A v B

An employer may, subject to safeguards, rely on an official police disclosure that an employee presents a risk to children, even where the information is untested and the employee has been acquitted of related allegations. The employer need not conduct an independent investigation equivalent to that required in a misconduct case, but must adopt a sufficiently critical approach and seek clarification where credible concerns arise.

Under section 98(4) of the Employment Rights Act 1996, dismissal may be reasonable where the employee does not work with children but continued employment would expose a high-profile public authority to serious reputational risk. A breakdown in trust and confidence is not by itself sufficient; the underlying justification must be identified. Lack of candour may cumulatively amount to a fundamental breach justifying summary dismissal.

The Claimant, a senior civil servant, was dismissed by a public authority after the Metropolitan Police Child Abuse Investigation Command made a limited disclosure that he was believed to pose an ongoing risk to children. The allegations concerned conduct outside employment, and the Claimant had been acquitted in Cambodia. The Respondent relied on the disclosure and the resulting reputational and trust concerns, rather than asserting that the allegations were proved.

An Employment Tribunal dismissed claims of unfair and wrongful dismissal. The Claimant appealed, challenging the reasonableness of relying on untested allegations, the relevance of reputational risk, Convention rights, and the sufficiency of the alleged lack of candour. The central issues were whether the dismissal was fair under section 98 of the Employment Rights Act 1996 and whether the Claimant had committed a sufficiently serious contractual breach to justify dismissal without notice.

1. Unfair dismissal. The appeal was dismissed. The Employment Tribunal had correctly concluded that the Respondent’s reason was the effect of the police disclosure and the resulting loss of confidence, properly understood, rather than a finding that the Claimant had committed the alleged offences.
2. An employer receiving an official disclosure that an employee presents a risk to children may in principle treat the information as reliable. The employer is not generally required to conduct its own investigation into the reliability of information supplied by a responsible public authority, since it may lack the necessary expertise and resources. The employer must, however, require adequate formality and specificity and must respond critically to credible concerns about reliability by seeking reassurance from the disclosing authority.
3. The Respondent had discharged that obligation. It questioned the police sources and process, sought further information, and conducted its own disciplinary and appeal investigations. The Tribunal was entitled to find that the Respondent acted reasonably in relying on the disclosure.
4. The fact that the Claimant did not work with children did not make dismissal impermissible. The relevant considerations included the Respondent’s high-profile public status, its responsibilities touching on child protection, the Claimant’s senior representative role, the possibility of relevant conduct during foreign travel, and the serious reputational damage that could follow if the warnings were later substantiated. The expression loss of trust and confidence was not itself a sufficient reason; the underlying reputational and institutional concerns had to be identified. In the circumstances, the dismissal fell within the range of reasonable responses under section 98(4).
5. Articles 6 and 8 of the Convention did not alter the result. Article 6.2 did not apply to an employment disciplinary hearing, and article 6.1 was not engaged because the dismissal did not determine civil rights in the relevant statutory context. The Respondent’s dismissal of the Claimant did not itself impose a general inhibition on future employment for article 8 purposes.
6. Wrongful dismissal. The appeal was also dismissed. Although matters disclosed to the Respondent in March 2007 could not later be relied upon if the Respondent had waived them, the continuing emails, undisclosed suicide threat, undisclosed employment dispute, and misleading account of the Cambodian detention could be considered cumulatively. The Tribunal was entitled to conclude that deliberate or materially incomplete candour went to the root of the employment relationship and constituted a fundamental breach justifying summary dismissal.

• Employment Tribunal: claims of unfair dismissal and wrongful dismissal dismissed. The Tribunal’s decision and Reasons were sent to the parties on 18 December 2008.
• Employment Appeal Tribunal: appeal dismissed on both unfair dismissal and wrongful dismissal grounds.