WorkLife

Our thoughts on the world of employment law - and beyond.

Employment law and child protection

Employment issues arising from possible sexual abuse cases, cause conflicts between the rights of employees not to be unfairly treated and the rights of children and young people to lead lives free from risk of sexual assault. Employees often have in civil employment terms to prove themselves innocent of such allegations which may be impossible in the available time, whereas employers only have to demonstrate good reason and fair process to justify a dismissal, which may be done comparatively quickly.

An early such case arose during the time of the former Inner London Education Authority (Gravett v ILEA EAT 536/85) where the ET criticised the investigations by the ILEA into the actions of a swimming instructor involving a 12 year old girl, prior to the dismissal yet upheld as fair, his dismissal for gross misconduct. The ET emphasised that investigations involving allegations of such child abuse, "should have been more comprehensive". The failure to investigate properly usually leads to an unfair dismissal ruling.

The normal rules for fair dismissals in such cases (BHS v Burchell) are that there should first be established by the employer; the fact of genuine belief that such misconduct had taken place and upon reasonable grounds so that by the time the employer had formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable. As a consequence of the ILEA's failure to conduct a full investigation, Mr Gravett's appeal to the EAT against the ET ruling that his dismissal was nonetheless fair, succeeded.

Employment law in this difficult area of child protection has developed substantially since the 1980s. Thus, in the Leach v OfCOM 2012 (ILRLR 839 CA) a senior member of staff was arrested in Cambodia for alleged child sex abuse. He was, however, believed to have been acquitted by the courts there and OfCOM accepted his innocence. OfCOM was later notified by the police in England that they had serious concerns about him so OfCOM then dismissed him. His claim for unfair dismissal failed because the employer's argument that there had been a breakdown in trust and confidence was accepted. The principal difference in the legal positions of the ILEA in the Gravett case and OfCOM in the Leach case, was that the ILEA were held not to have investigated the allegation sufficiently under BHS v Burchell whereas OfCOM was held entitled to treat the information received from the police as sufficient so did not need to investigate further.

Despite this area of employment law developing between 1980 and 2012, to give better protection to children in schools and elsewhere, a more recent case (Z v A EAT/0380/13 9 December 2013) makes plain the need for employers to ensure that they have as much evidence as possible before dismissing in such cases. In Z v A, there were allegations of child abuse against an employee who was therefore dismissed. Police investigations were only later completed, which resulted in charges against the former employee being withdrawn. It was held that the employer's breakdown of trust and confidence basis for the dismissal, was insufficiently substantial at the time, to justify the action taken so an unfair dismissal ruling resulted. Suspension from duty pending clarification of the position and subject to the advice from the statutory agencies is usually the first step to be taken by an employer in the very difficult area of alleged child abuse by a teacher or other member of staff and cases involving employees accused of abuse of children need to be handled extremely carefully having regard to what the statutory agencies advise on employer's conducting their own investigation.

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