The Court of Appeal recently considered a case about the dismissal of an employee by OFCOM and whether this was justified (Leach v Office of Communications). The case gives guidance on dismissals for “some other substantial reason” and the process an employer needs to follow in order to fairly dismiss for this reason.
OFCOM dismissed Mr Leach following receipt of information that he may have been involved in sex offences against children in Cambodia. The information was provided by way of a limited disclosure from a specialist Metropolitan Police unit. OFCOM asked questions and requested clarification of certain points in the disclosure (because the allegations were unproven) before ultimately inviting Mr Leach to a disciplinary hearing. Following the hearing, OFCOM made the decision to dismiss Mr Leach for a breakdown in mutual trust and confidence.
The Employment Rights Act 1996 refers to five reasons for fair dismissal; one of these is “some other substantial reason of a kind as to justify dismissal,” often shortened to SOSR. The dismissal in this case was said by OFCOM to be a SOSR dismissal.
The initial judgment on the case by an Employment Tribunal ruled that the dismissal was justified and the Employment Appeal Tribunal agreed with that judgment. Mr Leach appealed to the Court of Appeal, arguing that he had not been found guilty of any offences and it was not reasonable for OFCOM to have terminated his employment.
The Court of Appeal also agreed with the Employment Tribunal judgment and stressed that OFCOM had followed a fair procedure by adopting a critical and questioning stance of the disclosure, allowing Mr Leach an opportunity to have his say and conducting even further investigation upon appeal. The Employment Tribunal was therefore correct to agree that the dismissal was within the range of reasonable responses for OFCOM.
The judgment by the Court of Appeal made it clear that an employer in receipt of information from a third party must establish for itself as far as reasonably practicable, the reliability of the information given and the integrity of the third party informant. There should not be a knee-jerk reaction. The employer should also consider the likely effect of disclosure and whether there was evidence of a pressing need for the disclosure to have been made.
The Court went on to stress that SOSR is not a catch-all reason for employers who cannot find a more conventional reason for a dismissal. The reason has to be ‘substantial’ and also a fair process must be followed in all circumstances. SOSR dismissals are extremely fact-specific and legal advice should always be sought in circumstances where a SOSR dismissal is being contemplated. In this case, the process followed by OFCOM was commended and being an authority that came under regular media scrutiny, the risk to their public reputation if they did not dismiss was found to have been high.
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