Unfounded allegations

After an allegation has been made against a member of staff and it has been decided that the evidence neither justifies police action nor disciplinary action, the question arises whether this should be mentioned in future references. A recent case has given some hints as to how this should be dealt with.

The case involved a challenge to the decision of a chief constable to mention three allegations made by autistic students against a member of staff on a CRB reference. The case involved the use of 'facilitated communication' to clarify the allegations and in the event the police did not pursue any of the allegations.

The claim was that the police therefore should not have mentioned them or, if they had, should have put in enough detail to warn a prospective employer that the allegations had been obtained in a way that was dubious.

The judgement re-stated the basis for disclosure by chief constables. A decision that an allegation 'might be true' may lawfully be disclosed. The decision as to whether to disclose it is the chief constable's. The decision as to what use to make of it is the prospective employer's.

The chief constable may reveal material if he reasonably believes that it might be true. Only if the evidence is "seriously weak, unreliable or trifl ing" would a court be justified in finding that the decision to reveal it was unreasonable.

This is a low threshold. If transferred to schools it means that if a head reasonably believes that an allegation 'might be true' s/he is potentially justified in mentioning it. If s/he does not, or has no grounds for, believing it might be true, then s/he is not justified in mentioning it. However, the choice is the head's (or if the head is not writing the reference, the employer). There is a choice to be made and there should be evidence that a choice has been made.

Similarly, a prospective employer has to make a conscious choice in what use is made of the information revealed. The court made some remarks about the unreasonableness of an employer having a policy of 'no employment without a clean certificate' and expressed considerable scepticism at the suggestion that the claimant in the case would have no prospect of success in an unfair dismissal claim.