In the case of Leach v OFCOM, the Court of Appeal has upheld a Tribunal’s decision that an employee was dismissed fairly for “some other substantial reason” (SOSR) when the employer discovered allegations that he had been involved in child abuse in Cambodia. The reason for the dismissal was the potential damage to the employer’s reputation as a responsible organisation entrusted with wide ranging national and international functions.
Mr Leach was summarily dismissed by OFCOM following a “limited disclosure” by a specialist Metropolitan Police unit that he had been involved in child abuse in Cambodia. The police were not investigating Mr Leach, or able to provide further information, nor had Mr Leach been convicted of any offence. Despite the fact the allegations had no direct relationship to Mr Leach’s duties, OFCOM decided to summarily dismiss him, due to the perceived reputational risk. Mr Leach brought claims for unfair dismissal and wrongful dismissal, which failed at the Tribunal and Employment Appeal Tribunal. The Tribunal’s decision has now been upheld by the Court of Appeal.
The Court of Appeal held that Mr Leach had been fairly dismissed for “some other substantial reason”, due to the risk of damage to OFCOM’s reputation, the key considerations being the nature and source of the allegations, the nature of OFCOM and Mr Leach’s role, and the efforts made by OFCOM to obtain clarification of the alleged offences and Mr Leach’s response (he had not fully disclosed all details to OFCOM). The Court recognised that both OFCOM and Mr Leach were in difficult situations, as OFCOM could not make an assessment of the allegations, nor ignore them, but Mr Leach was at risk of a serious injustice if he lost his job due to unproven allegations by a third party. However, the Tribunal’s job was just to decide if an employer acted fairly, not whether an employee had suffered an injustice.
The Court of Appeal went on to offer some guidance to employers in similar situations. It said an employer should assess for itself, as far as practicable, the reliability of what it is being told, check the integrity of the informant body and what safeguards it has in place, and consider the likely effect of disclosure and whether there was cogent evidence of a pressing need for disclosure to the employer.
Impact for Employers
- Initially OFCOM tried to rely upon a breakdown of trust and confidence as their “SOSR”, with the Tribunal ultimately identifying that the reason was in fact concerns about reputational damage. The Court warned employers that they should not use the breakdown of trust and confidence as a “convenient label to stick on any situation” when an employer feels let down by an employee, or dismissal for conduct is not appropriate.
- This type of situation is hopefully a very rare one, but ultimately a very difficult situation for any employer to deal with. This is quite an extreme case and the key starting point for most employers dealing with criminal allegations or charges against employees relating to off duty conduct will be whether or not the alleged conduct impacts upon their ability to do their job.