The High Court recently considered the case of John Yapp v Foreign and Commonwealth Office  EWHA 1098.
Mr Yapp had been appointed to the position of HM High Commissioner to Belize in 2007. A management review a year later noted that there were some criticisms of his management style which might be perceived as bullying, but he was not given any examples of these or asked to explain them. Shortly thereafter, a former member of the Belize Government, Mr Courtenay, made a number of allegations against Mr Yapp including one of inappropriate behaviour towards his wife. He suggested that Mr Yapp’s presence was hindering UK-Belize relations. An immediate decision was therefore taken to withdraw Mr Yapp from his position. Prior to this decision being made he was not told of the allegations, or given any opportunity to defend himself. When he was made aware of the decision, he was not given any details of the allegations, including their source, as he was told that these were confidential.
An investigation was subsequently carried out, which found that the allegations of inappropriate behaviour were unreliable. Mr Courtenay in fact sought to distance himself from that allegation when he was subsequently interviewed on Belizean TV. However, it was found that there was a case to answer in respect of the allegations of bullying by Mr Yapp towards some of his staff. A disciplinary process was therefore instigated, which was conducted by the same manager who had undertaken the fact-finding investigation. That led to Mr Yapp being issued with a final written warning, which was upheld on appeal.
Throughout this Mr Yapp suffered from depression arising out of the allegations and the withdrawal of his post and he did not work again prior to his retirement in 2011.
Mr Yapp brought a claim against the FCO for breach of contract. He argued that the decision to withdraw him from his post was made unfairly. The Judge agreed. He decided that “Fair treatment in this case obliged the FCO to conduct some preliminary investigation of the allegations which Mr Courtenay had levelled against [Mr Yapp] before taking the decision to withdraw. In addition, fair treatment obliged the FCO to inform [Mr Yapp] of the allegations and to take into account his critique of them.”
The Judge went on to find that the justification of confidentiality was insufficient in this case as Mr Yapp’s right to know the allegations against him such that he could properly defend himself trumped the complainant’s right to confidentiality. The Judge considered that if Mr Yapp had been told of the allegations against him he could have made reference to a number of issues which would have demonstrated the inherent weaknesses of the allegations and – in his view – if that information had been properly evaluated, there would have been no basis for the decision to withdraw.
The Judge also upheld Mr Yapp’s claim that the disciplinary process was unfair in that the fact finding investigation and the disciplinary process had been carried out by the same person. Whilst this was not precluded under the FCO procedures, the Judge took the view that in this case it fell outside the bounds of natural justice as the manager concerned had strayed outside the terms of reference of his investigation by making conclusions about Mr Yapp’s behaviour and the validity of the decision to withdraw him from his post, which precluded him from looking at the disciplinary process in an impartial light. Mr Yapp was therefore successful in obtaining damages from the FCO.
This case highlights the need for allegations against an employee to be properly scrutinised before they form the basis of any sanction. It is often the case that employers are concerned about the confidentiality of the source of such allegations, but as can be seen here, it is very difficult for someone to defend themselves if they do not know the detail of the issues raised.
As this case highlights, not all allegations made, whether by other employees or third parties, stand up to further scrutiny and a failure to properly test them before making them the basis of any decision leaves an employer vulnerable to a claim that they have acted unfairly towards their employee.
Safia Tharoo, Barrister, 42 Bedford Row, London