Employment and Immigration Law Update – Dismissal following criminal charges

In this case, the Employment Appeal Tribunal (EAT) considered whether an employer had fairly dismissed an employee who had been charged with a criminal offence.

Lafferty v Nuffield Health UKEAT/0006/19

Facts

The claimant was employed as a co-ordinator and theatre porter, whose duties included moving anaesthetised patients to and from operating theatres. He had around 22 years of service with an unblemished disciplinary record.

In 2018, he was arrested and charged with assault with intention to rape. He was released on bail and informed his employer of the charge against him. He was suspended on full pay and, following an investigation, dismissed on grounds of the potential reputational damage to the employer. This decision was upheld by the employer on appeal, but the claimant was informed that he would be reinstated if he was acquitted of the criminal charges.

The claimant brought a claim for unfair dismissal, which was rejected by the employment tribunal. The dismissal was fair by reason of some other substantial reason (SOSR) on the grounds of a genuine risk of damage to the employer’s reputation. It had acted reasonably in deciding to dismiss rather than suspend the claimant, particularly in view of the employer’s charitable status. The claimant appealed to the EAT, by which time he had been acquitted of the criminal charges and reinstated in employment.

EAT decision

The claimant’s appeal was dismissed. The risk of reputational damage to the respondent in the event of a conviction was not trivial, and could provide justification for a dismissal even if criminal charges are not ultimately proven.

The respondent had conducted a fair investigation and the decision to dismiss was not a ‘knee jerk’ reaction. The claimant was not dismissed because his employer considered him guilty of the offence, but because of the potentially adverse effect on their reputation. The respondent was limited in the extent to which it could investigate an incident that had occurred outside the workplace and not in the course of employment. It was difficult to pinpoint what more the employer could do in terms of their investigation. Further, it had considered alternatives to dismissal and had acted reasonably in rejecting them.

Consequences

The EAT emphasised in its decision that it would not be open to an employer to dismiss an employee for reputational reasons just because the employee had been charged with a criminal offence. There needs to be a relationship between the nature of the criminal allegations and the potential reputational damage.

It is clear from the facts of this case that the respondent’s decision to dismiss followed a careful consideration of all the relevant circumstances, rather than being an automatic response to the criminal charges. It is also noteworthy that the EAT highlighted the respondent’s status as a charity, and took into account the additional scrutiny faced by charities in maintaining their reputation.

This article is from the February 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.