Will safeguarding responsibilities trump an agreed reference?

Yes – says the High Court in the case of Camurat v Thurrock Borough Council (July 2014)

Comment

This case assists schools who have agreed a reference with an ex-employee, but are then called to exercise their statutory duty to provide information for safeguarding purposes to the police and other bodies.

Some practical advice to employers, in particular schools, academies and colleges, is set out below.

Facts summary

During Mr Camurat's employment by the Council at the school there had been a number of allegations relating to the inappropriate use of force by him during his dealings with pupils. The Judge stressed that there were no suggestions of sexual connotations or impropriety on Mr Camurat's part.

Following a final written warning in 2008, Mr Camurat agreed to leave the school under a compromise agreement (or settlement agreement as they are now known), which included an agreed reference.

After Mr Camurat had left, the Council referred him to the Independent Safeguarding Authority (the ISA eventually decided he should not be barred from working with children) and provided information to the police confirming the misconduct allegations that had been made during his employment. The police reproduced this information in an Enhanced Criminal Record Check (ECRC) for Mr Camurat.  Mr Camurat claimed that the ECRC caused him to lose a new teaching job and continuing losses.

Mr Camurat brought various claims against the Council, including for breach of contract (in relation to a breach of the compromise agreement), negligence, misrepresentation and malicious falsehood.

Decision

The High Court held that the compromise agreement could not require the Council to 'decline a request by the police or anybody interested in safeguarding issues or to limit itself to a mere repetition of what is in [the compromise agreement]'.  The Council as employer was under a statutory duty to provide disclosure for safeguarding purposes and it would be neglecting its duty if it restricted itself to the reference in the compromise agreement.  Any such restriction would, therefore, be void.

The case may not end here as Mr Camurat has been given permission to appeal to the Court of Appeal.

Practical  Advice

We advise employers to consider these drafting points:

• reserve a right in any settlement agreement that allows the employer to disclose information that they may be obligated to disclose under any statutory duty. As well as safeguarding information, this may also include information legitimately requested by HMRC.
• an obligation of confidentiality (whether as part of a settlement agreement or otherwise) should not be drafted in a way which may limit the employer's ability to defend itself against any claim which may be brought by or involve an ex-employee.
• a confidentiality agreement will not restrict an employee (including a former employee) from whistleblowing, or limit the protection given to such employees by whistleblowing legislation against any detriment.

 September 2014