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Can an employer dismiss an employee for potential damage to their reputation when the behaviour giving rise to concern is unconnected to the work job AND unproven?

Firstly consider this, imprisonment may not amount to sufficient grounds and yet in a recent case Leach v OFCOM we see that “the risk” of the employees alleged and unproven criminal conduct can give grounds for dismissal.

In this case it was not established that the employee was a danger to children, in fact his dismissal would not reduce the risk of his offending (opportunities for child abuse were not afforded by the employee’s job) so the case was concerned solely with saving the employer’s reputation.’

In this case, OFCOM were  “jealous of its public reputation” and given the risk of harm to their reputation should the employees conduct be ‘further’ disclosed in the media, it was found to be legitimate for the employer to dismiss.

To most, this sounds like an injustice, but an injustice by whom? The EAT found that, ‘if an injustice was done, it is not by the employer, but by those who have falsely accused him and/or given credence to those accusations. 

Note: Mutual trust and confidence is at the heart of all employee employer relationships and in deciding that the reason for dismissal was substantial and sufficient to justify the dismissal, an ET has to examine all relevant circumstances. In this case the employer (OFCOM) had undertaken an investigation and made substantial enquires before the dismissal, it was no knee jerk reaction.

Citation: [2012] EWCA Civ 959