Dealing with Historic Allegations

The Problem

It is not uncommon for employers to come across allegations about one of its employees which perhaps don’t sit comfortably with them. The question which follows is whether it is fair to take action on the basis of such allegations.

The Principle

These are the issues which had to be considered by the employment appeal tribunal (EAT) in  Z v A. The  EAT had to consider whether it was appropriate for a school to dismiss its caretaker for “some other substantial reason” (SOSR) based on police information that an allegation had been made against him of historical sex abuse, outside his employment. The EAT agreed with the tribunal’s decision; a bare accusation, even of something serious, could not by itself amount to some other substantial reason. The fact an allegation had been made should not allow an employer to proceed straight to dismissal. The employer must, in this case, strike a balance between the welfare of the children at the school and the interests of the employee. In this case, the school was judged to have got it wrong.

The Practice

So how should you deal with allegations which are alarming? The EAT has noted the following principles:

• in order to be reasonable, an employer must take a critical view of the information disclosed. The employer should carry out its own enquiries to test the disclosed information and follow a reasonable procedure in the circumstances;
• even if an employer is entitled to treat the disclosed information as reliable (and therefore, in this case, to treat the employee as posing a risk to children) the tribunal must go on to consider whether that was a sufficient reason for dismissal; and
• the question whether a particular reason for dismissal amounts to SOSR is one of fact for the tribunal. This decision cannot be appealed unless it involves a point of law.

For further help or advice please contact Tim Davies on 0191 211 7927.