A recent High Court case has recognised the heightened ethical and public law duty on Chief Officers when a Force provides references to outside bodies regarding officers who are leaving the police. The duty is particularly pertinent to situations where officers leave under the cloud of potential or pending disciplinary proceedings.
Following the death of Ian Tomlinson, the spotlight has been on internal police vetting procedures and how to ensure that information about an officer’s misconduct history is shared at the relevant points, such as when an officer seeks to transfer or re-join a force. The decision in AB v A Chief Constable  EWHC 1965 (QB) recognises a need to be just as alert, and where necessary to share information about, officers who are leaving the police force altogether.
The facts in AB
The claimant was a former Chief Superintendent, who was due to face a gross misconduct hearing. He resigned before the hearing, after obtaining a position with a national regulatory body. He had secured that position with the assistance of a reference which contained minimal information only. He subsequently secured an emergency injunction against his Force, preventing them sending a revised reference to his new employer. The revised reference would have informed them of his disciplinary record and the gross misconduct hearing.
The case to answer within the gross misconduct proceedings was that he had approached various more junior members and employees of the Force, in order to influence the recruitment process in favour of a close friend. His conduct was alleged to be in breach of the Standards of Professional Behaviour, in that it (i) lacked honesty and integrity (ii) was an abuse of his authority and (iii) was discreditable.
“The evidence presented strong grounds to question whether the claimant should hold the office of constable”
The claimant also had a prior disciplinary record, again in relation to matters while serving as a Chief Superintendent. Following a misconduct meeting for an unrelated matter, he had received a final written warning. He had appealed, and the acting Chief Constable who determined his appeal had expressed concern that the panel’s powers had been limited to those associated with misconduct rather than gross misconduct.
As noted by Mr Justice Cranston, “In his view the claimant’s explanations in response to the allegations raised further concern about his honesty and integrity and the evidence presented strong grounds to question whether the claimant should hold the office of constable and the rank of Chief Superintendent”.
Thus even before the events which led to the charge of gross misconduct there had been serious question marks over the claimant’s integrity. This only made more significant any potential duty of disclosure to future employers.
After learning of the new investigation against him, the claimant sought alternative employment, outside the police. He made various applications and attended interviews while on sick leave from the force for “psychological difficulties”.
After obtaining the provisional job offer with the regulatory body, the claimant orchestrated matters so as to obtain an anodyne reference from a senior member of police staff with whom he was in close contact. The staff member provided the reference with the assistance of a more junior member of the HR department. On the basis of this reference, which revealed little more than the claimant’s start and finish dates with the Force, the regulatory body confirmed the job offer, and the claimant then resigned. As Mr Justice Cranston observed in his judgment,
“I have no doubt that the claimant orchestrated matters over a period and employed his interpersonal skills to ensure that he obtained a reference which did not contain damaging information. He well knew that if the Chief Constable or ACPO officers were asked they would not have given a reference or if they did it would contain more information than in the template…”
Matters later came to the attention of the Chief Constable and his Deputy. Ultimately, the Chief Constable took the decision that it was not appropriate to allow the matter to slip by unobserved. The Force therefore notified the claimant of the intention to send a further reference to the regulatory body making mention of the past disciplinary record and the forthcoming gross misconduct hearing, while also recording the fact that the allegations were strenuously denied by the claimant. This was a highly ethical decision on the part of the Chief Constable. It led directly to this litigation.
“The claimant’s behaviour … did not exhibit the honesty and integrity demanded by the Police (Conduct) Regulations, nor did it meet with the standards set out in Home Office guidance and the Police College ethical code”
Mr Justice Cranston was unimpressed with the claimant’s excuses for why he had not been frank with the regulatory body about his circumstances, describing his evidence to the court as “palpable nonsense”, “at times evasive” and “not a true explanation for his behaviour”.
Mr Justice Cranston agreed with the Chief Constable that he was subject to a public law duty of honesty and integrity, arising from the Police (Conduct) Regulations 2008 and 2012, and which could be informed by the draft policing code of ethics, which came into effect shortly after the decision. This duty was informed by the common law standard, which requires references to be full and frank and not give a misleading or unfair impression. However, the duty on the Chief Constable was more onerous than the private law duty on an ordinary employer.
Mr Justice Cranston held that the first reference, in a template format and providing scarce information, was misleading. Because of the duty of honesty and integrity the Chief Constable was prima facie under a duty to do what he wished to do: to tell the regulatory body more about the claimant.
Data protection principles were also considered. The court accepted the Chief Constable’s case that fairness to the regulatory body was relevant, not just fairness to the claimant.
Despite all these findings, the Court decided that on the facts of this particular case the balance of fairness was tipped in favour of continuing the injunction against the Chief Constable to prevent him from sending the second reference. This was because the Force had not informed the claimant of the intention to send the second reference before he resigned and asked it to discontinue the gross misconduct proceedings. The claimant had resigned in reliance on what the Force had done, giving rise to a legitimate expectation that only a standard reference would be applied.
The Court decided that, in the “special circumstances” of the case, the proportionate decision was to protect this legitimate expectation. This was despite the court’s findings that the claimant’s job application to the regulatory body did not exhibit the honesty and integrity demanded of him, and that there was a public interest that ran counter to his legitimate expectation.
In this case, it was the assurance of the senior member of police staff that he would provide only a “standard” template reference (inappropriate in this case, as the judgment subsequently demonstrates) that gave rise to the claimant’s legitimate expectation that the Force would not seek to tell the regulatory body anything more. This undertaking, given inappropriately by a senior member of police staff, yet binding on the Force, gave the claimant the confidence to resign. It influenced the court’s ultimate findings on the balance of fairness in this case, in the context of both the requirement to act “fairly” under the Data Protection Act 1998, and whether the claimant’s legitimate expectation should be overridden in the public interest.
The judgment contains important lessons for all forces, senior officers and staff in human resources. In particular:
1. It is vital to ensure both officers and employees are clear about who can and cannot give or approve references.
2. It is highly recommend that all references are centrally handled, and that those handling them have access to all disciplinary information.
Were it not for the undertaking given in this case to the claimant, the Chief Constable would have been required – by a public law duty – to inform the regulatory body of the pertinent disciplinary matters. This duty arises from the Standards of Professional Behaviour, and now also the Code of Ethics.
This article was first published in Police Professional.