The relevant facts in the case of Leach v OFCOM were as follows:
· Mr Leach was employed as an International Policy Advisor from 2005 until his dismissal on 4 May 2008.
· In April 2005, while OFCOM’s recruitment process was in process, but before Mr Leach was appointed, Mr Leach was arrested in Cambodia on suspicion of having committed child abuse offences while doing voluntary work in an orphanage there. There was insufficient evidence to progress this case against Mr Leach therefore the case against him was dropped during 2007. Mr Leach did not tell OFCOM about these events.
· The issues came to OFCOM’s attention during March 2007 via the Serious Organised Crime Authority who had received emails from Mr Leach complaining about his circumstances in Cambodia and an alleged lack of support from the UK authorities. Mr Leach received a first written warning from OFCOM in relation to the emails and was offered counselling.
· In November 2007, OFCOM was contacted by the Metropolitan Police Child Abuse Investigation Command (the CAIC) who alleged that Mr Leach posed a continuing potential threat or risk to children and that there was a risk of media exposure. At the same time, Mr Leach had gone back to Cambodia for what he alleged to be a diving holiday; OFCOM noted that he had gone to a part of Cambodia not known for diving.
· In response to the information received from the CAIC, OFCOM dismissed Mr Leach on the basis that there had been a breakdown in trust and confidence. This decision was upheld on appeal.
· Mr Leach brought claims for unfair dismissal and wrongful dismissal. The Employment Tribunal held that the dismissal was fair on the basis that the reason was “substantial”. It was noted that Ofcom:
o had information available to it on which it reasonably concluded that there was a breakdown of trust and confidence between it and Mr Leach;
o dealt with the information it received from the CAIC responsibly as could be expected;
o was entitled to treat the information received from CAIC under an official disclosure regime as reliable;
o demonstrated that it had insisted a degree of formality and specificity about the disclosure before acting on it;
o discussed the matter with Mr Leach and took into account his responses;
o was entitled to conclude that the responses were not, in all respects wholly convincing and not as convincing as they had been in the past; and
o was entitled to believe that dismissal fell within the range of reasonable responses, given the nature of OFCOM’s organisation, the nature of the allegations and the nature of Mr Leach’s role.
· In addition, the claim for wrongful dismissal did not succeed.
· The Employment Appeal Tribunal and the Court of Appeal upheld the Employment Tribunal’s decision.
Mutual Trust and Confidence
The Court of Appeal commented that the duty of mutual trust and confidence is an obligation at the heart of the employment relationship. This however is not a convenient label to attach to any situation in which an employer feels let down by an employee or which an employer can use as a valid reason for dismissal whenever a conduct reason is not available or appropriate.
Employers should consider carefully what the potential reason for dismissal is. There is nothing to be gained from saying that there is a breach of trust and confidence when in reality, there are for example, conduct issues.
Although OFCOM was held to have fairly dismissed Mr Leach for a breakdown of mutual trust and confidence, there was compelling evidence to substantiate this being the genuine reason. In addition, there were particular sensitivities with this case including OFCOM quite regularly being in the public eye and its role including a statutory duty to have regard to the vulnerability of children. In addition, a dismissal can still be unfair even if there has been a breach of mutual trust and confidence.
The case also gives employers useful guidance when presented 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 likely effect of that disclosure and whether or not there was persuasive evidence of a pressing need for the disclosure to the employer.
Rachael Jessop, Solicitor
+ 44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.