Case law update: What is an employer to do when a third party makes serious but unproven allegations against an employee?

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In this case, OFCOM was warned by the police that one of its employees was suspected by authorities of child sex abuse in Cambodia. It dismissed the employee, and had to establish whether the dismissal was fair. OFCOM sought to rely on the ‘catch all’ category of ‘SOSR’ - short hand for ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’.

Facts and findings

On the facts here, Mr L’s alleged conduct was neither proven nor admitted and bore no direct relationship to his employment at OFCOM.

OFCOM had been unable to get to the bottom of all the facts, but there was a feeling that Mr L was not being open or frank. OFCOM eventually dismissed Mr L for a ‘breakdown in relationship of trust and confidence’.

The Court of Appeal found that the ET had correctly concluded that Mr L had been fairly dismissed for SOSR. The ET had looked at all the circumstances of the case to establish if the reason was substantial enough to justify dismissal and had been entitled to conclude that it was. It had looked at the nature of OFCOM, Mr L’s role there, the nature of the allegations, the source of the allegations and the efforts OFCOM had made to obtain clarification and confirmation.

Interestingly, the EAT and the Court of Appeal made it clear that they disapproved of the ‘growing trend’ to invoke loss of trust and confidence as grounds for dismissal, remarking that it is ‘not a convenient label to stick on any situation’ where an employer feels let down by an employee or one of the other statutory fair reasons for dismissal is not available/appropriate.

Despite OFCOM arguing that there had been a breakdown of trust, the real reason for the dismissal was in fact the risk of reputational damage. On the facts, this was still a substantial enough reason to dismiss.

Comment

The Court of Appeal gave some useful guidance for an employer who finds itself in the situation where a third party has made allegations against one of its employees. It should:

  • assess as far as practicable the reality of what it has been told;
  • check the integrity of the informant and the safeguards within its internal processes concerning the accuracy of the information supplied; and
  • consider the likely effect of disclosure (and from the employee’s perspective whether there was cogent evidence of a pressing need for disclosure to the employer).

Read the judgment

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