United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR COLIN BOURNE (Of Counsel) Instructed by: The Royal Bank of Scotland Mentor Services 134 West Regent Street Glasgow G2 2RQ
For the Respondent	MR DANIEL DEVINE Solicitor Messrs Muir Myles Laverty Legal Services Meadowplace Building Bell Street Dundee DD1 1EJ


 


SUMMARY

Reasonableness of dismissal

The claimant was dismissed by a children's charity that provides care services to vulnerable young people. He had been disciplined in respect of certain conduct matters and received final written warnings as a result. Thereafter, in an enhanced disclosure letter from the police, there was a reference to an allegation that he had, in 1993, committed a serious sexual offence against a young female. The police records did not indicate the outcome of the case although the letter advised that it was understood that no proceedings were instigated. At an appeal hearing, the claimant said to his employers that another person had been convicted of the offence alleged but he had not enquired of the police as to whether that was correct. The claimant was disciplined and dismissed and the Tribunal found the dismissal to have been unfair in respect that the respondents should have asked the police whether the claimant's statement that someone else had been convicted of the sexual offence referred to was correct. On appeal, the EAT found the dismissal to have been fair.


 


THE HONOURABLE LADY SMITH

Introduction

1. Following a hearing in Dundee, an Employment Tribunal, Chairman Mr I McFatridge, found that the respondent was unfairly dismissed by the appellants. We propose to refer to parties as claimant and respondents.
2. The central issue in the case concerned the respondents' reaction to an "enhanced disclosure letter" in respect of the claimant that was provided by the local Chief Constable under the Police Act 1997 in response to a routine enquiry.

Background

3. The respondents are a children's charity and they provide care services to extremely vulnerable young people. They are regulated by the Care Commission.
4. The claimant began working for the respondents on a casual basis in 2000 and he became a full time support worker from January 2004, working closely with young people.
5. Shortly after December 2004, various investigations into the claimant's conduct were made and resulted in five particular matters being raised as a result of which he was suspended from work on 18 February 2005. None of these matters were sexual in nature but one of them did concern a breach of confidentiality. After disciplinary hearings, two of the allegations were established. One concerned smoking at work and the other concerned giving a lift to someone whilst at the same time being responsible for transporting a young person in the care of the respondents. It was the latter that involved a breach of confidentiality in that by placing an unknown person in one of the respondents' vehicles in those circumstances that person became aware that the young person was in the care of the respondents. The claimant was issued with a final written warning in respect of each these matters.
6. The respondents follow the recommended practice of requiring employees to seek enhanced disclosure letters once every two years (see: Police Act 1997 sections 113-115). Such disclosure requires to be applied for by the employee and it is provided to the employer. In October 2004, the claimant completed the relevant application form for enhanced disclosure, it was countersigned by the respondents and was sent to Disclosure Scotland for processing.
7. As the Tribunal comment, requests for such disclosure can be for what are generally known as "hard" and "soft" disclosure, the former being details of actual convictions and the latter being such information as the Chief Constable, in his discretion, considers may relate to the employee's suitability for a particular role. In the case of the claimant, there were no "hard" disclosures but it was stated, in an enhanced disclosure letter dated 25 February 2005, that the police held information which, in summary, was that it was alleged that in 1993, the claimant had committed a serious sexual offence against a teenager in her home, at a party given by her parents. It was stated in the letter that the police interviewed the claimant but did not charge him at that time, that they had submitted a report to the procurator fiscal but their records did not indicate the outcome of the case; their understanding was that no proceedings were instigated.
8. The holding of this information by the police was subject to certain of the provisions of the Data Protection Act 1998 under which the claimant was the "data subject". Section 7 of that Act affords him certain rights of access to it, subject to the police objective of the prevention or detection of crime and under section 14, the data subject can apply to the court for an order for rectification, blocking, erasure or destruction of data.
9. It was not open to the respondents to disclose to the claimant the details of which the police advised. It would have been an offence under section124 of the Police Act 1997 for them to do so. They did, however, immediately notify the claimant that they had received information about him from the police of a sensitive nature. The claimant contacted the police and they replied to him on 29 March 2005, in the following terms:

"The information disclosed related to information held by Police concerning an allegation of a sexual nature made against you in 1993 and a further incident with sexual overtones was reported to the police by you on 2004.

I am unable to confirm further details of the incidents at this time due to restrictions placed on me by the Data Protection Act 1998. If either of these incidents are unknown to you or have slipped your memory, I will endeavour to assist in adding what further details I can whilst giving due consideration to by obligations under the Data Protection Act."

The claimant thereafter met with a police inspector who advised him he was not able to provide any further details. He went to the police again several times in the week before an appeal hearing before the respondents which took place on 20 July 2005 and eventually persuaded them to let him have a copy of the enhanced disclosure letter that they had sent to the respondents.

10. On 12 April 2005, the respondents' Mr Wood and Lesley Milne, met with a data protection officer from the Disclosure Unit of Tayside Police to discuss what, if anything, they could disclose to the claimant of the information contained in the letter of 25 February 2005, without being in breach of their statutory duties.
11. The claimant's evidence to the Tribunal was that someone else had been convicted of the sexual offence referred to in the enhanced disclosure letter and he knew that person's surname. However, on the Tribunal's findings the claimant did not raise that matter with the police whether during any of his meetings with them or otherwise. As regards the respondents, the claimant first mentioned the matter at the appeal hearing on 20 July 2005 but did not give them a name; the information given was simply that "another person" was convicted of the 1993 offence.
12. A disciplinary hearing in respect of the issue raised by the enhanced disclosure letter took place on 28 June 2005. The claimant gave an explanation of the events of the 1993 matter to the respondents' Area Manager North, Mr Wardley-Smith (an explanation which was not entirely consistent with the details given in the enhanced disclosure letter) at the hearing but he did not believe the claimant. Mr Wardley Smith considered that it was impossible for the claimant to continue to be in the respondents' employment, given the enhanced disclosure. They required to be able to have 100% confidence in their employees and they could not do so with such a letter on file. His dismissal was, accordingly, confirmed by letter dated 8 July 2005.
13. The claimant appealed. The appeal hearing took place on 20 July 2005 before Mr Clive Wood, Executive Director. Parties were agreed as to the accuracy of the minutes of the appeal hearing and those minutes recorded:

"C Wood advised A…… that Lesley Milne had written to him on two occasions recommending he contact Tayside Police regarding the issue. C Wood told A …… he wanted to help him to sort this matter out but any mitigating factors he had needed to go direct to Tayside Police not to the Trust. The problem was the Disclosure 'soft' information. The Trust could do nothing to change this with the Police."

That minute also records the claimant's assertion that the information the police held about him and the 1993 incident was untrue, that another person had been convicted of it and that he planned to raise the issue with the police through his solicitor.

14. Further the minute records that the claimant understood why he had been dismissed and that he did not blame the respondents for it, that he understood the implications for the respondents from the Care Commission perspective if the letter remained on file and that he was angry with the police, not with the respondents. Further, it records that the claimant's trade union representative explained at the appeal hearing that once he had seen the disclosure letter he told the claimant:

"he did not have much chance as no reasonable employer could take any other decision but dismissal."

and had advised him to seek legal advice and take the matter up with the police.

15. The Tribunal's findings in fact in respect of the appeal hearing confirm the tenor of the minute and include:

"28. .… The claimant and his union representative were shocked by what the police actually said regarding the 1993 incident. During the course of the hearing Mr Wood put it to the claimant and his representative that given that disclosure there was really no way he could continue to work for the Trust. Both the claimant and his union representative indicated that they could quite see the Trust's position.

29. Mr Wood's position was that from the moment the Trust received the letter from the police there was really no way the claimant could continue to be employed by them. The only way that this would change would be if the police were to write again to the Trust in some way modifying or withdrawing the soft disclosure they had made. In his view the Chief Constable had a discretion as to whether or not to make soft disclosure and once he had decided to exercise his discretion in favour of making that disclosure, any organisation such as the respondents had to accept this and that was really the end of the matter.

30. So far as Mr Wood was concerned, it was entirely up to the claimant to contact the police or do whatever he needed to do to have the police modify or withdraw the soft disclosure they had made. If the claimant had been a better employee and not one who was already suspended when the disclosure had come in and ended up with two final written warnings, then the respondents might well have taken an active part in going along to the police with that employee to have the matter investigated with a view to the police modifying their disclosure. In this case however Mr Wood felt that there was an issue of credibility involved. He felt that the Trust would damage their credibility if, after such a disclosure had been made, they were seen to be going back to the police trying to in some way protect their employee. They would have done so however if the claimant had been a better employee. Mr Wood took the view that even if it were a completely unfounded allegation which the police had chosen to make a soft disclosure about, then it was not for the respondents to investigate whether that allegation was proven or not. The Chief Constable had exercised his discretion to tell the respondents about it and that was really the end of the matter."

16. The Tribunal also found that Mr Wood considered that if the respondents were inspected by the Care Commission and they saw the enhanced disclosure on file and that the claimant was still employed by them, the Commission would close them down immediately. Mr Wood's view in that respect does not appear to have been challenged in any way.
17. At the end of that hearing the claimant was told his dismissal was confirmed. He was advised that he had a further right of appeal, to the Board of Directors but he decided not to do so notwithstanding that he was advised by his trade union representative that he should do so if he wanted to go to a Tribunal.

The Tribunal's Decision

18. The Tribunal advise, at paragraph 37, that they found this to be "an extremely difficult case". That said, they came to the view that the respondents should have gone to the police to ask if it was correct that somebody else was convicted of the 1993 offence because failing to do so was outwith the band of reasonable responses that was open to them. That was their sole criticism of the respondents. They seem to have envisaged that the respondents would have made such an approach themselves rather than in association with the claimant. They make no finding as to what would have happened if the respondents had made such an approach.
19. The way in which the Tribunal's reasoning runs is that they noted that the claimant felt he had been dismissed in circumstances where he had not only lost his job but lost his prospects of obtaining employment which involved working with young people in the future. Whilst they comment that the dismissal had happened on the basis of a letter which had only been made available to the claimant an hour before the appeal hearing "and which he challenged" we observe that the claimant had in fact been able, on the basis of the outline given to him by the police earlier, to give an explanation of the 1993 events to the respondents at his original disciplinary hearing, that neither he nor his trade union representative had asked for an adjournment of the appeal hearing in light of the late disclosure of the letter to them by the police and that the claimant had not raised any challenge with the police regarding the matter. Nor do the Tribunal find that the claimant had, at any time, asked the respondents to assist him in raising such a challenge.
20. The Tribunal noted further (in paragraph 37) that the respondents had felt that they had no choice in the matter: the Chief Constable had presumably exercised his discretion to make the disclosure on the basis that he thought the information was relevant, they were not in a position to investigate matters any more than the police had done and the disclosure letter made the claimant's continued employment unsustainable. Mr Wood was concerned at the risk of closure if the Care Commission found the letter on file and the claimant still in their employment. This was against a background of them having found that the respondents' view was, as explained by Mr Wardley-Smith:

"… with this type of soft disclosure having been made to the respondents, it was simply impossible for him to continue to be employed by them. The respondents required to have absolute confidence in their staff and with this letter on file they could not possibly have this 100% confidence."

(paragraph 24; see also paragraph 29)

However, the Tribunal acceded to an argument presented on the claimant's behalf that whilst the respondents were in no better a position to investigate the 1993 allegation than were the police "the matter was different". That was because the claimant was saying that someone else had been convicted of the offence. That being so, the respondents had a responsibility:

"39. … at the very least to go back to the police and say:

40. 'With regard to your letter we have spoken to our employee and he says that somebody else was actually convicted of the crime of which he was accused. Is this correct?'

41. Had the respondents done this, the situation might have been different."

The Tribunal state that they preferred that reasoning and added:

"If Parliament had intended that the mere existence of a soft disclosure from a senior police officer should result in an employee's immediate dismissal, without hope of an appeal, then they should have said so. Section 98(4) however indicates that an employer must act reasonably on all the circumstances in treating such a letter as a reason for dismissal. The Tribunal felt that whilst there is a range of reasonable responses test for an employer in the circumstances in which the respondents found themselves, not to go back to the police and ask whether the claimant's statement was true or not was entirely outwith the band of reasonable responses." (paragraph 42)

21. A similar theme is taken up by the Tribunal at paragraph 44 but this time, they seemed to have in mind a scenario whereby the respondents would have supported the claimant in his approach to the police:

"So far as Mr Wood was concerned his view was that it was up to the claimant himself to go to the police and get them to change their mind. He felt that the respondents were not required to take any active part in this. The Tribunal disagreed with this interpretation. The Tribunal therefore considered that the dismissal was unfair."

The Tribunal say something more about their assessment of Parliament's intention at paragraph 43:

"The Tribunal did not accept that Parliament intended that there should be a seamless process whereby a Chief Constable can arrange for the dismissal of any employee in sensitive employment on the basis of grounds which must be kept secret from that employee. There must be some opportunity in the process for the employee to be able to defend their employment and the employer must be under a duty in terms of Section 98(4) to take some steps in relation to that."

The Tribunal noted further in paragraph 44, when considering quantum, that the claimant was waiting on the outcome of the Tribunal hearing "before making further attempts to clear his name with the police". It is not apparent, on the Tribunal's findings, that the claimant had in fact made any such attempts by that stage.

22. Nowhere do the Tribunal make any findings as to what a reasonable employer would have anticipated being the outcome if he had asked the question which the Tribunal say the respondents should have asked whether independently or by way of supporting an approach made to the police by the claimant. Nor do they make any finding as to what would have been the outcome.

Relevant Law:

23. The claim being one of unfair dismissal, section 98 of the Employment Rights Act 1996 applies:

"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason …… for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

………

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

The reason for the claimant's dismissal in this case did not fall within the list set out in subsection (2).

24. The issuing of enhanced disclosure certificates is covered by provisions contained in the Police Act 1997 ("the 1997 Act"). Section 115(2) provides for such certificates to be issued on the application of a person in relation to his own suitability for certain positions. The application requires to be countersigned by a registered person. The respondents are registered persons for the purposes of the 1997 Act. Section 115(3) provides that the relevant positions include those which involve:

"… regularly caring for, training, supervising or being in sole charge of persons aged under 18."

Section 115(7) provides for information to be supplied, for the purposes of the certificate, by the "chief officer of every relevant police force". In particular, it states that such an officer shall be asked to provide:

"… any information which, in the chief officer's opinion –

(a) might be relevant for the purpose described in the statement under subsection (2), and

(b) ought to be included in the certificate."

Further, such a chief officer is requested, under section 115(8), to provide any information which, in his opinion –

"(a) might be relevant for the purpose described in the statement under subsection (2),

(b) ought not to be included in the certificate, in the interests of the prevention or detection of crime, and

(c) can, without harming those interests, be disclosed to the registered person."

The letter of 25 February 2005 that was sent to the respondents by the police appears to have been sent under and in terms of section 115(8).

25. The certificate is sent, once prepared, to the registered person who countersigned the application (section 115(9)), as is any other information provided under section 115(8).
26. In the event that the applicant believes that information contained in the certificate is inaccurate, he can apply for a new certificate under the provisions of section 117. No such application appears to have been made in the present case.
27. The registered person to whom the certificate is sent or information provided is not at liberty to disclose the contents. It is an offence to do so (section 124 ).
28. Certain of the provisions of the Data Protection Act 1998 ("the 1998 Act") are also of some relevance since the information held by the police and disclosed to the respondents was, to an extent, subject to its provisions. Under that Act, the claimant was the "data subject". Data subjects have the right to be informed by any "data controller", namely a person who holds data, whether personal data relating to him are being processed by that controller but certain exemptions apply in respect of data held by the police so as to relieve them, for the purposes of the prevention and detection of crime, from the section 7 duties. However, it is also of note that even where the police are satisfied that it is appropriate to disclose data, section 7(4) prevents them from complying with the request if it would involve the disclosure of information relating to another individual unless either that individual has consented or it is reasonable, in all the circumstances to comply with the request without that consent.
29. Section 14 of the 1998 Act confers power on the court to order the data controller to rectify, block, erase or destroy any data which is inaccurate, on the application of the data subject. No such application appears to have been made in the present case.
30. Finally, we would observe that in the event that a Chief Constable unreasonably refused to withdraw information issued under section 115(7) for certificate purposes or a letter issued under section 115(8), there would seem to be no reason why the applicant should not apply to have his refusal judicially reviewed.

The Appeal

Submissions for the Respondents

31. In a clear and cogent submission, Mr Bourne sought an order that the appeal be upheld and, rather than have the case remitted, a decision be substituted that the claim be dismissed.
32. He observed that the Tribunal's findings centred on their criticism of the respondents' failure to make an enquiry of the police. They did not, however, make relevant and necessary findings of fact. They had simply substituted their own view for that of the respondents without in fact applying the correct legal test. They had reached a decision which was perverse.
33. In particular, the Tribunal had found that the view of the respondents was that once they had received the soft disclosure letter, they had no option but to terminate the claimant's employment as they needed to have 100% confidence in their staff. They had not made any finding as to whether that was a reasonable view to hold; they should, in all the circumstances, have done so. They, further and importantly, failed to make any finding as to what could have resulted if the respondents had acted in the way they said they should have acted, and posed the question set out at paragraph 40, to the police. What information could the respondents have given the police? None, submitted Mr Bourne. Paragraph 41 was crying out for the Tribunal to make a finding as to what difference it would have made if the respondents had posed the question but no such finding had been made. All the respondents could have done was to tell the police what the claimant had told them which the claimant himself could have told the police directly. The respondents knew, from what passed at the appeal hearing, that the claimant had spoken to the police and intended to do so further. Why place, in effect, a greater obligation on the respondents to relay second hand information to the police than was placed on the claimant himself?
34. Nor did the Tribunal find that the decision to dismiss was outwith the band of reasonable responses. They had only found that it was outwith the band of reasonable responses not to have made the enquiry of the police. In respect that the Tribunal commented that this was an "extremely difficult" case, that highlighted that they had reached the wrong result. If matters had been outwith the range of reasonable responses, it would not have been difficult; such cases are readily identifiable.
35. Separately, Mr Bourne noted that although the Tribunal ultimately seemed to have envisaged that the respondents should have made an independent approach to the police, it would not, under the statutory scheme, have been appropriate for them to do so. Any approach in respect of the letter made with a view to having it withdrawn or modified would have had to be made by the claimant. There was no finding that the claimant had made such an approach nor was there any finding that he had sought assistance from the respondents in doing so.
36. Further, the Tribunal had taken no account of the care the respondents took to meet with the police to discuss the disclosure letter or of the claimant's history of having been suspended and being subject to two final written warnings. They had failed to take account of the apprehension regarding what would be the Care Commission's attitude. They had failed to take account of the fact that the respondents required to assess risk. They had failed to make any finding as to whether the claimant ought to have posed the question to the police himself or explain why the respondents should be obliged to do so if he was not. They had failed to take account of the fact that the claimant had not utilised his final right of appeal. Whilst the claimant's stated reason for not doing so was that he thought there was no point if the respondents were not prepared to go behind the disclosure letter, the Tribunal had not found that the respondents ought to have been prepared to do so, something which they should have examined given the claimant's candid recognition and acceptance of the position of the respondents. He also observed that whilst the Tribunal had quoted section 98 of the 1996 Act, they had failed to state what the reason for the dismissal was; they should have found that it was the disclosure letter and that that was, in the circumstances "some other substantial reason". They had, overall, failed to consider whether, in all the relevant circumstances, the dismissal was fair.
37. Mr Bourne made a separate observation under reference to a passage in the Tribunal's judgment at paragraph 44, where they are dealing with quantum and they state:

"…since the claimant had indicated he was waiting on the outcome of the Tribunal, before making further attempts to clear his name with the police, there was at least a possibility that the matter of the police disclosures might be sorted out in the reasonably near future and he would be able to obtain similar work again."

It was clearly implicit in that approach, he said, that the Tribunal accepted that as long as the disclosure letter subsisted, the claimant could not be employed in a job such as that for which he had been employed by the respondents.

38. Regarding the finding that had the claimant been a better employee the respondents "might well" or "would have" taken an active part in an approach to the police (paragraphs 30 and 42), Mr Bourne strongly resisted any suggestion that that demonstrated unfairness of procedure. To show that the respondents had behaved unfairly as amongst different employees, it would have been necessary to compare similar circumstances. It was of no assistance to compare an employee with a "clean record" with an employee such as the claimant who was subject to two final written warnings. He was not suggesting that essential procedures should or could differ but, quite properly, the lengths to which an employer might be prepared to go could differ according to that employee's background. It was quite proper, when considering the fairness of a dismissal, which was the task for the Tribunal here, to look at an employee's history.
39. Under reference to Meek v City of Birmingham District Council [1987] IRLR 250, Mr Bourne submitted that the Tribunal had failed to reach factual conclusions about what would and could have happened if the respondents had done as they said they should have done and without that, they had failed to provide adequate reasons. Then under reference to United Distillers v Conlin [1992] IRLR 503, he submitted that it was not that this was a case where it was possible to tell from the Tribunal's reasons as whole that they had applied the correct test; rather, it was one of those in which although they had expressed the correct test, they had failed to apply it. In circumstances where the employee had a background of suspension and final written warnings, there required, as with the claimant in Conlin, to be clear reasoning as to why the dismissal fell outwith the range of reasonable responses open to the employer.
40. In respect that Mr Bourne invited us to find that the Tribunal's decision was perverse, he referred us to the well known discussion of the concept of perversity set out by Mummery J, as he then was, in the case of Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 at page 443 as quoted in Ministryof Defence v Hunt &c [1996] IRLR 139.

Submissions for the claimant

41. For the claimant, Mr Devine relied, essentially, on the reasoning of the Tribunal. He submitted that once the claimant had advised the respondents that someone else had been convicted of the 1993 offence, a duty transferred to the respondents "to do something". If the respondents' position was upheld, then any employee who was the subject of an allegation could be dismissed. Had the claimant been an employee with an immaculate record, the respondents would have done more. Under reference to the passage in paragraph 43 that referred to an employee being dismissed on grounds which must be kept secret from him, he said that he was not suggesting that the grounds for dismissal had been kept secret in this case. Under reference to the passages in paragraphs 30 and 44 which seemed to envisage the respondents joining with the claimant in making an approach to the police, he submitted that that would have been an entirely and perfectly good thing for the respondents to do. He did not suggest that the Tribunal had made any finding that the claimant had requested any such assistance. Overall, he submitted that the Tribunal's findings were clear, they had stated the relevant points and they had addressed relevant reasons.

Discussion

42. We are persuaded that we should uphold this appeal.
43. The Tribunal decided this case as they did solely because the respondents did not ask the police the question that is set out at paragraph 40. The dismissal was unfair because of that (paragraph 44), according to them.
44. This case concerns a claim of unfair dismissal. That means the first task for the tribunal, which was not addressed, was to decide whether the respondents had shown that the reason for the dismissal was one which fell within section 98(1) of the 1996 Act. It is, though, plain from the findings that the Tribunal did make that the reason for the claimant's dismissal was the submission and subsistence of the disclosure letter of 25 February 2005. They should have had no difficulty in holding that that was "some other substantial reason" for the purposes of section 98(1) (b) and we approach the case on the basis that it was.
45. Turning then to section 98(4) of the 1996 Act, the task for the Tribunal was to determine whether the dismissal was fair by asking whether, in all the circumstances, the respondents acted reasonably, bearing in mind the requirement to do so in accordance with equity and the substantial merits of the case. We note that the size and administrative resources of the respondents were not relevant in this case.
46. We are satisfied that to fulfil the task set by section 98(4), the Tribunal, in this case, required to take account of the claimant's history; in particular that he had been suspended from duty and was subject to final written warnings, one of which involved breach of confidentiality. There is no indication of the Tribunal having taken that matter into account.
47. We consider that the Tribunal required to take account of nature, status and purpose of the enhanced disclosure letter. It is plain that one of the purposes of the relevant provisions of the 1997 Act is to see to it that persons including employers such as the respondents are provided with information which is relevant to their assessment of the risks posed by retaining a particular employee in their employment. Having taken account of that, we consider that it was incumbent on the Tribunal then to take account of the respondents' reaction and approach to the particular disclosure letter that they received, which was, in short that the effect of the letter on them was that they could not, in the light of the information in it, have 100% confidence in the claimant in circumstances where they required to be able to have 100% confidence in all their staff and that that meant he could not continue in their employment so long as the letter was on file. That, of course , was in also in the context of Mr Wood's apprehension that the Care Commission would close them down if they found that letter on file and the claimant still in their employment. The Tribunal did not find that this was an unreasonable approach for the respondents to have adopted on the facts of this case; indeed, standing their comments in the quantum section of paragraph 44 to which we have referred, it seems implicit that they accepted that it was an entirely reasonable one.
48. The Tribunal's findings or comments regarding the legislative provisions focussed, however, on what they perceived to be its drawbacks. They were concerned, it seems, that if they acceded to the respondents' arguments, that would mean that the "mere existence of a soft disclosure letter from a senior police officer should result in an employee's dismissal, without hope of an appeal" (paragraph 42) and that it would be furthering a process "whereby a Chief Constable can arrange for the dismissal of an employee in sensitive employment on the basis of grounds which must be kept secret from that employee". These apprehensions appear, however, to be without foundation. Firstly, the Chief Constable does not, by issuing a disclosure letter issue any instruction to an employer to dismiss an employee. The decision to dismiss is the employer's decision, not his. Then, the person who applies for enhanced disclosure (in this case the claimant) can make an application for information regarding the data held by the police and may, as happened in this case, obtain not only an outline of that data but the full text of the letter in question. Secondly, such a person has a number of avenues of recourse. In addition to those which we have already noted under our "Relevant Law" section, it must always be open to a person in the position of the claimant to take any information which he considers is relevant and may be such as to persuade the Chief Constable to withdraw or amend a disclosure letter, to the police. It is thus wrong to suggest that the grounds of dismissal must necessarily be kept secret or that the mere existence of a disclosure letter will automatically result in dismissal without any hope of appeal. In any event, the Tribunal's articulation of its concerns did not reflect the actual position in the present case.
49. The Tribunal stated in terms that their decision was that they preferred the reasoning advanced on behalf of the claimant which was, as we have noted, to the effect that the respondents should have approached the police and posed the question set out in paragraph 40 themselves, independently of the claimant. On the facts found, that could not have been until after the appeal hearing on 20 July 2005 as they did not know of the claimant's assertion regarding someone else being convicted until then. The claimant's submission was not that they should have agreed to assist the claimant in such an approach to the police. That is not surprising since there was no evidence (or finding) that the claimant had sought that the respondents do so. Nor was there any finding that the claimant had tried to have the police answer the question himself notwithstanding the indications given at the appeal hearing that he was going to do so. The claimant's complaint was not, in short, that the respondents had failed to help him in his efforts to have the police answer the question but that the respondent had not, of their own volition, done so. As it was put by Mr Devine, a duty to do so had transferred to the respondents.
50. However, this transfer of duty argued for on behalf of the claimant was in circumstances where, on the findings of the Tribunal, all that the respondents could have done was to report to the police what had been reported to them at the time of the appeal hearing by the claimant. We note that would not have included giving the police a name for the person who, according to the claimant, had been convicted of the 1993 offence. We also note that that would have been in circumstances where the respondents knew that the claimant had had contact with the police before the appeal hearing, that he knew that he could ask for the information given to be amended if he thought it was incorrect (because they had told him that he could do so at the hearing), that he knew that the respondents considered that it was not for them to approach the police (because, again, they had told him that, at the appeal hearing) and that the claimant still had a right of final appeal outstanding, pending which there would appear to have been no reason for him not to ask the question of the police. These were all circumstances which the Tribunal was, we consider, bound to take into account but there is indication of them having done so.
51. Further, we consider that Mr Bourne was right to found on the Tribunal's failure to make any finding as to what would have happened if the respondents had asked the police the question in paragraph 40. It is not at all obvious to us (nor, we consider, could it be said that it would have been obvious to a reasonable employer) that doing so would have produced a result that would have been favourable to the claimant, assuming that the police would have been prepared to respond to the respondents at all, which, given the statutory scheme to which we have referred, they may well have considered would not have been appropriate. It is difficult to see what check could have been made by the police without the name of the "somebody else" being supplied, particularly in circumstances where, as they had already advised that their records "did not indicate the outcome of the case". Even if they had been able to identify another person as having been convicted of the offence, there would have been restrictions on what they could disclose because of the provisions of section 7(4) of the 1998 Act, to which we have already referred. And even if they ascertained that another person was convicted of the 1993 offence, it would not necessarily follow that the Chief Constable would alter his view as to whether it was appropriate to disclose the information regarding the allegations that were made against the claimant. Nor, on the Tribunal's findings, was there any reason for a reasonable employer to think that there was anything that he could achieve by putting the question that the claimant could not achieve for himself. Indeed, it seems to us that an employer would require to be cautious in any such approach lest it seem that he was seeking to place inappropriate pressure on the Chief Constable, bearing in mind the public interest principles that underly the disclosure legislation. There would be no requirement for a person such as the claimant to exercise such caution given his direct interest in achieving withdrawal or amendment of a disclosure letter.
52. In all the foregoing circumstances, we consider the Tribunal's conclusion that to fail to ask the question was outwith the range of reasonable responses is unsustainable. In suggesting that the question should have been posed by the respondents, we are satisfied that the Tribunal were substituting their own view of what was an adequate response to the information provided at the appeal hearing for that of the objective reasonable employer to whom it would have been open to take the view in all the circumstances, as did the respondents, that it was not for them to make an approach to the police to raise a matter second hand which could have been raised directly by the claimant and which the claimant had indicated at the appeal hearing he was going to raise, particularly when the claimant still had an avenue of appeal to the respondents' Board of Directors open to him .
53. We would add that we accept Mr Bourne's submissions as to the irrelevance of the findings as to what the respondents said they "might" or "would" have done (the Tribunal use both expressions in their findings of fact which leaves the matter somewhat unclear) by way of assistance in the case of a better employee. We note, in any event, that the Tribunal's decision was not based on any view that the dismissal was unfair because the respondents might or would have assisted a better employee in an approach to the police; the argument advanced and sustained was not that the claimant had received less favourable treatment in that respect than was the norm; indeed, there does not appear to have been any evidence as to the respondents having any normal practice in such a case, there being no reference to them having had any other similar prior experience at all. Rather, the Tribunal's reliance on that evidence seems to be for no purpose other than to show that going to the police was something which the respondents accepted could have been done (paragraph 42). But that does not dispose of all the other difficulties to which we have already referred and does not, in particular, amount to a finding as to what would have happened had that occurred.
54. We are satisfied that, in all the circumstances the decision of the Tribunal was plainly wrong. The only conclusion that a reasonable Tribunal could have arrived at, applying an objective standard to the facts of the case, is that it was reasonable for the respondents not to have approached the police and posed the paragraph 40 question and that, in the whole circumstances, the decision to dismiss was a fair one.
55. Mindful of the apprehensions expressed by the Tribunal, we would wish to add that although the outcome of this appeal is that we are satisfied that this claimant was fairly dismissed in circumstances where the trigger for his dismissal was a "soft disclosure" letter, we are not to be taken as holding that every time that an employee is dismissed on the grounds of the existence of such a letter, such a dismissal will be held to have been fair. We can see that it is likely that it will not be difficult for an employer to show that the dismissal was for "some other substantial reason" if it was on the grounds of such a letter. The test for fairness, however, remains as set out in section 98(4) of the 1996 Act and we do not see that a dismissal is to be presumed to have been fair because it is on the grounds of such a letter. Rather, each case is bound to turn on its own facts and circumstances. It so happens that in this case, the whole facts show that the dismissal was a fair one. Matters might well be different in another case notwithstanding that one of the relevant facts is the existence of such a letter.

Disposal

56. We will, in the circumstances, pronounce an order upholding the appeal and dismissing the claim.