Employee dismissed fairly on basis of breakdown of trust and confidence despite criminal allegations not substantiated

9 April 2010

Background
The employer (B) became aware that the employee (A), a senior civil servant, had been accused of engaging in paedophile activities including allegations made in Cambodia for which A was acquitted. Even though not convicted the Metropolitan Police Child Abuse Investigation Command (CAIC) considered that A “posed an ongoing threat to children” and accordingly notified B. On investigation the employer was not convinced by A’s explanations and considered his behaviour “erratic”.

B did not rely on any finding of guilt on the part of A, rather the mere circumstances of the CAIC disclosure that he was a continuing threat to children and B’s view of A following investigation. B considered that this led to a fundamental breakdown in its trust and confidence in A, it particularly considered its reputational risk. The employer used this as justification for dismissal of A on the basis of ‘some other substantial reason’; rather than for misconduct.

Tribunal and Appeal
A lost his claim for unfair dismissal both at the Employment Tribunal and at the Employment Appeal Tribunal (EAT). The EAT stated that allowing an employer to dismiss an employee, on the basis of an allegation that is not only unproven but untested for which the employee has no opportunity to challenge in a court of law, may indeed “stick in the throat”. However, the EAT ruled that it was legitimate for an employer to be “jealous of its public reputation … and take the view that to continue to employ, in the position in question, a person who it has been officially notified was a child sex offender and a continuing risk to children, would – if he were subsequently exposed (which it was plainly reasonable to anticipate) – severely shake public confidence in it”.

The EAT commented that: “If the Claimant is in fact innocent, the injustice has been caused not by the employer but by those who have falsely accused him and by CAIC which has given credence to those accusations.”

It is of interest that A’s job did not involve him working with children, nor was there a suggestion that the alleged activity occurred while A was at work.

A also presented a wrongful dismissal claim arguing that the dismissal was in fact on the grounds of ‘misconduct’ and not ‘some other substantial reason’. This also failed.

Summary and Comments
Although the EAT did express concerns about the growth of the “invocation of loss of trust and confidence” arguments in unfair dismissal claims this case does highlight that an employer can consider its “reputational risk in the absence of any established misconduct”. This will be protected despite the apparent injustice it can create. However, Tribunals will be wary to ensure that the circumstances justify such an approach and we caution that this approach should be used sparingly and only where the misconduct approach is not feasible.