referred to allegations limited to the risk that was sought to be prevented and which the disclosing authority believed were reliably sourced.
Ofcom did not take these allegations at face value. It established that Leach had previously been charged with, but acquitted, of child sex offences in Cambodia. The disclosures were examined closely and CAIC was contacted several times by Ofcom for clarification and confirmation. Leach was given an opportunity to respond to the allegations and he did so in a 10 page statement. Ofcom dismissed him on the basis that the allegations against him undermined the relationship of trust and confidence between employer and employee, that being advanced as a basis for a dismissal for some other substantial reason (SOSR) within s.98(1)(b) of the Employment Rights Act 1996 (ERA). It was also the case that Leach had provided unconvincing answers to his employers concerning his activities in Cambodia [Including going on a diving holiday in Cambodia, in a location not known for this activity]. There was no suggestion from the employer that he was being dismissed for any matter related to his conduct.
Prior to the claimant’s appeal against his dismissal being refused, the officer hearing the appeal had a further meeting with CAIC, established the seniority of the officers conveying the allegations to her and probed the evidential basis of the allegations, as far as she was able. Her reasons for dismissing the appeal were that Ofcom had a duty to protect children and that Ofcom had no option but to dismiss given CAIC’s disclosures.
Underhill J.in the EAT in Leach emphasised that this was not a misconduct case and that consequently, the three-fold test in Burchell v British Home Stores [Reasonable belief in guilt, based on reasonable grounds, following a reasonable investigation] did not apply. He took the view that an employer, which does not have the resources to carry out an investigation into such matters, was entitled to treat information from an authoritative body such as CAIC as reliable, provided it does not do so uncritically. In the view of the EAT, the critical approach adopted by the employer was “unimpeachable” and the reason for the dismissal fell within the category of some other substantial reason (SOSR) under s.98(1)(b) ERA. There was no suggestion that the claimant had access to children in the course of his employment, but the employer was entitled to have regard to the reputational damage that may be caused to it if the allegations against Leach had become public.
These views were supported by the Court of Appeal [As a footnote, prior to the Court of Appeal hearing, at which he was absent, Leach was convicted in Cambodia of child sex offences relating to further allegations and sentenced to 12 years’ imprisonment, however, that that did not affect the merits of the appeal], as was the observation that the essential question for the employer for the purposes of s.98 of the Employment Rights Act 1996 (ERA) is not whether an injustice had been perpetrated on the claimant (in the sense of his being dismissed on the basis of allegations which may be untrue), but whether his dismissal was fair. This latter observation was made, in particular, in connection with the claimant’s assertions that he had not been convicted of any offence and that CAIC officers had supplemented or embellished disclosures to Ofcom by comments of their own which were adverse to him. The EAT made it clear that it was in no position to form a view about this matter and that if CAIC officers had overstepped the mark, the claimant’s remedy lay against CAIC and not his employer.
In Z v A Langstaff J., presiding, addressed the passage at para.31 in Underhill J’s judgment in Leach which stated: “In a case where the employee’s job involves him working with children, dismissal on the basis that he posed a risk to children would generally be justified.” [ ICR 849 @ para.31]. Langstaff J. commented that “The use of the word “generally” in in paragraph 31 of A v B means that the question is one for determination by the Tribunal; it is not conclusively determined by the fact of an allegation, even where the allegation is authoritatively supported.”
There are features of Z v A, which may, on one view, render its comparison with Leach superficially attractive from the employer’s viewpoint. First, Leach was not being investigated by the police and Z was. Secondly, Z did have access to children in the course of his employment whilst Leach did not. If Leach’s dismissal was upheld so, it would seem, must Z’s.
The real contrast between Leach and Z v A, is that the employer in the latter case had simply equated the allegation conveyed to it by the police as a justification for A’s dismissal and it had not embarked on anything remotely resembling an assessment of the credibility of the accusation, about which the police were decidedly lukewarm.
However, any hope the employer in Z v A had of being rescued by Leach v Ofcom was, essentially, a forlorn one, even given that Z was being investigated by the police and he had access to children in the course of his employment. The real contrast between Leach and Z v A, is that the employer in the latter case had simply equated the allegation conveyed to it by the police as a justification for A’s dismissal and it had not embarked on anything remotely resembling an assessment of the credibility of the accusation, about which the police were decidedly lukewarm. It is not apparent what legal advice was taken by Z, but the EAT’s decision in Leach had been handed down almost a year and half before A’s dismissal. Had Z’s attention been properly drawn to it, it would have noted that Underhill J. had stated in unequivocal terms (also endorsed by the Court of Appeal) that an employer would not be acting reasonably within the meaning of s.98(4) of the ERA if he took an uncritical view of the information provided to it.
The thread running through the Leach appeals and in Z v A was how to strike a balance between the 2 contrasting evils of the risk of exposing children to a sexual predator, on the one hand, and blighting the career of someone who had been wrongly, or falsely, been accused of sexual abuse, on the other. It is clear that Employment Judge in Z v A had this in mind, remarking trenchantly, that “In deciding whether the reason – that an accusation has been made – was such as to justify the dismissal of the Claimant, it is necessary to strike a balance. It was necessary to weigh the recommendations that the school had and the welfare of the children against the interests of the Claimant, but to condemn on the basis of an accusation alone is a standard that a reasonable employer would not have adopted. It is more appropriate to bodies of a more totalitarian disposition” [Cited in Z v A, para. 15]. The Employment Judge’s observation that the welfare of children was “paramount but not conclusive” was cited in Langstaff J.’s judgment without any dissent [Z v A para. 17].
The Employment Judge’s comment as to condemning the Claimant on the basis of “accusation alone” has to be read in conjunction with his key finding, in summary, upheld by the EAT, that “……...the Claimant was dismissed on an accusation leading to no more [than] unsupported evidence that he was a risk to children, but without any authoritative evidence or opinion to support it. That ……. was not a substantial reason such as justified the dismissal of an employee holding a position that the Claimant had.” [Cited in Z v A, para.16]
The Employment Judge in Z v A had commented that it made little difference in that case whether the claimant’s unfair dismissal could be characterised as a failure to show a substantial reason or an absence of reasonable grounds to dismiss [Z v A, para.16].
This touches upon a secondary point emerging from Leach, which was alluded to, but not taken further, in Z v A. Both the EAT and the Court of Appeal Leach deprecated the automatic use by employers of a breach of trust and confidence on the part of an employee as the specific reason for the dismissal where no other principal category of permissible reasons applied. In the EAT, it was observed that it was necessary only for the employer to prove that it reasonably relied on the disclosure and had reasonable concerns arising out of it warranting the claimant’s dismissal. That would suffice for an SOSR defence.
That must be correct. The deployment of the breach of trust and confidence by an employer is the mirror image of the duty cast upon the employer which, going back to first principles of the test for constructive dismissal, is that “.. the employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee'' [Malik v BCCI  ICR 606 @ para.54.]. It must follow therefore, if the employee is not being dismissed for something that he has done, or is believed to have done, he could not be guilty of conducting himself in any such manner and even less, without proper or reasonable cause.
There is no further or more elaborate reason that needs to be given when dismissing an employee against whom the employer has received allegations of sexual abuse from the police or other relevant body.
As the both the EAT and the Court of Appeal pointed out in Leach, the employer is fully entitled to dismiss the employee for an SOSR on the grounds that the allegations made in the disclosures concerning the employee are such as would cause it serious reputational damage. The caveats are, of course, that these disclosures must be from an authoritative body, be the subject of a proper assessment within the capabilities of the employer and not just be relied upon uncritically. There is no further or more elaborate reason that needs to be given when dismissing an employee against whom the employer has received allegations of sexual abuse from the police or other relevant body.