Dismissal Based on Police Warning was Fair

In A v B [EAT/0206/09], an employee was dismissed on the basis of a police warning that they posed a risk to children even though they had been acquitted of sexually abusing children in Cambodia and did not work with children. The EAT held that the employee was fairly dismissed to avoid the risk of serious damage to the employer’s reputation.

The EAT said that where an employer has received a warning about an employee from the police (or a similar body), it must:

1. Adopt a critical approach towards the warning to determine whether it is reliable.
2. Consider whether the warning is a sufficient reason to dismiss the employee.

Can the Employer Rely on the Warning?

The employer must adopt a critical approach towards the police warning to determine whether it is reliable. The employer may be in a position - either from its own knowledge or from information obtained from the employee - to question the police about the reliability of its warning. The employer should also seek a credible reassurance from the police that its warning has taken all of the relevant factors into account.

However, an employer could not be expected to carry out its own investigation in order to test the reliability of the police warning. It was unlikely that the employer would have the resources or expertise to do so.

The tribunal was entitled to find that the employer had adopted a critical approach towards the police warning. Therefore, the employer could treat the warning as being reliable.

Is the Warning a Sufficient Reason to Dismiss the Employee?

The police warning must provide the employer with a sufficient reason to dismiss the employee.

In this case, the employer was a public body with child-protection responsibilities. The employee’s job involved travelling to other countries. The police was concerned that the employee would sexually abuse children while he was working abroad.

The employer had been officially warned by the police that the employee posed a risk to children – if he was subsequently found to be such a risk – it would seriously damage the employer’s reputation. The damage would be more serious if it was revealed that the employer had been warned about the employee but the employer did nothing about it.

Therefore, the employer had a sufficient reason to dismiss the employee to avoid the risk of serious damage to its reputation.

The EAT expressed its concern that an employee who was dismissed on the basis of a police warning may suffer an injustice [see paras. 48 and 49].