Over the last few months our TV screens and newspapers have been full of detailed accounts of the trials of various celebrities accused of historical sexual abuse.
Max Clifford has just been jailed for eight years. Coronation Street star Bill Roache was acquitted of all charges against him. Dave Lee Travis was acquitted of 12 of 14 charges and the jury were unable to agree a verdict on the other two. The latter two men described the long police investigations, trials and media attention as “hell”.
Allegations have also resurfaced that director and actor Woody Allen sexually abused his adopted daughter when she was a young child. He completely refutes her account of events and denies any improper conduct. He has also denounced his accuser in the New York Times. Such allegations are extremely emotive and courts are often left in the unenviable position of having to balance the interests of the Complainant reporting the incident that may have happened many years ago with those of the Accused who may deny any such behaviour and is of course innocent until proven guilty.
Such a problem was faced earlier this year by the Employment Appeal Tribunal in London. In the case of A v Z (names were anonymised for obvious reasons) the Court had to consider the dismissal of a school caretaker “A”. In this case the Police reported to a school that an allegation had been made of historical sex abuse against the employee which occurred outside and before his employment. The headmistress was suspicious but suspended the Claimant while an investigation was carried out. After a year she decided to recommend dismissal to the Governors albeit that nothing further had happened to support the allegation made against the caretaker.
The caretaker was duly dismissed and an appeal against dismissal was unsuccessful. The school were concerned about the risk to children and its reputation.
The dismissal was held by an Employment Tribunal to be unfair and a finding of unfair dismissal was upheld by the Employment Appeal Tribunal. The case raises some very important issues for all those who deal with children and vulnerable adults. Whereas every case is of course dependent on its own facts it is possible to glean some clear reasoning from the Employment Appeal Tribunal. In this case an allegation was made against A who was also a site manager of a primary school which had over 200 pupils. The Accuser made the allegation after hearing that A was now working with children. The Police reported the allegation to the school but it would appear that the Accuser did not wish initially to raise any criminal prosecution. However the Accuser eventually made a formal statement confirming the allegations which prompted a full police investigation.
The headmistress spoke to the Police who confirmed that in fact they had interviewed a number of people who the Accuser had said would support his accusation but none of them actually did. The headmistress had regards to the views of a social worker who said that malicious allegations are rare and the details of the complaint in this instance were "very believable". The Police however said they were taking no view about the credibility of the Accuser and they were making no judgements.
The Employment Appeal Tribunal recognised that where an allegation of child abuse is made, albeit historic, the school could not reasonably ignore it but it was not in a position to assess the allegations for itself. On the other hand an employee is at risk of serious injustice if he were to lose his job on the basis of an allegation which has not been proven before any Tribunal and has not been tested by the Accused.
The employer in this instance got it wrong inter alia because they did not follow a proper procedure and give A the opportunity to test the allegations made against him. It cannot be right as a matter of law that the mere fact of an allegation of sexual abuse will automatically make a dismissal because of it fair. Neither can it be right that an employee might not only lose his job but perhaps lose any chance of obtaining future employment, on the basis of allegations which he had no opportunity to challenge in any court of law. It is also of importance in this particular case that the Police expressed no view as to the veracity of the allegations. In all the circumstances the Court held that no reasonable employer would have dismissed in this situation.
Dealing with vulnerable adults and children can be fraught with difficulty and whereas each case is obviously reliant on its own facts a mere allegation of historical abuse will normally be insufficient to justify dismissal unless the accused is given a chance to test the allegation in a court of law or other tribunal or after a proper and rigorous disciplinary process. Failure to do so could result in a finding of unfair dismissal with all the attendant costs, stress and unwelcome publicity.
For further information in relation to this article, or for any other employment law query, please contact Angela Gorton.
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