The following case (Leach v Office of Communications) illustrates some of the difficulties faced by an employer which receives an allegation against an employee made by a third party. It also highlights the choices faced by an employer in characterising the reason for dismissal, and the importance of ensuring that this reason is a potentially fair reason for dismissal within section 98 Employment Rights Act (ERA). A reason falls within section 98 ERA if it:
- relates to the capability or qualifications of the employee;
- relates to the conduct of the employee;
- is that the employee is redundant;
- is that the employee could not continue to work without contravening an enactment; or
- is some other substantial reason of a kind such as to justify the dismissal of the employee.
Once a potentially fair reason for dismissal under section 98 is established the employer must then satisfy a tribunal that it acted reasonably under section 98(4).
The claimant was employed by the independent regulator, the Office of Communications (OFCOM), as an international policy advisor, which involved regular overseas travel but no contact with children. OFCOM has a statutory duty to have regard to the vulnerability of children. A specialist Metropolitan police unit informed OFCOM of serious, but untested, allegations against the claimant of child sex abuse in Cambodia. In the police's opinion the claimant posed a continuing potential threat to children and there was a risk of media exposure. OFCOM sought further information which resulted in the police making a formal 'limited disclosure' pursuant to multi-agency public protection arrangements.
OFCOM subsequently held a disciplinary hearing at which the claimant was given the opportunity to answer the allegations. At this stage further matters came to light and it was clear that the employee had not been open and honest with his employers over the allegations. Following the hearing OFCOM summarily dismissed the claimant on the grounds that it had to accept the police evidence that he was a risk to children. It also concluded that the claimant had not been open and honest with them, which had resulted in a breakdown in trust and confidence. He claimed unfair dismissal.
The employment tribunal held that OFCOM was entitled to treat the information provided under an official disclosure regime as reliable. The tribunal found that the reason for dismissal put forward by OFCOM was substantial and did fall within the definition of 'some other substantial reason' within section 98 ERA. The dismissal was within the band of reasonable responses open to the employer within section 98(4) ERA given the nature of OFCOM's organisation, the nature of the allegations and the nature of the claimant's role.
On appeal the Employment Appeal Tribunal (EAT) felt that the employment tribunal's reasoning was correct but a little brief. In particular it had not considered in detail whether damage to OFCOM's reputation was a sufficient justification for dismissal. The EAT concluded that it was; to continue to employ a person who had been officially notified as a child sex offender and a continuing risk to children would, if he were subsequently exposed, severely shake public confidence in OFCOM. The claimant's case was rejected and he appealed.
The Court of Appeal upheld the decisions of the tribunal and the EAT, confirming that it had been fair to dismiss the claimant following the police disclosure that the employee had been involved in sex offences in Cambodia, despite the fact that the offences were not proved or admitted and were not directly linked to the claimant's employment. The employment tribunal had looked at the reason for dismissal put forward by OFCOM and had decided that it was 'some other substantial reason' within section 98 ERA and sufficient to justify dismissal. The claim of unfair dismissal was dismissed.
The Court commented that the case showed the need for an employer, to whom a third party discloses information or makes allegations, 'to assess for itself, as far as practicable, the reliability of what it has been told.' The employer should check the integrity of the informant body and seek safeguards concerning the accuracy of the information supplied. The employer in this case was praised for not having a knee-jerk reaction but pursuing a thoughtful and thorough investigation.
It should also be remembered that not all police investigations or even convictions will justify dismissal. As the ACAS Code cautions 'A police investigation, criminal charge or conviction related to off-duty conduct is not necessarily a reason for disciplinary action in itself.' Employers should consider the employee's continuing suitability for the job and the impact on the employee's relationship with the employer, fellow employees and customers.
The Court commented on the increasing number of cases where an employer gives 'breakdown of trust and confidence' as a reason for dismissal. The Court reminded employers that the provisions of the ERA are clear; to justify dismissal the breakdown in trust must be 'substantial' within the meaning of section 98(1)(b) (some other substantial reason). This requirement will not be diluted and the Court cautioned against employers resorting to 'breakdown of trust' where a 'conventional' reason for dismissal was not available (such as capability, conduct, redundancy etc).