Leach v The Office of Communications (OFCOM)

The issue in this appeal is whether the Employment Tribunal (ET) erred in law in rejecting the Claimant’s case against the Respondent OFCOM, his former employer, for unfair dismissal and breach of contract (wrongful dismissal) as not well-founded. Put that way, this case sounds like yet another employment rights dispute on its way through the legal system. In truth this case has reached this court because it is out of the ordinary.

The Employment Appeal Tribunal (EAT) could not find any error of law in the judgment of the ET when, on 28 January 2010, it dismissed the Claimant’s appeal from the ET decision notified to the parties on 18 December 2008. In May 2010 the Claimant lodged a Notice of Appeal in which he said that he was suffering from post-traumatic stress disorder and was deeply affected by the issues raised in this appeal. When granting permission to appeal on 1 July 2010 I took into account concerns voiced by the then President of the EAT, Underhill J, about some disturbing aspects of the case.

Unexpected difficulties are bound to crop up in the course of efforts to reconcile the statutory rights of an employee to procedural and substantive fairness and the legitimate interests of the employer. Underhill J commented, in particular, on the increasing number of cases in which an employer, as here, gives “breakdown of trust and confidence” as the reason for dismissal. The trust placed by an employer in an employee is at the core of their relationship, which can break down in a wide spectrum of circumstances. Some cases fall short of a “conduct” reason for dismissal. The legislation is clear: in order to justify dismissal the breakdown in trust must be a “substantial reason.” Tribunals and courts must not dilute that requirement. “Breakdown of trust” is not a mantra that can be mouthed whenever an employer is faced with difficulties in establishing a more conventional conduct reason for dismissal.

In this case the breakdown in trust arose from the dilemma of the Respondent when an apparently reliable source alerted it to the Claimant’s alleged activities in Cambodia: if the Respondent continued to employ the Claimant in his overseas position and the allegations were publicised in the media, that could be potentially damaging to the reputation of the Respondent as a responsible organisation entrusted with wide-ranging national and international functions.

To be more specific, the Respondent decided on “breakdown of trust” as the reason for dismissing the Claimant, having been told, at a time when nothing had been proved, of serious, but untested, allegations of child sex abuse by the Claimant overseas and in circumstances where it was difficult for the Respondent to investigate the allegations for itself. The information came to the Respondent in the form of a “limited disclosure” by a specialist Metropolitan Police unit, which was neither investigating the Claimant nor in a position to make full disclosure.

As we shall see, this case shows the need for an employer, to whom a third party discloses information or makes allegations, to assess for itself, as far a practicable, the reliability of what it has been told. The employer should check the integrity of the informant body and the safeguards within its internal processes concerning the accuracy of the information supplied. The employer should consider the likely effect of disclosure and whether there was cogent evidence of a pressing need for disclosure to the employer.

In addition to those general points I should mention three special features that mark this case out from a run-of-the-mill unfair dismissal claim.

First, anonymity. When the case reached this court the names of the parties were anonymised as A and B, as they had been throughout the proceedings in the ET and the EAT, in order to protect the identity of the Claimant. The case was also subject to a restricted reporting order made under rule 50 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. The developments described later in this judgment led the court to dispense with anonymity, to identify the parties by name and to discontinue the restrictions on reporting, those measures having ceased to serve any legitimate purpose in the administration of justice.

Secondly, the absent Claimant. The hearing of this appeal has taken place in the absence of the Claimant and of any representative. He has never been legally represented, which is not an unusual feature of ET and EAT hearings. He argued his case in person at both levels. A troublesome aspect of the appeal is his inability to attend this hearing, because he is currently serving a 12 year prison sentence imposed by the courts in Cambodia on 8 September 2011 for child sex offences. He was arrested in September 2010, after the tribunal hearings were over. He sent written submissions to this court. When the Respondent made an application to strike out the appeal under CPR 52.9(2), Elias LJ gave a direction on 2 December 2011 that the appeal should be heard in the absence of the appellant. At the hearing the Respondent appeared by leading counsel, Mr Thomas Linden QC, who answered the appeal with a proper degree of moderation that was both fair to the Claimant and helpful to the court.

Thirdly, the process leading to summary dismissal. The Respondent did not react in knee jerk fashion to the limited and confidential disclosure of a police assessment that the Claimant posed a continuing risk or threat to children. The Respondent sought clarification, confirmation and some further disclosure before holding an internal disciplinary hearing during which the Claimant was able to put his case and at the end of which the Respondent notified the Claimant of his summary dismissal.

The Respondent is the independent regulator and competition authority for the communications industries in the UK. It is quite regularly in the public eye. Its role includes a statutory duty to have regard to the vulnerability of children. It has complied with that obligation through active involvement in a range of social responsibility initiatives.

By a contract of employment dated 21 April 2005 the Respondent appointed the Claimant to a position, which he had applied for in January 2005 and been offered on 17 March. The position necessitated regular overseas travel: he was employed as an International Policy Adviser (Professional Senior Associate) to the Respondent from 4 May 2005 until his dismissal on 3 January 2008. His role entailed contributing to the development of the Respondent’s UK position to international bodies. He would provide advice to the Respondent and to UK Government departments, UK overseas territories and the UK communications industry.

During the period prior to appointment the Claimant made another visit to Cambodia, which he had previously visited in January 2004. In April 2005, while the Respondent’s recruitment process was in train, but before he was appointed and began to work for the Respondent, the Claimant was arrested in Cambodia on suspicion of having committed child abuse offences while doing voluntary work in the Light House Centre orphanage there. His passport was confiscated. He was unable to return to the UK to take up his post with the Respondent immediately. The case generated press interest. Those proceedings, in which a Municipal Court Order was made on 26 April 2005 that no legal action should be taken against the Claimant, who was then allowed to leave the country, did not finally come to an end until after appeals had taken place. They reached the Supreme Court of Cambodia which, in May 2007, upheld the dismissal of the proceedings for insufficient evidence. The Claimant did not at that time tell the Respondent what had happened or was happening to him.

In connection with those events the Claimant gave false information to the press about his employer. He said that he was working for or with the Department for International Development (DFID), which DFID publicly denied. He was less than candid with the Respondent about the circumstances in which he was unable to return to the United Kingdom to begin work following his appointment. When he began working for the Respondent in May 2005, he had still not informed the Respondent of the events in Cambodia, or of the ongoing court hearings on appeal. He did not tell the Respondent of later related incidents, including a suicide threat by him in the British Embassy sometime in 2006.

In the early stages of his employment and unknown to the Respondent the Claimant sent emails to a wide selection of bodies about his circumstances in Cambodia and about the lack of support from the UK authorities. In March 2007 the Serious Organised Crime Authority (SOCA) drew the Respondent’s attention to the emails. In the course of disciplinary proceedings then taken against the Claimant the Respondent investigated the emails and the Cambodian issues, about which the Claimant provided the Respondent with explanations. The results of the Respondent’s investigation in Cambodia appeared to corroborate the explanations given by the Claimant. The outcome of the disciplinary procedure was that the Claimant was issued with a first written warning about the emails. He was offered counselling. He was also supported by the Respondent when “The Sun” newspaper was about to publish a story about him in around August 2007.

In November 2007 the Metropolitan Police Child Abuse Investigation Command (the CAIC) contacted the Respondent. Its representatives informed senior officials at meetings and in conversations that the Claimant posed a continuing potential threat or risk to children and that there was a risk of media exposure, as the media were known to be interested in the Claimant. At a meeting on 13 December 2007 the CAIC representatives agreed to make formal “limited disclosure” pursuant to the Multi-Agency Public Protection Arrangements created under the Criminal Justice and Courts Services Act 2000. A note of the meeting recorded four particular matters disclosed about the Claimant, including alleged posing as a doctor in order to gain access to children in Cambodia and allegedly frequenting brothels there known to supply children. The information supplied by the CAIC representatives was described by them as “the tip of the iceberg.”

The Respondent did not take the matters disclosed to it at their face value. It probed and questioned them. It asked for more information. But it was not privy to all the evidence. The Claimant, who had returned to Cambodia on a visit in November 2007 for, he told the Respondent, a diving holiday, was invited to respond to the allegations and the assessment that he was considered to be a continuing risk to children. The Respondent was somewhat surprised to be told about the Claimant’s diving holiday in a part of Cambodia not known for diving. It asked him to attend a disciplinary meeting.

In an internal memo dated 17 December 2007 the Respondent’s press adviser wrote that the allegation that the Claimant had visited a child brothel in Cambodia carried significant risk of reputational damage to the Respondent, if it was true and if it were reported in the media:-.

“If it emerged that we were employing someone who we knew had visited a brothel in Cambodia that employs children then this would become a major news story. It would potentially cause serious damage to [the Respondent’s] reputation…”

A disciplinary meeting took place on 3 January 2008. The Claimant put in a 10 page response to the allegations. He addressed each element of the limited disclosure. He indicated that he was a suicide risk depending on the outcome of the meeting. The ET found that nothing that the Claimant said or did enabled the Respondent to discount the assessment confided to it by the CAIC.

The Respondent decided to dismiss the Claimant, taking the view that it had to accept the advice of the CAIC that he continued to be a risk to children and that that breached trust and confidence, which was at the heart of the employment contract. The Respondent considered that the Claimant had not been as open and frank with it as he should have been throughout 2007 or during the disciplinary hearing. They also had regard to the nature of the Respondent’s functions. The dismissal letter dated 3 January 2008 stated that:-

“As we discussed at the meeting, the Metropolitan Police have provided us with a limited disclosure in which they informed [the Respondent] that they consider you to pose an ongoing threat to children. This information has led to a breakdown in the relationship of trust and confidence which is a fundamental part of your employment contract with [the Respondent]. As a result of this breakdown, [the Respondent] has decided to terminate your employment with immediate effect. You are not entitled to any period of notice or payment in lieu of notice.”

As the EAT noted in their judgment, the Respondent did not seek either then or subsequently to justify the dismissal on the basis that the Claimant was in fact guilty of the matters disclosed by the CAIC.

The decision to dismiss was further considered on the Claimant’s internal appeal conducted by Ms Janet Campbell, Director of Human Resources. She undertook further inquiries. She had another meeting with the CAIC officers. She concluded that the Respondent had been left with no alternative other than to dismiss the Claimant, given the limited disclosure by the CAIC that the Claimant was a continuing risk to children.

The Respondent gave as the reason for dismissing the Claimant “some other substantial reason” under s. 98(1)(b) of the Employment Rights Act 1996 (the 1996 Act). No case was pleaded that the Respondent was entitled to dismiss the Claimant by reason of his conduct within the meaning of s.98(2)(b). The reason relied on by the Respondent was the disclosure to it by the CAIC, as a unit of the Metropolitan Police, that the Claimant was deemed to be a continuing threat to children. That meant that the fundamental relationship of trust and confidence between the parties had broken down. Further, the Claimant had not been as open and forthcoming with Respondent as he should have been.

Following a 4 day hearing in September 2008, at which Claimant conducted his case in person, the ET gave a reserved judgment of 116 paragraphs on 18 December 2008.

The ET correctly directed itself on the law. It made specific findings of fact on the reason for dismissal, on the Respondent’s belief on reasonable grounds as to a reason for dismissal, on the reasonableness of the investigation and on whether dismissal was a reasonable response.

The ET found that the reason for dismissal was that :-

“77.

… due to the information provided to the Respondent by the CAIC, there had been a breakdown of mutual trust and confidence between the Respondent and the Claimant.

The ET rejected the Claimant’s contention that he was dismissed due to pressure from the Respondent’s CEO. The Claimant had conceded that he could have been fairly dismissed over the emails he had sent from work.

The ET was satisfied that the Respondent had complied with its obligations under the statutory dismissal and disciplinary procedure: see [83]. It was satisfied that the Respondent’s investigation was reasonable in all the circumstances: see [94]. After pressing the matter with the CAIC, the Respondent had received limited disclosure and additional information and could not reasonably obtain further information in that respect.

Given the result of its earlier investigations the Respondent had been sceptical over the information initially provided by the CAIC. It had therefore liaised several times to confirm and clarify the information received. At the appeal stage Ms Campbell had also assured herself, as far as was reasonable, of a number of matters about the seniority of the CAIC officers involved, that the CAIC process was genuine and appropriate, and that the CAIC had sought their own legal advice. The Claimant had been interviewed and was given a full opportunity to state his position at the disciplinary hearing and on the appeal. During the appeal process Ms Campbell had investigated her own areas of concern and had investigated further those expressed by the Claimant.

The ET was satisfied, when objectively considering all the circumstances, that the Respondent had information available to it on which it reasonably concluded that there was a breakdown of trust and confidence between it and the Claimant: see [95] and [107]. It dealt with the information it received as responsibly as could be expected and it was entitled to treat the information received from the CAIC under an official disclosure regime as reliable. The Respondent had not been uncritical of the information and had insisted on a degree of formality and specificity about the disclosure before acting on it. The Respondent had discussed the matter with the Claimant and took into account his responses. It 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.

The ET held that it was reasonable for the Respondent to conclude that there was no significantly legitimate reason to discount or abandon the CAIC view. As the ET commented;

“102.

The CAIC approach places employers and employees in a difficult position, by simply providing information relating to an employee without making significant corroborative material available, although the Tribunal recognises and understands the necessity for the CAIC to preserve the integrity of its information.”

When the Cambodian issue first arose the Respondent had undertaken its own investigation and had assured itself, as far as was reasonably possible, that it should accept the Claimant’s version of events. The information provided by CAIC appeared to conflict with the Respondent’s initial view on some aspects, but the Respondent did not simply accept the information provided by the CAIC but, as far as possible, had pursued further confirmation, clarification and information. There was little else the Respondent could do other than rely on the integrity of the CAIC process.

The ET also held that the Respondent was entitled to treat the disclosed information as justifying dismissal. Dismissal fell within the range of reasonable responses, given the nature of the Respondent’s organisation, the nature of the allegations and the nature of the Claimant’s role. There were no reasonable alternatives available: see [108].

Finally, when considering the circumstances as a whole, including equity and the substantial merits of the case, the Respondent had acted reasonably in treating the reason for dismissal as being a sufficient reason for dismissing the Claimant.

On wrongful dismissal, the ET held that summary dismissal was justified by Claimant’s breaches of duty in his lack of candour with the Respondent’s management about his situation and circumstances and the events in Cambodia; by the potential publicity that the events would be likely to generate; by his unjustified email campaign against external organisations; and by what was unknown to it at the date of dismissal, but discovered before the ET hearing.

The EAT, having decided to dismiss the Claimant’s appeal on the ground that no question of law arose from the ET’s decision, said this towards the end of their judgment:-

“48.

We have found this a worrying case. It is not our role, and we are in no position, to make a judgment as to whether the Claimant has committed offences against children. The Metropolitan Police clearly believe he has, and it would, or in any event, should, not have formed that belief without reliable information. But it is only fair to record that the Claimant has been (in effect) acquitted in the only proceedings brought against him; and he has….produced apparently powerful statements in support of his innocence. If he is indeed innocent, he has suffered a very grave injustice. But the risk of injustice is inherent in a system where the police are permitted to make apparently authoritative “disclosures” of the kind made here, unsupported by any finding of a court; and it will no doubt be said that the risk is the price that has to be paid for achieving the protection of children. In any event, as we have already emphasised, the question for the Employment Tribunal was not, as such, whether the Claimant has suffered an injustice but whether the conduct of the respondent towards him was fair. If he was treated unfairly by CAIC, his remedy is against them.”

In a number of passages in the “discussion” section of the excellent judgment prepared by Underhill J the EAT identified their concerns about breakdown in trust as the reason given by the Respondent for dismissing the Claimant. It did not find “the terminology of ‘trust and confidence’ particularly helpful” in pleading the Respondent’s case: see [25]. In cases of acting on untested information (or where the employee has been acquitted on the very facts relied on) the EAT said:-

“27.

…It sticks in the throat that an employee may lose his job, or perhaps in practice any chance of obtaining further employment, on the basis of allegations which he has had no opportunity to challenge in any court of law-or may indeed have successfully challenged. On the other hand, it has to be recognised that there are cases where it is necessary for employers to be warned of facts which indicate that an employee (or potential employee) is a risk to children, even in the absence of any conviction. The courts have had to grapple in a number of cases with how the balance should be struck…”

The judgment continued : -

“28.

In our judgment an employer who receives information from CAIC or a similar body, under an official disclosure regime, that an employee poses a risk to children must, in principle and subject to certain safeguards, be entitled to treat that information as reliable….In our view it is plain that an employer in such a case cannot be expected to carry out his own independent investigation in order to test the reliability of the information provided by a responsible public authority. He will typically have neither the expertise nor the resources to do so.”

The EAT added that employer would not be acting reasonably for the purpose of s.98(4) of the 1996 Act if he took an uncritical view of the information disclosed to him: see [29]. The employer was entitled to insist on a sufficient degree of formality and specificity about disclosure before contemplating any action against the employee on the basis of it, to raise questions about its reliability and to seek credible reassurance that all relevant information has been taken into account: see [29]. On that aspect of the case the EAT concluded that the ET’s finding that the Respondent had discharged its duty to make reasonable investigation by adopting “an appropriately critical approach” was unimpeachable.

The EAT then considered whether the Respondent had a sufficient reason for dismissal. It was on this point that the EAT commented on their concerns about “breakdown in trust” as a sufficient reason for dismissal. They pointed out that the conduct disclosed by the CAIC did not occur while the Claimant was at work or travelling for work of the Respondent and that his job did not involve his working with children in any way. In its reason for dismissal the Respondent had not relied on the need to protect children, but on the fact of the CAIC’s disclosure as leading to a breakdown in trust and confidence and the ET accepted that case. The EAT commented:-

“31.

…We have already observed that we do not regard the language as helpful. We have observed a growing trend among parties to employment litigation to regard the invocation of “loss of trust and confidence” as an automatic solvent of obligations: it is not. In the present case it is necessary to identify more particularly why CAIC’s disclosure is said to have, in effect, made it impossible for the Respondent to continue to employ the Claimant.

32.

Unfortunately this question is not explicitly considered by the Tribunal. The nearest that it comes to it is the finding in para.108 that dismissal was reasonable “given the nature of the Respondent’s organisation, the nature of the allegations, and the nature of the Claimant’s role.” That is decidedly summary. But its brevity appears to reflect the way the case was argued before the Tribunal….”

In further discussion of the point the EAT concluded that it was adequately clear what the ET had in mind. The Respondent is a high profile public authority with responsibilities that covered some aspects of child protection. The Claimant’s representative 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, which could cause the Respondent serious reputational damage if it received publicity and which would be exacerbated if it emerged that the Respondent had been warned by the responsible authorities about the Claimant’s activities, but had taken no action.

In their conclusion on this crucial aspect of the case the EAT said:-

“33.

The question thus is whether the risk of such reputational damage was a sufficient justification for the dismissal of an employee against whom nothing had in fact been proved. We do not find that question particularly comfortable. In a case of this kind, not only is it not established that the employee is in fact a danger to children, but, even if he is, the dismissal will not significantly reduce the risk of his offending (since opportunities for offending are not afforded by the employee’s job), but is concerned solely with saving the employer’s reputation. That is much less evidently justifiable. Nevertheless, after careful reflection, we have come to the conclusion that, in the circumstances of the present case, the Tribunal was entitled to regard the dismissal of the Claimant as justified. It was in our view legitimate for the Respondent, in its particular position, to be jealous of its public reputation. It was entitled to take the view that to continue to employ, in the position in question, a person who it had been officially notified was a child sex offender and a continuing risk to children, would-if he were subsequently exposed (which it was plainly reasonable to anticipate)-severely shake public confidence in it. We are acutely aware, as was the Tribunal, that to justify the Claimant’s dismissal on the basis of reputational risk in the absence of any established misconduct may involve a grave injustice to him. But it is essential to bear in mind that under s.98 the central question is what it was reasonable for the employer, in the relevant circumstances to do. If the Claimant is in fact innocent, the injustice has been caused not by the employer but by those who have falsely accused him and by CAIC which has given credence to those accusations ….”

The EAT went on to reject the human rights points taken by the Claimant (see the discussion of them below).

In his grounds of appeal and written submissions the Claimant made the points that he was acquitted in Cambodia in 2007; that the CAIC allegations were false; that he is innocent of the charges against him; and that his job with the Respondent was not work with children

As for the unfair dismissal, the Claimant made the following particular points:-

As for the claim for wrongful dismissal, he submitted that the Respondent could not rely on lack of candour as a sufficiently serious breach of contract to justify his summary dismissal. He denied that there was any lack of candour. His dismissal was entirely attributed to the disclosure information.

The Claimant had further points on the Human Rights Act 1998 and Article 6 and Article 8 of the Convention, contending that the EAT had made an error of law in the interpretation of the Convention. He relied on the presumption of innocence and the right to a fair trial. He submitted that his dismissal effectively rendered him unemployable, which was a serious interference with his private life.

In conclusion, he was a loyal employee, he worked very hard for the Respondent, despite serious mental health difficulties, and appreciation for his efforts had been expressed by a performance award in his severance pay.

I agree.

I also agree.