Information lawyers are regularly asked to advise on the question of whether the sharing of information about an individual with that individual’s employer is lawful in all the circumstances. Another issue which commonly arises for information lawyers is whether the employer’s use of that information is itself lawful. Typically, answering this latter question requires an understanding of how information law and employment law intersect. The judgment handed down by the Court of Appeal last week in the case of Leach v Office of Communications [2012] EWCA Civ 959 perfectly illustrates this point.

In Leach, the met police disclosed to Mr Leach’s employer, Ofcom, information relating to certain child abuse offences he had allegedly committed in Cambodia and which led to his arrest in that country. The information initially provided by the police suggested that Mr Leach posed a continuing risk to children and that there was a resulting risk of negative media exposure for Ofcom. Thereafter, the met police agreed to make formal ‘limited disclosure’ to Ofcom pursuant to the Multi-Agency Public Protection Arrangements created under the Criminal Justice and Courts Services Act 2000. The information provided by the police was described as ‘the tip of the iceberg’. Thereafter, Mr Leach was summarily dismissed by Ofcom on the ground that, in view of the information received from the police, his continued employment with Ofcom represented an unacceptable reputational risk for the organisation. Mr Leach complained that his dismissal was both wrongful and unfair under s. 98 of the Employment Rights Act 1996. The nub of his complaint was that it was wrongful and otherwise unfair for Ofcom to have relied on the information provided by the police as a basis for dismissing him, particularly as Ofcom had not conducted its own independent investigation of the child abuse allegations.

The Court of Appeal held that Mr Leach’s summary dismissal had not been unfair or wrongful. In reaching this conclusion, the Court took into account that the information disclosed to Ofcom had been disclosed under an official disclosure regime and that, subject to certain safeguards, an employer must be entitled to treat that information as reliable. The Court also held that Mr Leach’s dismissal did not breach his fair trial rights under Article 6 ECHR and did not otherwise amount to an unlawful interference with his right to privacy. Mummery LJ gave the leading judgment. The following extracts from his the judgment are particularly noteworthy:

‘… this case shows the need for an employer, to whom a third party discloses information or makes allegations, to assess for itself, as far as 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’ (§6)

 

‘ … 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’ (§10)

Anya Proops