What if you are an employer, wanting to dismiss, but your reasons do not fit neatly into the redundancy, misconduct or incapability labels?
This was the situation in Leach v OFCOM  EWCA Civ 959. The communication regulator OFCOM was informed by the Metropolitan Police Child Abuse Investigation Command (CAIC) that employee Michael Leach was suspected of paedophilia in Cambodia; and there was a risk of adverse publicity with reputational damage. Mr Leach had earlier been acquitted of child abuse charges in Cambodia.
There was no proven misconduct by Mr Leach. Any misconduct did not occur at work. Mr Leach’s job did not involve working with children. The CAIC information was limited and not corroborated. Mr Leach was loyal and hardworking; and would find it difficult to find another job
OFCOM decided to apply due process and summarily dismissed Mr Leach for ‘a breakdown in the relationship of trust and confidence which is a fundamental part of your employment contract’. ‘This is not a convenient label to stick on any situation’, according to Lord Justice Mummery.
On the facts here, however, the Court of Appeal held that the employment tribunal was entitled to find that the dismissal was for ‘some other substantial reason’ within s.98(1)(b) of the Employment Rights Act 1996, and fair.
As Mummery LJ said, ‘each case of fair or unfair dismissal depends almost entirely on its own particular facts’. Although not relevant to the decision, the Court noted that Mr Leach is now serving a 12 year prison sentence in Cambodia for child sex offences.
If you have a problem with an employee which falls outside the usual parameters, please ask how we can help you achieve your objectives.