Leach v The Office of Communications (OFCOM)

Factual and Procedural Background

The appeal concerns whether the Employment Tribunal (ET) erred in law by rejecting the Claimant's case against the Respondent, his former employer, for unfair dismissal and wrongful dismissal. The Claimant was employed by the Respondent, an independent regulator and competition authority for the communications industries in the UK, as an International Policy Adviser requiring overseas travel. Prior to and during employment, the Claimant was subject to allegations of child sex offences in Cambodia, which led to police involvement and limited disclosure by a specialist police unit (CAIC) to the Respondent indicating the Claimant posed a continuing risk to children.

The Respondent, concerned about reputational damage and acting on the limited disclosure, conducted an internal disciplinary process, during which the Claimant responded to allegations. The Respondent dismissed the Claimant summarily on grounds of a breakdown in trust and confidence, citing the police disclosure as a substantial reason for dismissal under the Employment Rights Act 1996. The Claimant appealed the dismissal decision to the ET, which upheld the dismissal as fair after a full hearing. The Claimant further appealed to the Employment Appeal Tribunal (EAT), which dismissed the appeal, finding no error of law in the ET's decision. The Claimant then sought permission to appeal to the Court of Appeal, which was granted.

The appeal hearing took place in the absence of the Claimant, who was serving a prison sentence in Cambodia for child sex offences. The Respondent was represented by leading counsel. The case involved issues of anonymity and restricted reporting orders, which were later lifted as they ceased to serve a legitimate purpose.

Legal Issues Presented

1. Whether the Employment Tribunal erred in law in finding the Respondent's reason for dismissal—breakdown of trust and confidence based on limited police disclosure—was a "substantial reason" justifying fair dismissal under section 98(1)(b) of the Employment Rights Act 1996.
2. Whether the Respondent acted reasonably and fairly in dismissing the Claimant on the basis of unproven and untested allegations communicated via limited disclosure by the police unit.
3. Whether the Claimant's summary dismissal without notice constituted wrongful dismissal due to lack of sufficient breach of contract.
4. Whether the dismissal infringed the Claimant's rights under Articles 6 and 8 of the European Convention on Human Rights.

Arguments of the Parties

Appellant's Arguments

• The Claimant contended he was acquitted of the allegations in Cambodia, and the CAIC allegations were false and unproven.
• The Claimant argued it was unprecedented and unfair to dismiss an employee not working with children for alleged, unproven offences, relying solely on potential reputational risk.
• He asserted that the internal disciplinary process was unfair because nothing he said could have altered the outcome, denying him a fair hearing.
• The Claimant claimed the EAT erred in law in its interpretation of authorities and in allowing dismissal based on untested allegations.
• He submitted that the dismissal restricted his future employment prospects, engaging his rights under Article 8 of the European Convention.
• Regarding wrongful dismissal, he denied any lack of candour and argued the Respondent could not rely on it to justify summary dismissal.
• He raised human rights arguments, invoking the presumption of innocence and the right to a fair trial under Articles 6 and 8, contending his dismissal was a serious interference with his private life.
• He emphasized his loyalty and hard work, despite mental health difficulties and prior recognition by the Respondent.

Respondent's Arguments

• The Respondent maintained that the dismissal was justified by a substantial reason—breakdown of trust and confidence—arising from the limited disclosure by the CAIC that the Claimant posed a continuing risk to children.
• They argued the disclosure justified concern about reputational damage given the Respondent's public role and statutory duties, even though the Claimant's job did not involve working with children.
• The Respondent emphasized that they conducted a reasonable and appropriately critical investigation of the information provided and gave the Claimant an opportunity to respond.
• They denied that the dismissal was wrongful, asserting that the Claimant's lack of candour and failure to disclose relevant information constituted a serious breach of contract justifying summary dismissal.
• The Respondent rejected the human rights claims, asserting that the dismissal did not infringe the Claimant's rights under Articles 6 or 8 of the European Convention.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed whether the Respondent's reason for dismissal amounted to "some other substantial reason" under section 98(1)(b) of the Employment Rights Act 1996 and whether the dismissal was fair under section 98(4). The court acknowledged the difficulty faced by both parties due to the limited disclosure by the CAIC, which indicated the Claimant posed a continuing risk to children but was untested in court.

The court agreed with the ET and EAT that the Respondent was entitled to treat the limited disclosure as reliable, subject to safeguards. The Respondent conducted a reasonable and appropriately critical investigation, sought clarification, and provided the Claimant with a full opportunity to respond during disciplinary and appeal proceedings.

The court emphasised that the mutual duty of trust and confidence is central to the employment relationship but cautioned that "breakdown of trust" is not a convenient label to justify dismissal in all cases. The ET had carefully considered the nature of the Respondent's organisation, the Claimant's role, the source and nature of allegations, the investigation undertaken, and the absence of reasonable alternatives to dismissal.

The court found no error of law or perversity in the ET's conclusion that the Respondent's reason for dismissal was substantial and that dismissal fell within the range of reasonable responses. The court also agreed that the summary dismissal was justified by the Claimant's breaches of trust and candour.

Regarding human rights, the court held that Article 6 did not apply to the dismissal decision itself and that any interference with Article 8 rights was justified, proportionate, and lawful in light of the Respondent's legitimate aim to protect its reputation and public confidence.

Holding and Implications

The court DISMISSED the appeal, upholding the decisions of the ET and EAT.

The direct effect of this decision is to confirm that an employer may rely on limited but credible information from a responsible public authority indicating an employee poses a risk to others as a substantial reason to justify dismissal, even in the absence of proven misconduct. The decision affirms that employers must conduct reasonable investigations and afford procedural fairness but are not required to independently verify all allegations made by specialist police units. No new precedent was established beyond the application of existing legal principles to the facts of this case.