United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant in Person
For the Respondent	MR THOMAS LINDEN (One of Her Majesty's Counsel) Instructed by: Allen & Overy LLP 1 Bishop's Square London E1 6AD


 


See: Supplementary Judgment

SUMMARY

UNFAIR DISMISSAL – Reasonableness of dismissal

WRONGFUL DISMISSAL

Employee dismissed because of police "disclosure" that he had been engaged in paedophile activity in Cambodia, notwithstanding his acquittal by a Cambodian court, and that he posed a continuing risk to children.

Held:

(1) That the employer, which had not accepted the disclosure uncritically and had taken reasonable steps to assess its reliability, had been entitled to treat the information as reliable and to dismiss the Claimant on the basis of it in order to avoid potential reputational damage, even though he did not work with children.

(2) That the Tribunal had been entitled to hold that a lack of candour on the part of the Claimant in telling the Respondent the allegations against him constituted a sufficiently serious breach of contract to justify his summary dismissal.


 


THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

INTRODUCTION

1. This is an appeal from the decision of an Employment Tribunal sitting at London South, chaired by Employment Judge Freer, dismissing the Claimant's claims of unfair dismissal and wrongful dismissal. The hearing took place over four days in September 2008, and the Judgment and Reasons were sent to the parties on 18 December 2008. As we explain below, the case involved unproven allegations that the Claimant had had sexual relations with children. In those circumstances the Tribunal thought it right to protect his identity: not only was a restricted reporting order made under rule 50 of the Employment Tribunal Rules but the names of the parties were anonymised in accordance with rule 49 and, most exceptionally, the Reasons were not entered in the register even in edited form. We are not prepared ourselves (and were not asked) to deliver a judgment in private; but we are minded to anonymise our judgment, and to reserve to a closed part any details which might facilitate the identification of the Claimant. However, the basis of our jurisdiction to take this course is not entirely straightforward, and, while the present version is (provisionally) anonymised, we have invited further submissions on this aspect.
2. Before us, as before the Tribunal, the Claimant appeared in person and the Respondent was represented by Mr Thomas Linden QC.

THE FACTS

3. The Respondent is a public authority. We identify it in the closed section of the judgment. All that we need note here is that although its principal functions are not in the field of child protection, some of its responsibilities do explicitly require it to have regard to the interests of children. Its role is such that it is quite regularly in the public eye.
4. The Claimant is a career civil servant and has worked in various government departments. In January 2005 he applied for an advertised position with the Respondent and on 17 March he was offered the job: again, we give details in the closed section of the judgment. We need only say here that the job was at a relatively senior level; that it had an international aspect which involved him in foreign travel; and that it did not involve him working with children or on issues specifically relating to children.
5. In the interval before his new job was due to start the Claimant travelled to Cambodia. He had been there on at least one previous occasion, in January 2004. On that occasion he had become involved with an orphanage in Phnom Penh called the Light House Centre. He says that his interest in the Centre was entirely humanitarian: in particular he helped to arrange dental treatment for the staff and children. During his return visit in April 2005 he was arrested on suspicion of having sexually abused one or more children at the Centre. The arrest was at the instigation of an organisation called Licadho, which campaigns against the sexual abuse of children in Cambodia. The Claimant says that the allegations against him were untrue and malicious; and we were shown witness statements from a former Director of the Light House, from a friend and a former colleague who had visited the staff there in the Claimant's company, and from the "Head of Legal Team" at Fair Trials International which on their face appear strongly supportive of his innocence.
6. The Claimant was released the same day but was not permitted to leave Cambodia pending further investigations. On 26 April 2005 the Phnom Penh Municipal Court Prosecutor's Office, after having interviewed the supposed complainants, directed that the file be "held without processing". The Cambodian criminal justice system follows a broadly continental model, and such a decision should not be equated simply to a decision by the Crown Prosecution Service in this country not to press charges; it has at least a quasi-judicial status. The Claimant says that it can fairly be treated as an acquittal and we are content to describe it as such. In any event, the Claimant was allowed to leave the country.
7. As a result of this episode the Claimant was unable to start work with the Respondent on the date originally planned. He asked for and was granted a short postponement. In the event he started work on 4 May 2005. He did not explain the reasons for the delay in his taking up his post. In due course, however, although he made no formal disclosure to the Respondent, he did tell some colleagues what had happened.
8. The Claimant's acquittal did not bring matters to an end in Cambodia. The complainants - or, it may be, Licadho - appealed, leading to two further hearings in an appellate court, on 14 December 2005 and 19 April 2006, and a final decision in the Supreme Court on 15 May 2007. On each occasion the original decision of the Prosecutor's Office was upheld. The Claimant appears to have visited Cambodia at least once in connection with the ongoing proceedings. On that occasion, which was some time in 2006, he attended the British Embassy in Phnom Penh; and in the course of his visit he threatened to commit suicide because of what he perceived as the inadequacy of the support which he was receiving.
9. The Serious Organised Crime Authority ("SOCA") became aware of the allegations against the Claimant. So also did the British press: there was clearly considerable interest in a potential story about an employee of a public authority being involved in "sex tourism" and paedophilia. As evidenced by the suicide threat referred to above, the Claimant found the situation increasingly stressful. In the course of early 2007 he sent a series of e-mails, some at least from his e-mail address with the Respondent, to SOCA and to a large number of recipients in government departments, the police and a variety of other outside organisations, complaining of what he saw as SOCA's support for his persecution by Licadho and the lack of support he had had from the consular authorities. The e-mails were highly emotional in their tone and ill-judged in their content. In particular, one at least clearly conveyed the (false) impression that the Claimant had spent a substantial period of time in jail in Phnom Penh, in distressing conditions, before his acquittal.
10. The sending of these e-mails was brought to the attention of the Respondent by SOCA in March 2007. The matter was investigated by the Claimant's line manager ("A") and a senior figure in the Respondent's HR department ("B"). The Claimant was clearly still in a very emotional state. After hearing his account – which led them to believe that he had spent a long time in jail – and making what enquiries they could with local lawyers in Cambodia, A and B were satisfied that he was innocent of the wrongdoing alleged by Licadho. However, the sending of the e-mails was treated as a disciplinary offence and on 20 March the Claimant was given a written warning for that offence.
11. It was shortly afterwards that the Supreme Court in Cambodia finally endorsed the Claimant's acquittal. On 22 May he received a letter from the Public Protection Unit of the Metropolitan Police acknowledging "that you have been totally exonerated of any criminal wrongdoing" and offering him assistance in dealing with any continuing attention from the media. The Claimant gave a copy of the letter to the Respondent.
12. Notwithstanding his acquittal, press interest in the Claimant continued. In August 2007 it appeared that a national tabloid might be going to run a story about him. The Respondent supported the Claimant, both as a matter of pastoral concern for him and in its own interests; and in the event no story was published.
13. However events took a more serious turn in late 2007. On 27 November two officers from the Metropolitan Police Child Abuse Investigation Command ("CAIC") asked for a meeting with a senior employee of the Respondent ("C"). Following that meeting C referred the matter to B. He had a telephone conversation with the two CAIC officers, DS Robbins and DS Knight, the following day. We need not set out the detailed contents of the two conversations, of both of which there is a full note. For present purposes it is enough to record that they raised allegations against the Claimant going substantially beyond what the Respondent already knew. The conversations appear to have been of an informal character, but they were followed by an offer by CAIC to provide, on a formal basis, "limited disclosure".
14. At a meeting with B on 13 December CAIC made a formal communication, which B noted as follows:

"(i) In 1999 [the Claimant] was convicted for falsely obtaining prescription drugs and a bus pass. B asked what the drugs [were] although RR did not know.

(ii) In 2000, [the Claimant] purported to be a doctor from Surrey in order to gain access to children in Cambodia. Posing as a doctor he indecently assaulted a child. This allegation was made by an adult.

(iii) Between 2004/5 [the Claimant] has been frequenting brothels in Cambodia known to supply children.

(iv) In 2006 [the Claimant] dispensed with property in Cambodia which was found to contain children's clothing and condoms."

("RR" is DS Robbins.) At the meeting there was some further discussion with the officers. The gist was that CAIC believed that the Claimant posed "a continuing threat to children"; that the officers did not regard the Claimant's acquittal as significant, because of the deficiencies of the Cambodian criminal justice system; that they said that the Claimant had been making e-mail requests to the police under the Freedom of Information Act, implying that the requests were endorsed or supported by the Respondent; and that CAIC were concerned that the Claimant was using his position with the Respondent to get opportunities to travel to Cambodia. On the last point B was able to tell the officers that, with one exception which seems to have been regarded as immaterial, all the Claimant's travel for work had been to mainland Europe: the officers said that that was reassuring but that they knew that he remained "a frequent visitor" to Cambodia. B was told, as the Tribunal found:

"… that the CAIC had much more information in respect of the Claimant and that it was not only in relation to the issues in Cambodia that he was considered to be a risk to children. The information provided to the Respondent was the "the tip of the iceberg"."

The note of the meeting ends:

"... SK said that in particular [the Respondent] should undertake a risk assessment around [the Claimant's] foreign travel, e.g. who he travels with and the level of supervision he is under whilst away, via our management structure.

[B] explored whether they felt there was any merit in [the Respondent] dismissing [the Claimant]. SK said that the impact of this was uncertain – [the Claimant] could still travel to Cambodia ..."."

("SK" is DS Knight.) It appears, though B was not told this at the time, that allegation (iii) originated in a report from the National Criminal Intelligence Service ("NCIS") written at least a year previously: it identified the brothels in question as being in the Svay Pak district of Phnom Penh.

15. B was not entirely convinced by what he heard, but his belief in the Claimant's innocence was somewhat shaken. He was also rather surprised to learn at about this time that the Claimant was intending, after all that had happened, to visit Cambodia again, apparently for a diving holiday. He spoke to DS Robbins again on the phone on 19 December. It transpired that the recent Freedom of Information Act requests to the police mentioned on 13 December were not from the Claimant's e-mail address with the Respondent but from a Yahoo account: DS Robbins' point, however, was that they included references which could be taken to be exploiting his position with the Respondent. DS Robbins amplified the information given about a particular child brothel which the Claimant was said to have visited: he said that the police knew the name of the brothel and that it was known to journalists. He referred to the Claimant having written letters "which contained personal threats to people". He said that the information presented at the earlier meeting "came from at least three different sources including other police forces and that it is a mixture of UK and Cambodian information". DS Robbins also suggested that CAIC feared that the Respondent was more concerned about protecting its reputation than about protecting children, and that that was "limiting the police's ability to share more information with us": B understood that to mean that CAIC feared that if more detailed information were given the Respondent would pass it to the Claimant, who would then pursue the informants.
16. Having received that information, the Respondent sought "communications advice" from its press adviser, D. In a memo dated 17 December D expressed the view that the allegation that the Claimant had visited a child brothel "carries significant risk of reputational damage to [the Respondent] if it is true and if it is covered in the press". He went on to say:

"The communications advice on this matter is relatively simple. In short, [the Respondent] needs to make a judgment call as soon as possible on whether to back the employee or whether we need to take disciplinary action with regards to Point 3. Importantly, we need to avoid at all costs being bounced into making a decision through the story being covered in the media.

If we decide to back the employee because the allegations of visiting a brothel in Cambodia turn out to be false then we need seek evidence to prove his innocence should a story break in the press. Quotes or statements from police or investigators who had looked into the case would provide the evidence.

If we discover that the rumours are true then we need to consider the reputational damage that this would cause [the Respondent] if it was reported in the media. … One of [our] duties is to protect children. If it emerged that we were employing someone who we knew had visited a brothel in Cambodia that employs children then this would become a major news story. It would potentially cause serious damage to [the Respondent's] reputation. It is likely that such a story would prompt the media and perhaps politicians to call for executive resignations at [the Respondent]."

17. On 2 January 2008 the Claimant was asked to a disciplinary meeting the following day, to be conducted by A and B. At the meeting he was shown the notes of the conversations with the CAIC officers on 27 and 28 November and on 13 December. His attention was drawn in particular to the four points formally disclosed on the third occasion. He was also told about the conversation on 19 December. Each of the four disclosures was then gone through and discussed in some detail. It is sufficient for present purposes to say that the Claimant denied each of them (save that he accepted that he had a spent conviction for making a copy of his wife's season ticket): it could be said, however, that on some points his denial was not very straightforwardly expressed. There was then an adjournment. In due course A and B returned and told the Claimant their decision. The relevant part of the note of the meeting reads:

"… [They] had considered [the Claimant's] points and that whilst they accepted that Point 1 was a now a spent conviction and Point 2 has not been charged in court, Points 3 and 4 remained. As a result [the Respondent] had to accept the Metropolitan Police advice that [the Claimant] continued to be a risk to children.

[B] said that this breached trust and confidence which was at the heart of the employment contract. We are therefore dismissing you under Stage 4 of [the Respondent's] disciplinary procedure.

[The Claimant] said wow. On no substantial evidence.

[B] said based on what we have been given from the police. [B] said we are sorry and that he didn't know what else he could say."

It was made clear that the dismissal was with immediate effect.

18. The decision was confirmed in a letter from B of the following date in essentially the same terms. In particular, the second paragraph reads:

"As we discussed at the meeting, the Metropolitan Police have provided us with a limited disclosure in which they informed [the Respondent] that they consider you to pose an ongoing threat to children. This information has led to a breakdown in the relationship of trust and confidence which is a fundamental part of your employment contract with [the Respondent]. As a result of this breakdown, [the Respondent] has decided to terminate your employment with immediate effect. You are not entitled to any period of notice or payment in lieu of notice."

It is worth emphasising that neither then or subsequently did the Respondent seek to justify the Claimant's dismissal on the basis that he was in fact guilty of the matters disclosed by CAIC.

19. The Claimant replied on the same day. He said:

"I am surprised and very grateful that you were able to hold out for me for so long. … [B] although I did not know you well, [A] spoke very highly of you, and told me of your support for me. Thank you and the best of luck to you."

He also e-mailed A as follows:

"I respect that you all took decisions weighing your responsibilities and acted in good faith. I do not lump [the Respondent] with those who have exploited my very weak hand in order to tread on it".

20. The Claimant appealed. The appeal process was conducted by the Respondent's Director of Human Resources ("E"). There was an initial hearing on 23 January 2008. The Claimant asked E what specific allegations the Respondent was relying on in respect of its decision to dismiss him. E responded that the decision to dismiss had been based on the totality of his case and circumstances following the CAIC limited disclosure. This had effectively resulted in a loss of trust and confidence in him as an employee. The Claimant said that the Respondent was being misled by junior members of the Metropolitan Police. E adjourned the hearing to carry out further investigations.
21. On 31 January E met DS Robbins and DS Knight. The relevant parts of the note of that meeting read:

"RR confirmed that a limited disclosure is, in essence, about passing on enough information so that employers can make an informed decision to manage the risk an individual may pose to children or vulnerable adults. He confirmed that they have a wealth of material regarding [the Claimant's] activities and tried to make a measured and informed decision on what to pass on to [the Respondent], as a third party. SK stressed that the decision to dismiss was purely [the Respondent's] decision and they did not ask [the Respondent] to do that.

In making a limited disclosure to [the Respondent], RR said that they had taken [the Claimant's] right to privacy into consideration; he confirmed that in balancing an individual's rights against those of children, the latter are paramount. He went on to advise that the approach they used with [the Respondent] is one the Met and other Police Authorities have adopted in light of the Bichard Inquiry and subsequent recommendations; it supports and encourages information sharing for the protection of children/vulnerable adults … .

[E] asked RR/SK to confirm if a superior officer was involved before deciding to make the limited disclosure to [the Respondent] and, if so, how.

Both confirmed that SK was not involved in any stage of the investigations or research, etc leading up to the limited disclosure. SK explained that she is the senior officer (senior to RR) and she provides independent overview as authority, as well as an internal safeguard to ensure that officers do not undertake personal vendettas, etc. RR went on to confirm that he had taken legal advice before coming to [the Respondent] … .

Both SK and RR confirmed that they were aware of the letter of 22 May 2007, although not the contents. They advised that local police had made a local decision, based on public protection. RR confirmed that the information they are working on is different so the letter, and its contents, have no bearing on the decision to make a limited disclosure to [the Respondent]."

E also spoke to A and B. They said that the CAIC disclosure had changed their view about the allegations against the Claimant. They also said that at the meeting with him on 3 January they had found him erratic and unreliable in his explanations and they no longer felt they could rely on what he was telling them. The Tribunal summarised E's conclusions as follows:

"[She] considered all the circumstances, but in particular she was aware of the duty on the Respondent in respect of its obligation to protect the interests of children and that the Respondent was involved in a range of initiatives consistent with this obligation. She therefore concluded that the Respondent had been left with no alternative other than to dismiss the Claimant given the CAIC limited disclosure that the Claimant was a continuing risk to children."

By letter dated 7 February she dismissed the appeal.

THE UNFAIR DISMISSAL DECISION

THE ISSUE

22. S. 98 of the Employment Rights Act 1996 reads as follows:

"(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 (or, if more than one, the principal 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.

(2) A reason falls within this subsection if it –

(a) …

(b) relates to the conduct of the employee,

(ba)-(d) … .

(2A)-(3) …

(4) In any other case 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.

…".

23. The Respondent's case as to the reason for the Claimant's dismissal was pleaded at para. 49 in its Grounds of Resistance as follows:

"The Claimant was dismissed fairly on the basis of the breakdown of the fundamental relationship of trust and confidence between the parties following the CAIC disclosure that the Claimant was a continuing threat to children. The Claimant's dismissal was effected in a fair and reasonable manner and was for a substantial reason of a kind such as to justify the dismissal of the Claimant, consistent with section 98(1) of the Employment Rights Act 1996 (ERA)."

In the usual shorthand, therefore, the Respondent was relying on "SOSR" – that is, "some other substantial reason" within the meaning of s. 98 (1) (b). No case was pleaded that it was entitled to dismiss the Claimant by reason of his conduct, within the meaning of s. 98 (2) (b).

THE TRIBUNAL'S REASONING

24. The Tribunal's consideration of the unfair dismissal claim is at paras. 75-110 of the Reasons. We need not set it out in full. The Tribunal proceeded by a series of headings. What it said in relation to each can be summarised as follows:

(1) The reason for dismissal. At paras. 77-79 the Tribunal found as follows:

"77. The Tribunal is satisfied that the reason for dismissal was that due to the information provided to the Respondent by the CAIC, there had been a breakdown of mutual trust and confidence between the Respondent and the Claimant.

78. The Respondent had received information from the CAIC. The Respondent pressed the matter with the CAIC, both when it was first raised and again during the appeal process. The Respondent balanced the CAIC information against the Claimant's explanations and considered that it could not ignore the CAIC disclosure. The reason for dismissal was made clear in the dismissal letter.

79. [E] had fully investigated the reason for dismissal with [B] and [A]. The reason for upholding the appeal was made clear in the letter upholding the decision to dismiss the Claimant."

It went on at para. 80 expressly to reject an argument on the part of the Claimant that the he was dismissed "due to pressure from the Respondent's CEO": we understand the case to have been, based on D's memo of 17 December 2007, that the CEO was concerned for his job. It also dismissed any suggestion that A, B or E made their respective decisions "in order to save their own jobs". It emphasised at paras. 81 and 82 how supportive A and B had been of him in the past and that the Claimant had recognised that at the time.

(2) Statutory procedures. The Tribunal found that the statutory disciplinary and dismissal procedure had been complied with. It does not in fact seem that this was in issue.

(3) Reasonable investigation. The Tribunal made clear at para. 76 of the Reasons that it intended to take into account the guidance in British Home Stores Ltd v Burchell [1980] ICR 303n., while noting that it was not directly applicable since this was presented as a "SOSR" and not, as such, a "conduct" case. The issue of "reasonable investigation", one of the elements of a fair dismissal identified in Burchell, thus fell for consideration. The Tribunal considered that issue at paras. 85-94. While it had some marginal criticisms, the Tribunal held that the Respondent had carried out a reasonable investigation in all the circumstances. It emphasised in particular how B had not simply accepted what he had been told by the CAIC officers but had pressed them for more information and explanation of their sources; and how E likewise had insisted on her own meeting with them. It addressed two particular points made by the Claimant – (a) that the Respondent could have obtained a Criminal Records Bureau check as to whether the Claimant had indeed a record for "falsely obtaining prescription drugs"; and (b) that it could have done research on the internet which would have established that the Svay Pak brothels were closed at the times that he was supposed to have visited them. As to (a), the Tribunal found that the drug allegation had been peripheral to the Respondent's decision. As to (b), the Tribunal noted that CAIC itself had not mentioned Svay Pak but found that such evidence would have been inconclusive in any event.

(4) Reasonable reliance on the reason for dismissal. The Tribunal stated its conclusion that:

"when objectively considering all the circumstances, … the Respondent could reasonably conclude that there was a breakdown of trust and confidence with the Claimant"

(Reasons para. 95). It rejected the Claimant's point that the Respondent had reached its decision without any supporting evidence, on the basis that the CAIC information "could reasonably be considered by the Respondent to be expert evidence from a statutory body" (para. 96). It also held that the A and B – and E in reliance on them – were entitled to take into account the impression that the Claimant made on them at the meeting on 3 December. It concluded this part of its reasoning by saying this:

"102. The CAIC approach places employers and employees in a difficult position, by simply providing information relating to an employee without making any significant corroborative material available. Although, the Tribunal recognises and understands the necessity for the CAIC to preserve the integrity of its information.

103. DS Robbins stated to [E] that the disclosure was designed to alert the Respondent of the CAIC concerns and to give the Respondent enough information to "manage the risk". However, where an employer has a responsibility for the care of children, this will almost inevitably result in the employer reviewing the continued employment of the individual concerned.

104. The Respondent had undertaken its own investigation into the Cambodian matter when it first arose and had assured itself, as far as was reasonably possible, that it should accept the Claimant's account of events. However, the information provided by the CAIC appeared to conflict with the Respondent's initial view on some aspects. To the Respondent's credit, it did not simply accept the information proved by the CAIC but, as far as was possible, pursued further confirmation, clarification and information. The Respondent assured itself that the process was genuine and had been overseen by a senior officer. In the circumstances there was little else the Respondent reasonably could do other than to rely on the integrity of the CAIC process.

105. The Tribunal found itself in a similar position when considering the reasonableness of the Respondent's actions in this matter. It appeared that the information given to the Respondent by the CAIC raised the same concerns with the Tribunal, the Claimant and the Respondent - whether the Respondent was being provided with untested allegations. The CAIC had confirmed to the Respondent that it was not investigating the Claimant. In the circumstances there is no alternative other than to place reliance on the presence of appropriate integrity and safeguards within internal CAIC processes concerning both the accuracy of the information supplied and the likely effects of that disclosure, before such information is provided to employers - that there was real and cogent evidence of a pressing need for disclosure (see for example R -v- Local Authority and Police Authority in the Midlands ex parte LM [2000] 1 FLR, HC QBD.

106. In the Tribunal's view, the Respondent in this case dealt with the information it received as responsibly could be expected and it was reasonable for the Respondent to rely upon the information provided to it.

107. In all the circumstances, the Respondent had information available to it upon which it could reasonably conclude that there had been a breakdown in trust between the Respondent and the Claimant."

The Tribunal's formulation in para. 107 that the Respondent "had information available to it upon which it could reasonably conclude" that trust and confidence had broken down is not quite right, inasmuch as it conflates two questions – (a) whether the Respondent was entitled to proceed on the basis that the CAIC information was reliable; and (b) whether, if so, that justified it in no longer having trust and confidence in the Claimant. But it is clear that the Tribunal meant to answer both questions in the affirmative.

(5) Dismissal as a sanction. The Tribunal dealt with this question in a single paragraph, para. 108, as follows:

"The Tribunal is satisfied that the Claimant's dismissal fell within the range of reasonable responses. The reason for the Claimant's dismissal was a breakdown in trust and confidence that amounted to some other substantial reason. Given the nature of the Respondent's organisation, the nature of the allegations, and the nature of the Claimant's role, the Tribunal concludes that it was within the range of reasonable responses for the Respondent to dismiss the Claimant. There were no reasonable alternatives available."

(6) The general test of fairness. This heading covers certain general observations, as follows:

"109. It follows from the above and when considering all of the circumstances as a whole, including equity and the substantial merits of the case, that the Respondent acted reasonably in treating the reason for dismissal as being a sufficient reason for dismissing the Claimant. Accordingly, the Claimant's claim of unfair dismissal is not well-founded.

110. The Claimant strongly contends that the circumstances that have befallen him as a consequence of his trip to Cambodia in early 2005, are due to a deliberate misrepresentation by others of a benign act of kindness on his behalf. If true, the Tribunal is aware that it has added to the Claimant's list of negative consequences. However, the Tribunal should clarify that its judgment is not a finding that the Claimant is guilty of the principal matters raised in the CAIC disclosure. That is not the test to be applied. The test, generally stated, is the reasonableness of the employer's reliance on the reason for dismissal on the facts known to it at that time."

DISCUSSION AND CONCLUSION

25. As the Tribunal acknowledged, its employment of the Burchell test was non-standard, since this was not presented as a "conduct" case. Important as such guideline cases are, there are dangers in seeking to apply them outside the kind of case at which they are directed. The safest course in any case which is out of the ordinary is always to go back to the terms of s. 98 of the 1996 Act. We have to say that we also do not find the terminology of "trust and confidence" particularly helpful, although we appreciate that it derives from the way in which the Respondent pleaded its case. It seems to us that in those circumstances it will be best to proceed by setting out what we believe to be the correct approach to a case of this kind and then to consider the Tribunal's findings in the light of that analysis.
26. The situation which we are here considering is one where a police force, or another public authority, makes an unsolicited disclosure to an employer that an employee poses a risk to children. In practice that is – whether it is spelt out or not – generally a statement that the employee is believed to have committed offences against children in the past: it is his past conduct which is the basis of the belief that he poses a current risk. In the present case CAIC told E that they were acting in accordance with arrangements instituted in the light of the Bichard inquiry (which followed the Soham murders)^[1], but there are other systems in place in particular fields.
27. Where the facts relied on are objectively established in the form of a relevant conviction, no difficulty of principle arises. But where they depend on untested information – or where indeed the employee has been acquitted in relation to the very facts relied on – the position is very different. It sticks in the throat that an employee may lose his job, and perhaps in practice any chance of obtaining further employment, on the basis of allegations which he has had no opportunity to challenge in any court of law - or may indeed have successfully challenged. On the other hand, it has to be recognised that there are cases where it is necessary for employers to be warned of facts which indicate that an employee (or potential employee) is a risk to children, even in the absence of any conviction. The courts have had to grapple in a number of cases with how the balance should be struck: see, for example, the case of LM referred to by the Tribunal at para. 105 of the Reasons (see para. 24 (5) above) and, most recently, R (Wright) v Secretary of State for Health [2009] 1 AC 739. But in an unfair dismissal case an employment tribunal is not concerned with the rights and wrongs of the disclosure system, or even – subject to the points we make below – with how it has been operated in a particular case. If the system is inconsistent with an employee's fundamental rights or has been abused by the relevant authorities, the employee's primary remedy must be against those making the disclosure.^[2] The focus of the employment tribunal's inquiry has to be on how the employer should reasonably have acted when such disclosure is made to him. That, axiomatically, follows from the language of s. 98 (4) – cf. the recent decision of this Tribunal in Henderson v Connect (South Tyneside) Ltd (UKEAT/0209/09).
28. In our judgment an employer who receives information from CAIC or a similar body, under an official disclosure regime, that an employee poses a risk to children must, in principle and subject to certain safeguards, be entitled to treat that information as reliable. That was what the Tribunal held at para. 105 of the Reasons; and we think that it was right. In our view it is plain that an employer in such a case cannot be expected to carry out his own independent investigation in order to test the reliability of the information provided by a responsible public authority. He will typically have neither the expertise nor the resources to do so. We deliberately use the phrase "treat the information as reliable". In the case of a dismissal for misconduct, as analysed in Burchell, it is said that an employer must have formed a genuine belief in the employee's guilt. That is not quite the same thing. In a case of the present kind, the justification for treating the employee as posing a risk to children is not, as such, the fact that the employer himself believes (after his own investigation) that to be the case but, rather, the fact that a responsible authority has told him that it is so. In many, perhaps most, cases he may on that basis believe in the truth of what he has been told, but that does not appear to us to be a necessary element.
29. We have said that the employer is entitled to rely on the information "in principle and subject to certain safeguards". In our view, an employer will not be acting reasonably for the purpose of s. 98 (4) if he takes an uncritical view of the information disclosed to him. Mistakes do sometimes happen^[3]; and the consequences when they do are devastating for the employee. The employer ought therefore always to 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. He will sometimes be in a position, either from his own knowledge or from information obtained from the employee, to raise questions about the reliability of the disclosed information: in such a case he ought, in the interest of fairness, to put those questions to the authority providing the information and to seek credible reassurance that all relevant information has indeed been taken into account.
30. The first question in the present case must therefore be whether the Respondent discharged that obligation. It is clear that the Tribunal believed that it had. As set out at para. 24 (3) above, it considered the question on the basis that the requirement was equivalent to the requirement of "reasonable investigation" in Burchell. We are not sure that the analogy is a useful one since the two situations are far from identical. But labels are not important. What matters is whether the Respondent did indeed adopt an appropriately critical approach. In our view the Tribunal's finding that it did so is unimpeachable. The Claimant submitted before us, as he had done in the disciplinary proceedings and before the Tribunal, that the Respondent should have rejected the crucial "element (iii)" in the disclosure because of the information which he supplied to the effect that the Svay Pak brothels were not operating at the relevant times; but the information in question was not of such a character that the Respondent was obliged to find that the CAIC's information could not be relied on. The Claimant made the point in his Notice of Appeal that the Respondent in the exercise of its statutory responsibilities frequently had to carry our complex factual enquiries, but we do not accept that that fact means that it is equipped to carry out the kind of exercise that would be involved in checking the information given by CAIC or that it would be appropriate for it to do so. Likewise, we find the Claimant's suggestion that the Respondent should have sent a senior member of management to Cambodia to speak to the alleged complainants – he said that he would have funded such a visit – wholly unrealistic: CAIC, and its sources, were plainly much better qualified to evaluate such evidence than any manager could be, and the allegations in any event went beyond those which had led to the Claimant's original prosecution.
31. That, however, is only the first stage. Even if the Respondent was entitled to treat the disclosed information as reliable, and thus to treat the Claimant as posing a risk to children, it remains to consider whether that was a sufficient reason for dismissal: see s. 98 (4) (a). This is not straightforward. The conduct disclosed by the CAIC information did not occur while the Respondent was at work (or travelling for work). 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 (though it might be necessary to consider whether suitable alternative employment were available, at least in a case where the allegations were unproven). But this is not a case of that kind. The Claimant's job did not involve him working with children in any way. If he had in fact committed offences against children, or did so in the future, it would not be because of any opportunities peculiarly afforded by his work - subject, perhaps, to the question of foreign travel which we consider at para. 32 below. No doubt for that reason the Respondent put its case not, as such, on the need to protect children but on the fact that CAIC's disclosure had led to a breakdown in its trust and confidence in the Claimant; and that is the case which the Tribunal accepted – see paras. 95 and 107 of the Reasons, quoted at para. 24 (4) above. We have already observed that we do not regard that language as helpful. We have observed a growing trend among parties to employment litigation to regard the invocation of "loss of trust and confidence" as an automatic solvent of obligations: it is not^[4]. In the present case it is necessary to identify more particularly why CAIC's disclosure is said to have, in effect, made it impossible for the Respondent to continue to employ the Claimant.
32. Unfortunately this question is not explicitly considered by the Tribunal. The nearest that it comes to it is the finding in para. 108 that dismissal was reasonable "given the nature of the Respondent's organisation, the nature of the allegations, and the nature of the Claimant's role". That is decidedly summary. But its brevity appears to reflect the way the case was argued before the Tribunal: the Claimant's written submissions, which we have seen, focused essentially on the question whether it was right to take action on the basis of mere allegations (though there was also a challenge to the adequacy of the Respondent's investigation), and he seems to have tacitly acknowledged that if, contrary to his case, the Respondent was entitled to proceed on the basis of what it was told by CAIC dismissal was indeed reasonable. In any event, however, it seems to us adequately clear what the Tribunal had in mind. The Respondent is a high-profile public authority. Its responsibilities, as we have indicated, cover at least some aspects of child protection. The Claimant had a senior representative role on behalf of the Respondent. Although his work had not so far taken him to Cambodia or other destinations associated with "child sex tourism", if he was indeed a paedophile there was plainly, as CAIC pointed out, a concern that he would take advantage of any foreign trips to engage in sexual activities with children: even in countries with no particular reputation for child prostitution, a visitor has opportunities to behave in ways which are less easy at home. If he was in due course shown – by a subsequent conviction or by some other form of authoritative exposure – to have committed offences against children (and in particular if he had done so while travelling abroad for work) it would cause the Respondent serious reputational damage, as recognised in D's memo quoted at para. 16 above. That damage would of course be greatly exacerbated if it emerged that the Respondent had been warned about the Claimant's activities by the responsible authorities but had taken no action.^[5] (We note, for completeness, that the Tribunal's reasoning does not appear to be based on any personal difficulty that A or other colleagues who were in the picture might have felt in dealing with the Claimant in the light of what they now knew.)
33. The question thus is whether the risk of such reputational damage was a sufficient justification for the dismissal of an employee against whom nothing had in fact been proved. We do not find that question particularly comfortable. In a case of this kind, not only is it not established that the employee is in fact a danger to children but, even if he is, the dismissal will not significantly reduce the risk of his offending (since opportunities for offending are not afforded by the employee's job^[6]) but is concerned solely with saving the employer's reputation. That is much less evidently justifiable. Nevertheless, after careful reflection we have come to the conclusion that in the circumstances of the present case the Tribunal was entitled to regard the dismissal of the Claimant as justified. It was in our view legitimate for the Respondent, in its particular position, to be jealous of its public reputation: it was entitled to take the view that to continue to employ, in the position in question, a person who it had 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.^[7] We are acutely aware, as was the Tribunal, that to justify the Claimant's dismissal on the basis of reputational risk in the absence of any established misconduct may involve a grave injustice to him. But it is essential to bear in mind that under s. 98 the central question is what it was reasonable for the employer, in the relevant circumstances, to do. 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. (This distinction does indeed appear at one point to have been recognised by the Claimant: see his e-mails quoted at para. 19 above.)
34. In his Notice of Appeal the Claimant submitted that his dismissal constituted an infringement of his rights under both art. 6 and art. 8 of the European Convention of Human Rights; and thus also, the Respondent being a public authority, that it had acted in breach of its obligations under s. 6 (1) of the Human Rights Act 1998. If that were correct, it is common ground that it would be – to put it no higher – material to the issue of unfairness. We will consider separately the position as regards art. 6 and art. 8.
35. As regards art. 6, the Claimant appeared to rely on both art. 6.2, which enshrines the presumption of innocence in the case of any person charged with a criminal offence, and on the general right to a fair hearing for the determination of a person's civil rights accorded by art. 6.1. It is in our view quite clear that art. 6.2 has no application. Even if the Respondent had purported to dismiss the Claimant on the basis that he had committed a criminal offence, a disciplinary hearing by an employer does not constitute the hearing of a criminal charge: in fact, of course, the Respondent did not in any event dismiss the Claimant on that basis. As regards art. 6.1, Mr Linden submitted that it was not engaged, because the Respondent's decision to dismiss the Claimant involved no determination of his civil rights. In our view that submission was correct. We were referred to the case of R (G) v Governors of X School [2009] IRLR 434, in which Stephen Morris QC, sitting as a deputy High Court Judge, held that art. 6.1 applied to disciplinary proceedings against a teacher. But it was central to the Judge's reasoning in that case that the proceedings in question did not simply determine the question of dismissal but constituted the first stage of a procedure under the Education (Prohibition from Teaching or Working with Children) Regulations 2003 which might result in a statutory direction preventing the employee working with children in any capacity. It is well-recognised that procedures having that effect fall within the scope of art. 6.1 – see Wright (above) – but there is no such context in the present case. (Since the argument before us the Court of Appeal has upheld the decision of the Judge ([2010] EWCA Civ 1) for, so far as material for present purposes, essentially the reasons that he gave.)
36. The Claimant did not in fact rely before the Tribunal on any alleged breach of art. 8; but he sought to do so before us. This is not of course a case, like Pay (above) or X v Y [2004] ICR 1634, where an employee is dismissed because of his admitted sexual conduct but maintains that such conduct is part of his private life: here, the Claimant entirely denies the conduct alleged. Rather, the Claimant's case was that his dismissal inhibited his chance to obtain employment generally and that that was properly to be regarded as an aspect of his private life protected by art. 8. It is certainly now recognised that restrictions on the opportunity to obtain employment may fall within the scope of art. 8: see Sidabras and Dziautas v Lithuania (2006) 42 EHRR 6, and the discussion by Lady Hale at paras. 30-37 of her speech in Wright (see at pp. 752-3). But we do not think that that assists the Claimant here, for similar reasons to those set out above in relation to art. 6. The Respondent in the present case was not itself placing any general inhibition on the Claimant's chances of obtaining work: it was simply dismissing him from its own employment. The truth is, as we have already observed, that if the Claimant has any claim under s. 6 of the 1998 Act it properly lies against CAIC, who disclosed the information on which, as we have held, it was reasonable for the Respondent to rely.
37. We believe that we have in the course of the foregoing analysis dealt, expressly or implicitly, with most of the points raised by the Claimant in his Notice of Appeal and skeleton argument. We will nevertheless briefly review the grounds there advanced. Under the heading "Unfair Dismissal" on the third page of the Notice of Appeal the Claimant identifies three grounds of appeal. We take them in turn.
38. The first ground is that his dismissal was in breach of his Convention rights. We have considered this above. We would only add that even if, contrary to our view, either art. 6 or art. 8 were engaged we are very doubtful whether that would on the facts of the present case add anything of substance to the consideration whether the Respondent had acted fairly in deciding to dismiss the Claimant.
39. The second ground is that the Tribunal failed to "take account of binding precedents": the Claimant refers to "considerable case law relating to dismissal linked with sexual offences against children and where disclosures have been made". We were indeed referred to a large number of such cases: these included, in addition to those already referred to above, Saunders v Scottish National Camp Association Ltd [1980] IRLR 174 (a case which might not be decided the same way today); P v Nottinghamshire County Council [1992] IRLR 362; Securicor Guarding Ltd v R [1994] IRLR 633; A v B [2003] IRLR 405 and B v A (UKEATS/0029/06). But none of these cases is on all fours with the present case. Several of them, unsurprisingly, recognise the legitimacy of dismissing an employee on the grounds that his (proved or admitted) sexual behaviour is inconsistent with his job responsibilities – see, e.g., P v Nottinghamshire County Council; X v Y; and Pay. But, as the Claimant points out, the present case is different both in that the conduct alleged against him is neither proved nor admitted and in that it has no direct relationship to his work. It was common ground before us that that combination of features is not to be found in any of the decided cases. But that does not justify the submission that there was "binding precedent" that the Claimant's dismissal should be held to be unfair.
40. Thirdly, the Claimant relied on a number of specific alleged errors in the Tribunal's reasoning. The pleading is, with respect to him, plainly a layman's document, and we do not reproduce his precise language. We can deal with the substance of the points raised as follows:

(a) By reference to paras. 78-82 of the Reasons, the Claimant contends that the Tribunal did not ask itself what had occurred between early December 2007, when the Respondent was not minded to act on CAIC's initial communications, and the decision at the end of the month to initiate disciplinary proceedings. His underlying point is that the only real change was the concern about reputational risk generated by D's memo of 17 December (see para. 16 above). The obvious answer to the Claimant's question is that what had changed was the formal disclosure made on 13 December, with the further information supplied to B on 19 December (see paras. 14 and 15). But in any event we do not accept that reputational risk was an inadmissible consideration: see para. 33 above.

(b) By reference to paras. 83-84 of the Reasons, the Claimant contends that both the original disciplinary hearing and the appeal hearings were "drumhead courts", and that the decision-takers had already conclusively made up their minds. But that was plainly not the view of the Tribunal.

(c) Under the heading "reasonable investigation" the Claimant contends that the Respondent could have done more to question CAIC's allegations. But we can see no basis on which the contrary conclusion of the Tribunal can be challenged: see para. 30 above.

(d) Under the heading "reasonable reliance on the reason for dismissal" the Claimant observes:

"A breakdown of trust and confidence was inevitable given the information provided by the CAIC. But such a breakdown is not a reason for dismissal in itself if it is not linked to acts of misconduct on the part of [the Claimant]."

It will be apparent from what we say at para. 31 above that we are sympathetic to the submission that it was not enough for the Respondent simply to assert – or indeed prove - that its trust and confidence in the Claimant had broken down. But in the particular circumstances of the present case we do not believe that it was necessary for the Respondent to prove that that breakdown was as a result of misconduct on the part of the Claimant: it was entitled to rely on the disclosure by CAIC and the concerns raised by that disclosure.

(e) By reference to para. 96 of the Reasons, the Claimant contends that it is inconsistent for the Tribunal to hold that the Respondent was entitled to regard CAIC as "experts" while at the same time recording that A and B were initially sceptical. We can see no inconsistency here.

(f) The Claimant contends that it was unfair of A and B to draw any conclusions from their concerns about his manner at the disciplinary hearing (see para. 21 above). It was, he said, unsurprising that he was unable to deal convincingly at short notice with a mass of further material, particularly in the light of the stresses that he was under. So far as we can see, this part of the evidence did not play a significant role in the Tribunal's reasoning; but in any event questions of this kind are quintessentially matters of factual assessment.

(g) Finally, the Claimant contends that there were ways other than dismissal of managing the risk which he supposedly posed to children: in particular, he could have been moved to a role which did not involve foreign travel. But that does not address the real justification for the dismissal as the Tribunal found it to be. As noted at paras. 32-33 above, the Claimant was not dismissed wholly or mainly in order to protect children but because of the impact of CAIC's disclosure on the Respondent's trust and confidence in him, in the sense there analysed. In any event, the Tribunal made an express finding at para. 108 that there was no alternative post available for him. The Claimant had not identified any particular vacancy which he says he could have been suitable for, and the Tribunal's finding of fact on this point seems unimpeachable.

41. We accordingly dismiss the appeal as regards the unfair dismissal claim.

WRONGFUL DISMISSAL

42. The Claimant was dismissed summarily. Such a dismissal was wrongful unless the Respondent could prove that he had himself committed a sufficiently serious breach of contract to justify his dismissal without notice. Consistently with its overall position, the Respondent did not seek to rely on the conduct alleged against the Claimant by CAIC. Rather, it relied on a number of particular acts and omissions under the general heading of "lack of openness". Its broad case was that throughout his employment – and more particularly from March 2007 when it first learnt of his e-mail campaign – it had shown the Claimant considerable sympathy and support, and that it was incumbent on him in return to be fully candid with it and to disclose anything that might be relevant to a situation which was potentially damaging for both parties; but he had not done so. In particular it alleged that:

(a) There had been far more press coverage in Cambodia than the Claimant had ever revealed to the Respondent; and in particular there had been a public dispute with a British government agency about whether he had been employed by them.

(b) He had not told the Respondent about the suicide threat which he had made at the British Embassy in 2006 (see para. 8 above).

(c) After he had been disciplined for conducting his e-mail campaign from the Respondent's address, he continued to pursue an e-mail correspondence with the police and other authorities. Although he now used his personal e-mail address, the Respondent's point was that it was entitled to expect that the Claimant's e-mail campaign, which if course had the potential to draw it into embarrassing publicity, would simply have been dropped; but it was also its case that the e-mails were at least partly sent in working time^[8] and that they continued to mention the Claimant's role as an employee of the Respondent.

(d) The Claimant had in mid-2006 been given a copy of the NCIS report, including the allegation that he had visited brothels in Svay Pak, but he had not notified the Respondent, even though this clearly widened the scope of the allegations against him.

(e) The Claimant had given the misleading impression that he had been in prison for some time in Cambodia prior to his acquittal: see paras. 9 and 10 above.

43. The Tribunal recited those points at para. 113 of the Reasons and continued:

"114. After considering carefully all the circumstances, the Tribunal reaches the view, objectively considered, that the Respondent was entitled to summarily dismiss the Claimant. The Tribunal has had particular regard to the Claimant failing to informing management of the potential publicity generated by the Cambodia issue, the nature of the attempted suicide and the continuing contact with external organisations via e-mail after the issue was brought to a head in March 2007.

115. Although the Tribunal found this a difficult decision, it concludes that these circumstances do amount to a fundamental breach of contract and that summary dismissal was available to the Respondent."

It noted (at para. 111) that some of the matters relied on were not known to the Respondent at the time of the dismissal: in particular, it was apparently only at the hearing before the Tribunal that the Respondent appreciated that the Claimant had not been detained in April 2005 for more than a few hours. But it accepted that as a matter of law that did not prevent it relying on the breaches alleged: it had previously referred to Boston Deep Sea Fishing and Ice Co. v Ansell (1888) 39 Ch D 339.

44. The Notice of Appeal challenges that decision essentially on the basis that, whether or not the Claimant could have been more open with the Respondent prior to the disciplinary proceedings in March 2007, he made full disclosure on that occasion (including showing the Respondent a copy of the NCIS report): from that stage, the Respondent knew everything. He submits, that accordingly, "Ansell does not apply". That is, with respect, not quite the right way of putting it; but the underlying point is that the Respondent had waived its right to rely on any pre-March 2007 breaches.
45. In our view it is plainly right in principle that the Respondent cannot justify a summary dismissal in January 2008 on the basis of matters not disclosed prior to March 2007 if they were disclosed at that time. But that does not definitively dispose of the five points identified above. The Tribunal found (at para. 91 of the Reasons) that the Claimant had in fact sent B an e-mail, apparently at or around the time of the March 2007 investigations, which referred to the NCIS allegation that he had visited the Svay Pak brothel area (though B had not taken in this detail); and a note of the investigation meeting in March also records that he showed A (though it is not clear that he gave him a copy) "a document from SOCA … that effectively places him under suspicion of child abuse" - we were told that this was the NCIS report. That substantially reduces, if it does not wholly dispose of, the force of the Respondent's point (d). But as regards the other four points:

- It was not suggested that the Respondent was told about the dispute as to who the Claimant's employer was.

- The Claimant accepts in his skeleton argument that he did not tell the Respondent about the suicide threat at the British Embassy.

- The issue of the continuing e-mails post-dates March 2007.

- As already noted, it was only at the hearing that the Respondent learnt that the Appellant had not been detained in a Cambodian jail.

46. The Claimant did not explicitly submit to us that, even if the conduct complained of had not been properly disclosed, it was not of sufficient gravity to justify summary dismissal. Nevertheless we have thought it right to consider that question. We have not found it altogether easy. The relevant factual findings are brief. Given that the Claimant had on any view in March 2007 made fairly extensive disclosure to the Respondent it is debatable whether he was obliged to recount every detail of his ordeal – e.g. as regards the suicide threat; and even if he was not as fully forthcoming as he should have been it does not follow that any breach of duty was fundamental. On the other hand, it is necessary to look at the breaches alleged cumulatively: if, taking them together and in the context of its overall judgment about the Claimant's attitude, he could be regarded as having not simply made a misjudgement about what to tell his employers but as having deliberately given a distorted or incomplete picture, then such a lack of frankness would, in a matter of this importance, go to the root of the relationship. Although the Tribunal deals with the issue in fairly summary terms, we have no reason to doubt its statement that it carefully considered all the circumstances: and that is indeed lent credibility by its acknowledgment that the decision was a difficult one. We do not feel able to say that its decision was one to which it could not reasonably have come.
47. We accordingly dismiss the appeal also on the issue of wrongful dismissal.

POSTSCRIPT

48. We have found this a worrying case. It is not our role, and we are in no position, to make a judgment as to whether the Claimant has committed offences against children. The Metropolitan Police clearly believe that he has, and it would, or in any event should, not have formed that belief without reliable information. But it is only fair to record that the Claimant has been (in effect) acquitted in the only proceedings brought against him; and he has, as indicated at para. 5, produced apparently powerful statements in support of his innocence. If he is indeed innocent, he has suffered a very grave injustice. But the risk of such injustice is inherent in a system where the police are permitted to make apparently authoritative "disclosures" of the kind made here, unsupported by any finding of a court; and it will no doubt be said that that risk is the price that has to be paid for achieving the protection of children. In any event, as we have already emphasised, the question for the Employment Tribunal was not, as such, whether the Claimant had suffered an injustice but whether the conduct of the Respondent towards him was fair. If he was treated unfairly by CAIC his remedy is against them.
49. Having said that, and acknowledging that our concern is with the Respondent's conduct and not that of CAIC, we feel bound to record that the evidence before the Tribunal raises a concern whether the CAIC officers acted with the scrupulous care and judgment which is essential in these cases. The point, as we understand it, of formal "limited" disclosure – that is, that disclosure should be limited to those facts which are directly material to the perceived risk and which the responsible authority believes to be specific and reliably sourced – is undermined if it is accompanied by the informal disclosure of other unspecific and prejudicial information or by glosses (e.g. that the information provided is "the tip of the iceberg") such as the officers are said to have given at the meeting on 13 December and in DS Robbins' conversation with B on 19 December: see paras. 14 and 15 above. Our concern would be reinforced if it is right, as the Claimant alleges (see n. 3 above), that part of allegation (i) has since been acknowledged by CAIC to be incorrect. It must be clearly understood that the Tribunal heard no evidence from the officers concerned and we have heard no submissions in defence of the course they adopted. We are accordingly in no position to make any finding that they acted improperly, and we recognise the delicacy of the task that they have to perform. But because of the grave risk of injustice in any case of this kind we have thought it right to express our concern.
    Supplementary Judgment

    Appeal No. UKEAT/0206/09/SM

    EMPLOYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

    At the Tribunal

    On 12 October 2009

    Supplementary judgment handed down 5 March 2010

    Before THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) MR C EDWARDS MR J MALLENDER

    A APPELLANT

    B RESPONDENT

    Transcript of Proceedings SUPPLEMENTARY JUDGMENT

    
     
    

    APPEARANCES

    For the Appellant	A (The Appellant in Person)
    For the Respondent	MR THOMAS LINDEN (One of Her Majesty's Counsel) Instructed by: Messrs Allen & Overy LLP Solicitors 1 Bishop's Square London E1 6AD

    
     
    

    SUMMARY

    PRACTICE AND PROCEDURE – Restricted reporting order and anonymisation

    Claimant dismissed as a result of police disclosure of unsubstantiated suspicions of paedophile activity - Employment Appeal Tribunal entitled to anonymise judgment and reasons in order to protect Claimant's art. 8 rights.

    
     
    

    THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

    INTRODUCTION

50. We handed down judgment in this case on 28^th January 2010. The names of the parties were anonymised, and particulars which would have facilitated the identification of the Claimant were confined to a closed section. However, as appears from paragraph 1 of the judgment, we were concerned about the basis of our jurisdiction to take that course, and we asked for further submissions in writing. Such submissions have been duly provided, and this supplementary judgment gives our reasons for deciding to maintain the anonymisation. The Claimant is unrepresented, and in his submissions he freely acknowledged that he was unable to offer much by way of assistance on the question which was troubling us. We are all the more grateful, therefore, to Mr Linden for his helpful submissions, which were essentially provided in order to assist the Tribunal since the question of anonymisation was of its nature of less significance to the Respondent.
51. The background to the question which we have to consider is to be found in our main judgment. In the barest outline, the Claimant was dismissed by the Respondent as a result of a formal disclosure from the Child Abuse Investigation Command of the Metropolitan Police ("CAIC") alleging that he had been involved in paedophile activity in Cambodia and was believed to represent a risk to children. The Claimant has been (in effect) acquitted by the Cambodian courts on the only occasion that any formal accusation has been made against him, and there is no reason to believe that he faces prosecution in this country. He has always denied the allegations and claims that they have been made against him maliciously. In the proceedings before the Tribunal the Respondent did not seek to establish that the allegations against the Claimant were true but only that it was reasonable for it to dismiss him on the basis of them.

THE PROBLEM

52. The Employment Tribunal made not only a restricted reporting order under rule 50 of the Employment Tribunal Rules of Procedure, which prohibits the identification of a party only during the currency of the proceedings, but also an order under rule 49, which provides as follows:

"Sexual Offences and the Register

In any proceedings appearing to involve allegations of the commission of a sexual offence the tribunal, the Employment Judge or the Secretary shall omit from the Register, or delete from the Register or any judgment, document or record of the proceedings, which is available to the public, any identifying matter which is likely to lead members of the public to identify any person affected by or making such an allegation."

Such orders are variously described. The Tribunal referred to its order as an "omission or deletion order", but in an authority to which we refer below Burton P used the phrase "register deletion order". At the risk of confusing the nomenclature further, we prefer the term "permanent anonymity order", which identifies the essential distinction between an order under rule 49 and one under rule 50. For practical purposes, the most obvious feature of a permanent anonymity order is that the judgment and written reasons as promulgated will contain nothing from which the public may readily establish the identity of the protected person.

53. Rule 49 is made under powers conferred by s. 11 (1) of the Employment Tribunals Act 1996, which provides (so far as material) as follows:

"Employment tribunal procedure regulations may include provision-

(a) for cases involving allegations of the commission of sexual offences, for securing that the registration or other making available of documents or decisions shall be so effected as to prevent the identification of any person affected by or making the allegation, and provision-

(b) for cases involving allegations of sexual misconduct, enabling an employment tribunal, on the application of any party to proceedings before it or of its own motion to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal."

By s-s. (6) "sexual offence" is defined by reference to various specified statutes applying to England and Wales and Scotland and must therefore be taken as referring only to conduct which would be an offence under English or Scottish law.

54. The Tribunal does not in the Reasons spell out why it believed that a permanent anonymity order should be made. Perhaps reasons were given on an earlier occasion, or perhaps it believed that the basis for the order was self-evident. In any event, the basis does indeed seem to us both obvious and correct. The proceedings plainly did "involve allegations of the commission of a sexual offence", since the CAIC disclosures included allegations that the Claimant had indecently assaulted a child and had frequented child brothels. (The only potential qualification which we should note is that, since the offences were alleged to have taken place in Cambodia, the conduct charged would only constitute a "sexual offence" within the meaning of s. 11 of the 1996 Act if it fell within the terms of s. 72 of the Sexual Offences Act 2003, which extends the jurisdiction of the English courts, exceptionally, to offences committed overseas. However, since that section applies to virtually all forms of sexual activity with children, s. 72 is very likely to have applied.) It is well established that a person "affected by" the making of an allegation of the commission of a sexual offence may include the alleged perpetrator.
55. One would naturally expect that this Tribunal enjoyed a similar power to that conferred on the Employment Tribunal by rule 49, and that it would, absent any special circumstances, employ it to make an equivalent order when dealing with an appeal against a decision in proceedings where such an order had been made below. At first sight, rule 23 (2) of the Employment Appeal Tribunal Rules 1993 satisfies that expectation. It reads:

"In any such proceedings where the appeal appears to involve allegations of the commission of a sexual offence, the Registrar shall omit from any register kept by the Appeal Tribunal, which is available to the public, or delete from any order, judgment or document which is available to the public, any identifying matter which is likely to lead members of the public to identify any person affected by or making such an allegation."

But the sting is in the opening words "any such proceedings". That refers back to paragraph (1), which reads:

"This rule applies to any proceedings to which section 31 of the 1996 Act applies."

S. 31 of the 1996 Act provides, so far as material:

"(1) Appeal Tribunal procedure rules may, as respects proceedings to which this section applies, include provision-

(a) for cases involving allegations of the commission of sexual offences, for securing that the registration or other making available of documents or divisions shall be so effected as to prevent the identification of any person affected by or making the allegation, and

(b) for cases involving allegations of sexual misconduct, enabling the Appeal Tribunal, on the application of any party to the proceedings before it, or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the Appeal Tribunal.

(2) This section applies to-

(a) proceedings on an appeal against a decision of an employment tribunal to make, or not to make, a restricted reporting order and

(b) proceedings on an appeal against any interlocutory decision of an employment tribunal in proceedings in which the employment tribunal has made a restricted reporting order which it has not revoked."

Thus the effect of s-s. (2) is, quite explicitly, that s. 31 only applies in the limited class of case there specified and does not apply in any case where this Tribunal is considering an appeal against the substantive order of an employment tribunal.

56. It seems to us extremely unlikely that s. 31 was meant to have so limited an effect, because it is hard to see the point of the power conferred by s-s. (1) (a) if the section only applies in the circumstances specified by s-s. (2); and the provisions of rule 23 (2) are likewise for all practical purposes redundant. But neither we nor Mr Linden could see any escape from the literal meaning of the sub-section; and, as will appear, at least two other divisions of this Tribunal have come to the same conclusion.
57. On the face of it, therefore, this Tribunal has no power to make a permanent anonymity order affecting its own record, even in circumstances where the employment tribunal has been required to do so. That produces a remarkable anomaly and a wholly unfair situation. A party who Parliament, and the Secretary of State in exercising his rule-making power, has believed should have the benefit of permanent anonymity (so far as the records of the employment tribunal go) loses that protection if either he or the other party brings an appeal against that decision. The unfairness is compounded by the fact that the party in question is most unlikely to be aware that the rules are different in this crucial respect and will initiate his proceedings in the belief that he is entitled to a protection which may prove wholly empty. This is a problem to which a solution must be found if it is at all possible.

THE SOLUTION

58. Similar, but not identical, problems have had to be faced by this Tribunal in a series of cases involving the protection of the identity of trans-sexual applicants bringing sex discrimination claims – A v B, ex p News Group Newspapers Limited [1998] ICR 55, Chief Constable of West Yorkshire Police v A [2001] ICR 128, and X v Commissioner of Metropolitan Police [2003] ICR 1031. In the first two of those cases the appeal was against a final order, and it was accepted by both Morison P and Lindsay P that rule 23 gave this Tribunal no power to make a restricted reporting order; but in the latter case Lindsay P was nevertheless prepared to make such an order. In the Metropolitan Police Commissioner case the problem was slightly different. The employment tribunal had refused to make a restricted reporting order because there was no allegation of sexual misconduct, and the relevant rule (which reflected the language of s. 11 (1) which we have set out above) did not apply. But Burton P was prepared nevertheless not only to hold that the tribunal was entitled to make a restricted reporting order but also to express the view that this Tribunal could do so, and – further – could make a permanent anonymity order. Both Lindsay P and Burton P felt able to make the orders that they did by relying on the provisions of the Equal Treatment Directive, which proscribed sex discrimination in employment. Art. 6 of the Directive required member states to give parties an effective remedy for breaches of the rights conferred by the Directive. However, Lindsay and Burton PP differed as to the means by which the requirements of art. 6 could be given effect to under the Rules. Lindsay P held that it directly conferred the necessary jurisdiction. Burton P preferred to proceed by reference to an expansive construction of the provisions by which each tribunal enjoys the right to regulate its own procedure. In the case of this Tribunal, that is s. 30 (3) of the 1996 Act, which reads:

"Subject to Appeal Tribunal procedure rules … the Appeal Tribunal has power to regulate its own procedure."

59. Neither version of that particular route is available in the present case. The Claimant's claim is not based on any right deriving from EU legislation and the "principle of effectiveness" is accordingly not in play. However, it is necessary to consider whether there may not be an analogous route by reference to the provisions of the Human Rights Act 1998. If the loss of the Claimant's anonymity would involve a breach of his Convention rights it would be the duty of this Tribunal, pursuant to s. 6 of the Act, to interpret its powers, so far as possible, so as to protect that anonymity. Burton P's reasoning in the Metropolitan Police Commissioner case shows that there is no difficulty in principle in construing s. 30 (3) of the 1996 Act so as to permit the making of a permanent anonymity order. It is true that on a traditional approach to statutory construction (such as was adopted by Morison P in A v B) the limited terms of s. 31 (2) would be taken as excluding the implication of any wider power; but it was confirmed in Ghaidan v Godin-Mendoza [2004] 2 AC 557 that it is legitimate to "read up" the terms of a domestic statute in order to achieve conformity with the requirements of the Convention even where the reading in question is contrary to the literal terms of the statute - provided only that it "goes with the grain" of the legislation and that no positive contrary intent on the part of Parliament can be shown. There could of course be no question of the latter here: on the contrary, as we have already observed, the limitation on the effect of s. 31 appearing from s-s (2) makes little sense.
60. The question therefore is whether the denial of anonymity to the Claimant would breach his Convention rights. We consider first the position under art. 8. It is now well-established that the "right to be protected in one's honour and reputation" falls within the scope of art. 8. It is self-evident that if it becomes public knowledge that CAIC believes that the Claimant is an active paedophile and a risk to children that would have a devastating effect on that right. (It is fair to note that the allegations against him have had some publicity in Cambodia and also that, partly as a result of the Claimant's own e-mail campaign, they are known to a number of official bodies here. But there is no evidence that they are known in the wider community so as to impact on the Claimant's reputation in this country.) It does not of course necessarily follow that any publication of CAIC's suspicions or the allegations on which they are based – whether by CAIC (or some similar authority) or by a newspaper – would be unlawful. That is not the question for us. Rather, we are concerned with the much more specific question of whether this Tribunal should itself publicly identify the Claimant so as to put the allegations against him into the public domain – which would effectively deprive him of such protection as he might otherwise have under art. 8.
61. The question of the use of anonymisation orders in order to protect the art. 8 rights of litigants was recently thoroughly reviewed by the Supreme Court in HM Treasury v Ahmed [2010] UKSC 1 ([2010] 2 WLR 325), to which Mr Linden helpfully referred us. It is clear that the common law position, under which a litigant in effect forfeited his privacy in all circumstances if he chose to bring proceedings (subject only to some limited statutory exceptions), requires modification in the light of the Convention. In a case where full publication of the proceedings before a court is liable to impact on the art. 8 rights of a party, that court will have to conduct a balancing exercise between that right and those protected by art. 10: see the judgment of Lord Rodger in Ahmed at para. 43.
62. In the present case the balance seems to us to come down clearly in favour of preserving the Claimant's anonymity. It is essential to appreciate that no party in the present case was seeking to establish that the Claimant was in fact a paedophile. The case proceeded on the basis that these were unsubstantiated allegations, some of which had, in effect, been dismissed by the Cambodian courts and in respect of which no proceedings were contemplated by the domestic authorities. The fact that they were made, though not their truth, was ventilated in the proceedings because, and only because, to do so was a necessary consequence of the Claimant seeking to vindicate his right to claim for unfair dismissal. That is not by itself a complete answer: in Ahmed too, in which the Supreme Court discharged the anonymity order, the claimants could have said that the allegations against them were only ventilated because it was necessary to refer to them in order to protect their rights. But this case has none of the particular features on which the Court relied in Ahmed as tipping the balance in favour of the publication of the identities of the appellants: see in particular paras. 67-71 of Lord Rodger's speech. Although no doubt the press has a lively interest in the subject of paedophilia, and can at least plausibly contend that that reflects the interest of many members of the public, the Claimant's own case raises no issues of public interest in the stricter sense. It is in itself no more than an individual employment claim. If the Claimant does indeed pose a risk to children, the disclosure machinery has already operated in his case and will no doubt do so again where appropriate. In circumstances where nothing has ever been proved against the Claimant we see no public interest that would outweigh the damage which it is reasonable to assume would ensue if the allegations against him were put into the public domain.
63. We accordingly believe that the effect of art. 8 is that this Tribunal should, in the exercise of its powers to regulate its procedure under s. 30 (3) of the 1996 Act, confirm the steps already taken to protect the Claimant's identity (so far as these proceedings are concerned) by anonymising the judgment and by deleting from the public record any matter which is likely to lead members of the public to identify the Claimant.
64. It may be that a similar result could have been achieved by reference to art. 6 of the Convention. It seems to us arguable that the risk of losing the benefit of anonymity which he has enjoyed at first instance may so inhibit a party's right of appeal that it constitutes a breach of his right of effective access to justice. But the argument is not straightforward, and in circumstances where we have had no detailed submissions we prefer to go no further than we need.
65. We reach our conclusion all the more readily because, as we have already observed, it seems to be only as a result of an accident of drafting that this Tribunal does not enjoy the same powers as the employment tribunal to make permanent anonymity orders in cases which involve allegations of the commission of a sexual offence. It is not in fact altogether clear why Parliament has thought it right to afford routine protection not only to the alleged victims of such an offence but to the alleged perpetrators or other persons "affected by" the allegation (cf. Tradition Securities and Futures SA v Times Newspapers Limited [2009] IRLR 354, at paragraph 5 (p. 356)); but the provisions of s. 11 (1) (a) of the 1996 Act must be taken as a recognition that justice requires anonymity in such cases, and it makes no sense that such anonymity should be available at first instance and not on appeal.
66. We should note by way of postscript that we are aware of at least two other cases in which anonymity orders have been made by this Tribunal in reliance on art. 8. In B & C v A (UKEAT/0503/08/DA) the circumstances were somewhat different, but the reasoning is broadly consistent with that adopted here. (There are however some minor differences in the analysis, and what we said about the powers of the employment tribunal overlooked rule 49.) In J v DLA Piper LLP, in which the substantive appeal was heard last month, Cox J made an anonymity order last year, although her judgment was ex tempore and did not address the issues in detail. We take the opportunity to repeat the observation made in B & C v A that in cases where tribunals decide to follow the course of anonymisation, it would be helpful if they rang the changes on the letters of the alphabet used: there is already a confusing profusion of reported cases called "A v B" or "X v Y".

Note 1   We were not told, and are not clear, what arrangements those are. The Multi Agency Public Protection Arrangements (“MAPPA”) introduced under ss. 67 and 68 of the 2000 Act do not appear to cover a case of this kind. It may in fact be that CAIC was acting under the general common law powers referred to by Dyson J in the LM case referred to by the Tribunal – see at p. 620. But for the purpose of the issues before us it not necessary to identify the precise powers being used.    [Back]

Note 2   We were told by the Claimant that he has in fact issued proceedings in the High Court against the Metropolitan Police; but we have no other details, save that they have “not proceeded very far”.     [Back]

Note 3   We were told by the Claimant that CAIC have now acknowledged that the statement, in element (i) of the disclosure given on 13 December, that he had a conviction for “falsely obtaining prescription drugs” was wrong. We did not see any documentary confirmation of this; but if it is true it would be a good illustration that errors occur. It would also be a matter of grave concern, since no information ought to be given by way of formal disclosure unless it has been most carefully checked and double-checked. But the point is not one of substantial significance on this appeal, since the allegation in question did not form part of the Respondent’s reason for dismissal.     [Back]

Note 4   Cf. Macfarlane v Relate Avon Ltd (UKEAT/0106/09), at para. 39. Even in the context where the language of “trust and confidence” is most well-established, i.e. constructive dismissal, the question is not simply whether the relationship of trust and confidence has been destroyed or seriously damaged but whether that breakdown is as a result of unjustifiable conduct on the part of the employer. In the present context the point is slightly different but it is, equally, necessary to go behind the simple question whether trust and confidence has broken down.     [Back]

Note 5   The Tribunal had rejected the Claimant’s case that the Respondent was concerned specifically about the careers of its senior executives; but damage to the reputation of the institution is a different matter.    [Back]

Note 6   Save, perhaps, that, as noted above, foreign travel might afford an opportunity for offending. But it is unrealistic to suppose that visiting, say, Paris or Amsterdam would give the Claimant some unique opportunity to offend: indeed DS Knight appears to have made this very point: see para. 14 above. The position is in any event certainly not analogous to that of a person whose actual work brings them into contact with children.     [Back]

Note 7   Although, as we observe below, there is no direct authority on facts such as those of the present case, we note that the ECHR in Pay v United Kingdom [2009] IRLR 139 recognised the legitimate interest of a public body in maintaining the confidence of the public: see at para. 47 (p. 144).    [Back]

Note 8   There was apparently a dispute before the Tribunal, centring on the evidence of a colleague of the Claimant, about whether he had sent some at least of the post-March e-mails from work. That dispute is not resolved in the Reasons; but it does not seem to us necessary to the Tribunal’s reasoning that it should have been.    [Back]