The Employment Appeal Tribunal has upheld a decision that an employee who had been charged with a criminal offence was fairly dismissed in light of the potential reputational risk to his employer.

The Claimant in this case was a theatre porter who worked for a private not for profit hospital provider, Nuffield Health (Nuffield). His role involved moving anaesthetised patients around the hospital. He had long service of over 20 years and an unblemished disciplinary record.

In February 2018 he was arrested and charged with assault with intention to rape. Following his release on bail, the Claimant informed Nuffield about what had happened. Separately, the police also contacted Nuffield about the arrest. The Claimant was suspended him on full pay whilst Nuffield commenced an investigation. This considered the Claimant’s bail report, a police report and the fact that the Claimant denied the charges. Overall, the investigating officer felt it wasn’t possible to determine whether the Claimant was guilty or not of gross misconduct but considered that if the Claimant was found guilty of the offence then this could cause significant reputational damage to Nuffield.

At a further meeting with the employer, the possibility of his dismissal for ‘some other substantial ground’ under section 98(1)(b) Employment Rights Act 1996 was therefore considered by a hospital manager, L. L felt it was not possible for the Claimant to remain at work whilst the police investigation and any trial was ongoing, so the options were to either suspend the Claimant on full pay or dismiss him. It wasn’t known at that time when any trial would take place and therefore how long any period of suspension might be. The Claimant’s unblemished disciplinary record was taken into account, however L felt that this was outweighed by the potential reputational damage which would be caused to the organisation. L was also mindful of recent guidance from the Charity Commission that charities need to be mindful of the risk of reputational damage.

The Claimant appealed this decision. At the time he was still on bail on and no date had been set for his trial. The appeal officer, M, reviewed the situation and upheld the decision to dismiss. M found that there was potential for reputational damage to Nuffield when the case came to court and received publicity. There was also further reputational risk in the event that the Claimant was convicted. The patients cared for in the hospital were vulnerable, and often at their most vulnerable when in contact with the Claimant. However, M did consider there would be a potential injustice to the Claimant if he was later acquitted. It was agreed that, should this occur, the Claimant would be re-instated on the same terms and conditions with his continuity of service preserved, though he would not receive any pay for the period in which he had been unemployed. In the meantime, the Claimant’s role would be kept open and covered by temporary staff.

The Claimant brought a claim for unfair dismissal in the Employment Tribunal, which was dismissed. The Judge found the reason for the dismissal was the belief that there was a genuine risk to Nuffield’s reputation if the Claimant was convicted. This belief was a sincerely held view. The Claimant had sought information about the charges and when a trial might be held. It had also considered alternatives such as suspension. As such, its decision to terminate the Claimant’s employment was within the band of reasonable responses and was fair.

Following this hearing, the Claimant was in fact acquitted of the criminal charges and, in line with the agreement with Nuffield, returned to work at his previous role. However, this did not entirely resolve the dispute between the parties and the Claimant appealed the findings of the Tribunal.

The Employment Appeal Tribunal upheld the decision of the Employment Tribunal that the dismissal was fair. The Judge found that it was not unreasonable for Nuffield to be concerned with the reputational damage in the event the Claimant was convicted the extent. The incident had not taken place at work or in the course of work so Nuffield was not in a position to fully investigate the allegations itself. However, it had not simply taken the allegations at face value but had considered the information available. Again, alternatives to dismissal were considered, but it was reasonable not to opt for open-ended suspension given the significant cost to Nuffield.

Comment: This case highlights that there will be some circumstances in which it will be reasonable to dismiss an employee charged with a criminal offence in to protect their employer’s reputation. However, such cases should always be approached with caution. An important factor which drove the employer’s concerns about reputation in this case was its charitable status, which will not be applicable to many employers. Another key factor was the inability of the employer to fully investigate the allegations; again, this unlikely to be applicable in situations where the alleged criminal conduct took place at work or a work event.

LINK: https://assets.publishing.service.gov.uk/media/5e4403c8e5274a6d38dd7adb/Mr_Allan_Lafferty_v_Nuffield_Health__UKEATS_0006_19_SS.pdf

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