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Northern Ireland
Leach v The Office of Communications [2012] EWCA Civ 959
Decision Number: Legal Body: ewca
Published on: 17/08/2012
Issues Covered:
Dismissal
Article Authors The main content of this article was provided by the following authors.
Background This case involved an appeal by a former employee against the dismissal of his claim for Unfair Dismissal and wrongful dismissal against the respondent OFCOM. The appellant had been employed as an international policy adviser. Prior to beginning his employment he was arrested in Cambodia in relation to child sex offences, of which he was later acquitted. The appellant did not inform the respondent of these events.The appellant later sent emails to a wide selection of bodies about his circumstances in Cambodia and about the lack of support from the UK authorities. The Serious Organised Crime Authority drew the respondent's attention to the emails. In the course of disciplinary proceedings then taken against the appellant, the respondent investigated the emails and the Cambodian issues. The investigation appeared to corroborate the explanations given by the appellant. The appellant was issued with a first written warning about the emails. The Metropolitan Police Child Abuse Investigation Command then contacted OFCOM and informed it that the appellant posed a continuing potential threat or risk to children and that there was a risk of media exposure. The police then made a formal "limited disclosure" about the appellant.OFCOM investigated the information disclosed and held a disciplinary meeting with the appellant. OFCOM decided that it could not discount the assessment disclosed to it and that he had not been open and frank and had breached the trust and confidence on which the employment contract was based and summarily dismissed the appellant. An employment tribunal rejected the appellant's claim for unfair and wrongful dismissal, holding that OFCOM was entitled to treat the disclosed information as justifying dismissal -the dismissal fell within the range of reasonable responses. The Employment Appeals Tribunal upheld the decision, stating that no question of law arose from the decision and the appellant appealed to the Court of Appeal.The Court of Appeal recognised that although the case raised concerns about a dismissal based on limited information about an offence for which an employee had been convicted, the respondent had acted reasonably in the circumstances.The respondent was entitled to treat that information received from the police as reliable. An employer could not be expected to carry out its own independent investigation into the matter, but was expected to take a critical view of the information. In the instant case the employment tribunal was entitled to find that OFCOM had discharged its duty to make a reasonable investigation. 47OFCOM had relied on “some other substantial reason” i.e. the breach of trust, as opposed to conduct of the employee, to justify dismissal. The Court of Appeal stated that breach of the mutual duty of trust and confidence should not be used as a convenient label to stick on any situation in which the employer felt let down by an employee or which the employer could use as a valid reason for dismissal whenever a conduct reason was not available or appropriate. However, the employment tribunal had been entitled to conclude, on the facts of the case as found by it, that the reason for the appellant's dismissal was "some other substantial reason" The tribunal was entitled to find that the risk of reputational damage to OFCOM was a sufficient justification for the dismissal of an employee against whom nothing had in fact been proved. The tribunal was entitled to conclude that the dismissal was not wrongful, since the employee had abused the trust and confidence placed in him to a degree that was sufficiently serious to justify summary dismissal.http://bit.ly/NwOdU0

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 17/08/2012
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