The Court of Appeal has warned in Leach v OFCOM  EWCA Civ 959 that a breakdown in trust and confidence should not be used as a convenient justification for dismissal in circumstances where an employer simply lacks another valid reason for dismissal.
Mr Leach was summarily dismissed by OFCOM due to a breakdown in trust and confidence (under the general heading of "some other substantial reason") after a police disclosure linked Mr Leach to child abuse in Cambodia. Mr Leach claimed unfair and wrongful dismissal but both claims were dismissed. The Court of Appeal made some important observations about dismissals for a breakdown in trust and confidence. Although the mutual duty of trust and confidence goes to the heart of the employment relationship, this should not be used as a "convenient label to stick on any situation" where the employer feels let down by the employee or where one of the other fair reasons for dismissal does not apply. All the relevant circumstances must be examined to determine the real reason for dismissal and whether this is substantial. In this case, Mr Leach's role, the nature and source of the allegations, the efforts made by OFCOM to obtain clarification, Mr Leach's dishonest responses and the alternative courses of action that had been open to OFCOM were all considered and accordingly his claim failed.
This is a reminder to employers that where an employee is to be dismissed under the residual category of "some other substantial reason", careful thought must be given to what that reason is and whether it is substantial. The term "breakdown in trust and confidence" will not in itself justify the dismissal.