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Leach v Office of Communications (OFCOM) [2012] EWCA Civ 959 CA
unfair dismissal | trust and confidence | reputational
damage | third-party disclosures on employees
The Court of Appeal has upheld a decision that the Office of Communications
(OFCOM) was entitled, in dismissing an employee, to rely on an official
disclosure that he presented a risk to children and consider the potential
reputational damage if the allegations against him were true.
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Implications for employers
- In this case, the Court of Appeal gave useful guidance for employers
that are provided with information about an employee by a third
party.
- The employer should assess for itself, as far as practicable, the
reliability of the information that it has been given.
- The employer should consider the likely effect of the disclosure,
and whether or not there was “cogent evidence of a pressing need for the
disclosure to the employer”.
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OFCOM is the independent regulator and competition authority in the UK for
the communications industries. It has a statutory duty to have regard to
the vulnerability of children. On 4 May 2005, OFCOM employed Mr Leach as an
international policy adviser, a senior position that involved regular overseas
travel.
In April 2005, before he had been appointed by OFCOM, Mr Leach was arrested
in Cambodia, on suspicion of having committed child abuse offences in that
country. In late April, Mr Leach was allowed to return to the UK, although
the Cambodian legal proceedings continued until May 2007, when they were
dismissed for insufficient evidence.
Throughout this period, Mr Leach did not tell OFCOM about these
matters. In March 2007, the Serious Organised Crime Agency drew OFCOM’s
attention to emails that Mr Leach had sent to a “wide selection of bodies” about
his circumstances in Cambodia. OFCOM’s investigations appeared to
corroborate Mr Leach’s explanations for these emails, and Mr Leach was given a
first written warning. OFCOM supported Mr Leach, and offered him
counselling.
In November 2007, the Metropolitan Police Child Abuse Investigation Command
(CAIC) informed senior officials at OFCOM that Mr Leach posed a continuing
potential threat or risk to children and that there was a risk of media
exposure. At a meeting on 13 December 2007, the CAIC agreed to make a
formal “limited disclosure” about Mr Leach, under a statutory process. The
information given by the CAIC included that Mr Leach had allegedly posed as a
doctor to gain access to children in Cambodia and frequented brothels that were
known to supply children.
OFCOM asked the CAIC for more information, and invited Mr Leach to a
disciplinary hearing to respond to the allegations. At this stage, OFCOM
was concerned about a significant risk of reputational damage if the allegations
against Mr Leach were true and reported in the media.
Following a disciplinary hearing, OFCOM decided to dismiss Mr Leach on the
basis that it had to accept the evidence of the CAIC and that his continuing to
be a risk to children breached the duty of trust and confidence. In doing
so, OFCOM had regard to its public functions, as well as the fact that Mr Leach
had not been completely open with it about his situation. Mr Leach’s appeal
was unsuccessful, and he claimed unfair and wrongful dismissal. OFCOM
argued that the dismissal was fair for “some other substantial
reason”.
The employment tribunal dismissed Mr Leach’s claims. The tribunal found
that OFCOM had been entitled to treat the CAIC information - provided under an
official disclosure regime - as reliable. OFCOM had not simply accepted the
CAIC information at face value, but had, as far as possible, pursued further
confirmation, clarification and information. Ultimately, however, there was
little that OFCOM could do other than rely on the integrity of the CAIC
process.
The Employment Appeal Tribunal (EAT) dismissed Mr Leach’s appeal. The
EAT held that, although an employer in OFCOM’s position would not be acting
reasonably (for the purposes of unfair dismissal) if it took an “uncritical
view” of the information disclosed to it, OFCOM had adopted an “appropriately
critical approach”. The EAT had concerns about OFCOM’s use of “breakdown in
trust” as the reason for dismissal, noting a “growing trend...to regard the
invocation of ‘trust and confidence’ as an automatic solvent of
obligations”. The tribunal had not explicitly considered why the CAIC
disclosure had, in effect, made it impossible for OFCOM to continue to employ Mr
Leach. However, the EAT found that the tribunal had had in mind that:
- OFCOM is a high-profile public authority with responsibilities that cover
some aspects of child protection;
- Mr Leach’s role took him abroad and, if he was a paedophile, there would
be a concern that he could take advantage of foreign trips to engage in child
sex abuse; and
- any such abuse would cause OFCOM serious reputational damage if it
received publicity, which would been exacerbated if it emerged that OFCOM had
been warned about Mr Leach’s activities by the relevant authorities, but had
taken no action.
The EAT found that the crucial question was whether or not the risk of this
reputational damage was a sufficient justification for dismissing Mr Leach, in
circumstances in which nothing had been proved against him. Although the
EAT was “acutely aware” that to justify Mr Leach’s dismissal on the basis of
reputational risk in the absence of any established misconduct may have involved
a “great injustice” to him, the central question was what it was reasonable for
OFCOM to do in the circumstances. Mr Leach appealed to the Court of Appeal,
by which time he was serving a prison sentence in Cambodia for child sex
offences, having been arrested after the EAT hearing.
The Court of Appeal recognised that both OFCOM and Mr Leach had been placed
in a very difficult position by the CAIC. OFCOM could not simply ignore the
CAIC disclosure, nor could it make an assessment of the allegations about him
and the risk he posed. Mr Leach was at risk of injustice if he lost his job
on the basis of unproven allegations. The Court could not improve on the
“excellent analysis” of the EAT, and agreed “totally” with its
judgment. The Court noted that the mutual duty of trust and confidence is
not a “convenient label to stick on any situation” in which an employer feels
let down by an employee, or that an employer can use as a valid reason for
dismissal whenever a conduct reason is not available or
appropriate. However, the employment tribunal had examined all the relevant
circumstances and its decision, upheld by the EAT, was not flawed or
perverse.
The Court of Appeal also rejected Mr Leach’s human rights arguments, noting
that human rights points “rarely add anything much to the numerous detailed and
valuable employment rights conferred on workers”. In particular, the Court
held that, even if the loss of employment opportunities in consequence of a
dismissal for some other substantial reason was capable of being an interference
with the right to respect for private life (“which is not some kind of universal
haven for the protection of the whole of human life”), the interference was
justified as having been done for a lawful reason in light of the perceived risk
posed by Mr Leach. OFCOM’s aim was legitimate (to protect confidence in its
regulatory role and its reputation for acting responsibly) and it was achieved
by proportionate means (Mr Leach's lawful dismissal).
Additional resources
Case transcript of
Leach v Office of Communications (OFCOM) (on the BAILII website)
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