No Charge, no Disclosure?

Last year I uploaded a post on the employment law implications of Cliff Richard’s breach of privacy case against the BBC and South Yorkshire Police, those curious can remind yourself of the details here. The case centred on whether a person who is suspected of being culpable, and may even have been arrested, of a criminal offence has a legitimate right to privacy in that that information cannot be published (more specifically, the identity of the person suspected). It will be recalled that in Cliff Richard’s case, where the suspicions of criminality came to nought, there was rolling news coverage of the fact that there was a search of his property being undertaken on suspicion of historic sex crimes. The High Court’s decision was that reporting the fact of a criminal investigation in circumstances where a charging decision had not been made and applied will normally be a a breach of privacy and be unlawful.

Many journalists were critical as it was, they said, an infringement of the free press. For my part the decision was welcome. Clearly the extent to which this could apply is wide but speaking in an employment context there is an unfortunate tendency that whenever the fact of the employee being subject to criminal investigation – and this will often be press reports or police disclosure – the odds of the employee remaining in employment, whether or not the criminal case goes anywhere or even whether the allegation is categorically disproven, is close to remote. The employer will not wait to see the outcome of the case but will frequently dismiss the employee, not on the basis of the suspected criminality but on trust and confidence grounds. From a PR point of view, especially if the allegation is a serious one, that is perhaps an understandable response.

Part of the reason I am not a fan of the approach is that lives are ruined by false allegations, so in one case (and I am being intentionally vague in the description) I assisted an employee charged with a serious non-violent) crime. This was reported in the press and I told her she would very likely be dismissed (as she was). In the fulness of time that person was convicted of the crime but, unusually, given an absolute discharge on sentencing (the only punishment was the finding of guilt) – this being a case that would often result in a custodial sentence. The reason for this discharge was the quite exceptional mitigating factors surrounding the commission of the offence.

Had there been no press interest and the employer waited for the outcome of the criminal proceedings then I really do think there would have been a reasonable case that dismissal may have been avoided and an employee who was very good at her job (which was undisputed) would not have been thrown to the dogs.

The decision in Cliff Richard’s case was a decision of the High Court. A more recent decision of the Supreme Court has cast further light on this issue. In February the Court of Appeal delivered its judgment in Bloomerg v ZXC [2022] UKSC 5.

The claimant (ZXC) was a senior employee of a financial company and Bloomberg, a company pursuing financial journalism, published a information that revealed that ZXC was subject to ongoing criminal investigation – the claimant alleged that that disclosure was unlawful (specifically misuse of private information) and that, as a matter of law, the claimant had a reasonable expectation that the fact of an ongoing criminal enquiry should be a private matter. Naturally, Bloomberg argued placed a lot of emphasis on the the need for a judgment to be aligned to Article 10 ECHR (freedom of press).

Following the citation of relevant cases the judgment (119) concludes “it is possible now to say that, in general, a person does have a reasonable expectation of privacy in a police investigation up to the point of charge.” The case essentially acknowledged that information pertaining to the existence of a criminal investigation will engage a persons right to private life (ECHR article 8). That fact alone does not mean that any publication is prohibited because there is a (stage 2) balancing act but in this case (and in most cases) article 10 will did not take precedence over this right where there has been no charging decision.

This decision has not been referenced much in the employment law world but I do think it is a useful one for union representatives to be aware of. The decision is focussed on issues the tension between freedom of the press and an person’s private life but it is clear that could develop into other areas (for example, disclosure of investigation information to employers by investigatory units). If nothing else, I hope this decision will cause more employees to be able to have a fair disciplinary hearing before an employer dismisses an employee on trust and confidence grounds because of damage to its reputation.