Maxine Orr of Worthingtons Solicitors Belfast reviews the recent decision of Leach v OFCOM (2012) which held risk of damage to an Employers reputation was grounds for dismissal.
Risk of damage to employers’ reputation is grounds for dismissal
Mr Leach was employed as an International Policy Advisor by Ofcom, the independent regulator and competition authority for the communications industries in the UK. Ofcom’s role includes a statutory duty to have regard to the vulnerability of children and it complied with that obligation through active involvement in a range of social responsibility initiatives.
Before starting his job with Ofcom, Mr Leach had travelled to Cambodia and while there was arrested on suspicion of having sexually abused children on a previous visit to the country, but was not charged. His detention nevertheless meant that there was a delay in Mr Leach taking up his position with Ofcom, although he did not inform Ofcom of this reason. However the UK Serious and Organised Crime Authority (SOCA) became aware of the allegations as did the British press and there was media interest in Mr Leach.
In November 2007, officers from the Metropolitan Police Child Abuse Investigation Command (CIAC) contacted Ofcom and made allegations against Mr Leach going substantially beyond what Ofcom already knew. Under a formal procedure known as “limited disclosure” the CAIC told Ofcom about four specific allegations against Mr Leach including that he had indecently assaulted a child and had visited brothels known to supply children. The officers said that the information they had provided was “the tip of the iceberg”. Ofcom probed CAIC for more information and questioned the reliability of the allegations disclosed to it, but was not provided with all the evidence. It invited Mr Leach to respond to the allegations and to the assessment that he was considered to be a continuing risk to children. Meanwhile, Ofcom’s press advisor gave the view that the allegations carried a “significant risk of reputational damage” to the organisation if they were true and were covered in the press.
In January 2008, Mr Leach was asked to attend a disciplinary meeting at which the disclosures were discussed in detail. He denied all of them. Ofcom nevertheless decided to dismiss him, taking the view that it had to accept the CAIC’s advice that he continued to be a risk to children. It also considered that Mr Leach had not been as open and as frank with it as he should have been throughout 2007 or during the disciplinary hearing. In the dismissal letter, Ofcom referred to a “breakdown in the relationship of trust and confidence”. Mr Leach’s appeal to the Director of Human Resources was dismissed. He issued proceedings for unfair and wrongful dismissal.
The Tribunal found that Mr Leach had been fairly dismissed. The breakdown of trust and confidence being “some other substantial reason” justifying dismissal under the Employment Rights Act 1996. His appeal to the Employment Appeals Tribunal was also dismissed. The Court of Appeal stated that the core question was whether the Tribunal was entitled to find that the reason for dismissal given by Ofcom fell within the category of “some other substantial reason”. The Employment Appeals Tribunal had taken the view that an employer who receives information from the CAIC or a similar body, under an official disclosure regime, that an employee poses a risk to children must, in principle and subject to certain safeguards, be entitled to treat that information as reliable. An employer in such a case cannot be expected to carry out its own independent investigation in order to test the reliability of the information provided, since it will typically have neither the expertise nor the resources to do so. Much of the case centred around the fact that there was injustice to Mr Leach by Ofcom acting on untested and unchallenged allegations and not convictions. However the Employment Appeals Tribunal stated that only question that the Tribunal had to deal with was whether the employer acted reasonably in the circumstances, and it was satisfied that the Tribunal was entitled to regard Ofcom’s actions as justified. The Tribunal did state that the mutual obligation at the heart of the employment relationship i.e. the breakdown of trust and confidence “is not a convenient label to stick on any situation on which the employer feels let down by an employee, or which the employer can use as a valid reason for dismissal whenever a conduct reason is unavailable or inappropriate”.
Maxine Orr is a Partner specialising in employment law in Worthingtons Commercial Solicitors, Belfast.