Leach v The Office of Communications (OFCOM)

A dismissal for some other substantial reason may rest on a breakdown of trust and confidence caused by an official disclosure of unproven allegations. The label does not itself justify dismissal. The tribunal must assess all relevant circumstances, including the employer’s role, the employee’s position, the source and reliability of the information, the employer’s inquiries, the employee’s response and reasonable alternatives.

An employer receiving information under an official disclosure regime may in principle treat it as reliable. It must nevertheless take a sufficiently critical approach and seek clarification and reassurance where reasonably required. Fairness under Employment Rights Act 1996 depends on the particular facts and is ordinarily an assessment for the employment tribunal.

The claimant, an International Policy Adviser employed by OFCOM, was summarily dismissed after the Metropolitan Police Child Abuse Investigation Command made a limited disclosure that it considered him a continuing risk to children. OFCOM did not allege that the claimant had committed the disclosed conduct. It relied on the resulting breakdown of trust and confidence, the claimant’s lack of candour, and the reputational risk to a public regulator.

The Employment Tribunal rejected claims for unfair and wrongful dismissal. The Employment Appeal Tribunal, in UKEAT/0206/09/SM, dismissed the claimant’s appeal. The claimant appealed to the Court of Appeal, contending that the disclosure and reputational risk could not justify dismissal where his role did not involve children and the allegations had not been proved.

Appeal dismissed. Lord Justice Mummery, with whom Hooper and Pitchford LJJ agreed, held that the Employment Tribunal had made no error of law.

1. The statutory issue was whether OFCOM’s reason was a substantial reason capable of justifying dismissal under section 98 of the Employment Rights Act 1996, and whether dismissal was reasonable. That was principally a factual assessment for the Employment Tribunal. An appellate court could intervene only on a question of law.

2. The Employment Tribunal was entitled to find a substantial reason. A breakdown of trust and confidence is central to employment, but it is not a label that an employer may invoke whenever a conduct reason is unavailable. The tribunal had properly considered OFCOM’s functions, the claimant’s overseas role, the nature and source of the allegations, OFCOM’s attempts to obtain clarification and confirmation, the claimant’s responses, and possible alternatives.

3. The court agreed with the Employment Appeal Tribunal’s analysis of official risk disclosures. OFCOM could not simply ignore the police assessment, yet it had to assess its reliability as far as reasonably practicable. It had made appropriate inquiries, sought further information, tested the formality and integrity of the disclosure process, and heard the claimant’s explanation. The resulting reputational risk to a public regulator was capable, on these facts, of providing a fair basis for dismissal despite the absence of proved misconduct.

4. The cited unfair-dismissal authorities were distinguishable because they concerned inadequate investigation or a failure to consider alternatives. The Tribunal was also entitled to find that the claimant’s repeated lack of candour and concealment of relevant matters were serious repudiatory breaches justifying summary dismissal.

5. Article 6 of the European Convention did not apply to OFCOM’s dismissal decision, which did not determine civil rights; the relevant determination was by the Employment Tribunal. Any assumed interference with Article 8 rights was justified, lawful and proportionate in light of the perceived risk and OFCOM’s legitimate interest in public confidence and reputation.

• Court of Appeal (Civil Division): Dismissed the claimant’s appeal and upheld the Employment Appeal Tribunal’s conclusion that no question of law arose.
• Employment Appeal Tribunal: In UKEAT/0206/09/SM, dismissed the claimant’s appeal on 28 January 2010.
• Employment Tribunal: By a reserved judgment notified on 18 December 2008, dismissed the claims for unfair dismissal and wrongful dismissal.