Leach v Office of Communications

This appeal concerned whether the Employment Tribunal erred in law in finding that the respondent's summary dismissal of the claimant was for "some other substantial reason" within s.98(1)(b) of the Employment Rights Act 1996 and therefore fair under s.98(4). The employer relied on a limited disclosure from the Metropolitan Police Child Abuse Investigation Command (CAIC) that the claimant was a continuing risk to children and concluded there had been a breakdown of mutual trust and confidence. The tribunals below found that the employer had made reasonable enquiries, treated the CAIC disclosure with appropriate critical scrutiny and that dismissal fell within the range of reasonable responses given the regulator's functions and reputational risk.

The Court of Appeal upheld those conclusions. It confirmed that an employer may, subject to safeguards, treat an official limited disclosure as reliable; that the employer must however adopt a sufficiently critical approach and seek clarification and formality where appropriate; and that whether a breakdown of trust and confidence is a "substantial reason" is a fact-sensitive question for the tribunal. The court dismissed the claimant's wrongful dismissal and Human Rights arguments (Article 6 and Article 8), finding no breach of those rights on the facts.

Background and parties:

• The respondent, OFCOM, employed the claimant as an International Policy Adviser from May 2005 until summary dismissal on 3 January 2008.
• In late 2007 the Metropolitan Police Child Abuse Investigation Command (CAIC) made a "limited disclosure" to OFCOM that the claimant was considered to pose a continuing risk to children arising from alleged activities in Cambodia. The CAIC was not conducting an investigation against OFCOM's instruction and did not supply full corroborative material.

Procedural posture:

• The Employment Tribunal (ET) heard the claimant's unfair dismissal and wrongful dismissal claims and, after a four day hearing, found for the respondent (reserved judgment 18 December 2008).
• The Employment Appeal Tribunal (EAT) dismissed the claimant's appeal (28 January 2010), concluding no question of law arose from the ET's decision but endorsing principles on employers' reliance on official disclosures.
• The claimant appealed to the Court of Appeal; permission to appeal was granted on 1 July 2010. The claimant did not attend the appeal hearing; the Court of Appeal handed down judgment on 13 July 2012, dismissing the appeal.

Nature of the claim and relief sought: The claimant challenged summary dismissal for unfair dismissal and wrongful dismissal. Specific remedies sought are not stated in the judgment.

Issues framed by the court:

1. Whether the ET erred in law in finding the reason for dismissal was "some other substantial reason" (s.98(1)(b) Employment Rights Act 1996) and, on the facts, whether dismissal was within the range of reasonable responses (s.98(4)).
2. Whether the respondent acted unreasonably by relying on an untested limited police disclosure without adequate investigation.
3. Whether summary dismissal amounted to breach of contract (wrongful dismissal).
4. Whether Articles 6 and 8 of the European Convention on Human Rights (as engaged by the Human Rights Act 1998) were infringed by the dismissal.

Court's reasoning and conclusions:

• The Court of Appeal agreed with the EAT that an employer receiving an official disclosure that an employee poses a risk to children may, in principle and subject to safeguards, treat that information as reliable. The employer is not normally expected to carry out its own full independent criminal-style investigation but must adopt an appropriately critical approach, seek formality and specificity, and probe the reliability of what is disclosed.
• The ET had made specific factual findings that OFCOM had sought clarification from CAIC, had investigated what it could, had allowed the claimant to put his case at disciplinary and appeal stages, and had concluded dismissal was within the range of reasonable responses given OFCOM's regulatory role and reputational exposure. Those factual assessments were not vulnerable on a point of law or plain perversity.
• The ET's finding that the claimant's lack of candour and the CAIC disclosure together justified summary dismissal was a proper factual conclusion; the dismissal was not wrongful. Article 6 did not apply to the dismissal decision and Article 8 was not breached because any interference was lawful, pursued legitimate aims and proportionate.

Appeal dismissed. The Court of Appeal agreed with the EAT and ET that the respondent had, on the facts found, a substantial reason under s.98(1)(b) Employment Rights Act 1996 to dismiss, had acted reasonably in treating the CAIC limited disclosure as reliable subject to safeguards, and that summary dismissal for lack of candour and reputational risk was within the range of reasonable responses. Human rights arguments failed.

Employment Tribunal judgment (reserved) 18 December 2008; Employment Appeal Tribunal dismissed appeal (Underhill J) 28 January 2010 (UKEAT/0206/09/SM); permission to appeal to the Court of Appeal granted 1 July 2010; Court of Appeal dismissed the appeal [2012] EWCA Civ 959 (13 July 2012).