EAT holds that an employer who was concerned about their reputation fairly dismissed an employee charged with a criminal offence - Lafferty v Nuffield Health

Employment Appeals Tribunal (‘EAT’) has considered the ability of an employer to dismiss an employee fairly to protect their reputation following being charged of a criminal offence.

In order to fairly dismiss an employee, an employer must rely on one of the five potentially fair reasons for dismissal contained in section 98 of the Employment Rights Act. These include capability, conduct, redundancy or breach of statutory duty or restriction or some other substantial reason. An employer must further follow a fair procedure before a decision is made. If an employee has committed a criminal offence, there is not an automatic right to dismiss and the employer must identify a fair reason and act reasonably in dismissing.

The Claimant worked for the Respondent for over 20 years as a hospital porter and his duties included moving anaesthetised patients to and from operating theatres. He was charged with assault with an intention to rape, this conviction was unconnected to his work.

The Respondent suspended the Claimant on full pay whilst an investigation was being conducted. Following the investigation, it decided to dismiss the Claimant because of potential reputational damage. It considered that other charities that had had recent problems regarding inappropriate behaviour and concluded that it was not appropriate for someone facing charges of sexual assault to work with vulnerable people.

The Claimant claimed unfair dismissal and the employment tribunal (‘ET’) dismissed his claim and the Claimant appealed, arguing the ET failed to consider whether the Respondent had undertaken a reasonable investigation and whether the Respondent acted reasonably in treating reputational damage as a reason to dismiss.

The EAT upheld the decision of the ET and dismissed the appeal.

The EAT noted that the fact the ET’s decision referred to the effect on the Respondent’s reputation, did not undermine its finding that the dismissal fell within one of the potentially fair reasons. Case law has established that the risk to reputational damage can justify dismissal, notwithstanding the fact that the Claimant had not been convicted, this determination is however dependent on the particular facts of the case. The ET was correct to consider that the Respondent had adequately explored the question of risk to reputation as the Respondent had drawn a direct link between the nature of the charges and the risk to their reputation as a result of his work with vulnerable patients.

It further held that the investigation conducted by the Respondent was sufficient and noted that the Claimant had not been dismissed because of a belief that he was guilty of the offence with which he had been charged but because of the adverse effect the fact of the charge could have on Nuffield's reputation. In this circumstance, the investigation is justifiably more limited.

It was highlighted by the EAT that an employer may not dismiss an employee and rely on reputational damage, just because they have committed a criminal offence, as there needs to be a link between the actions of the employee and this potential damage. In this case, the Respondent had considered alternatives and concluded that due to the nature of the charges, continuing employment was not an option.

Overall, the tribunal had been entitled to find that the decision to dismiss did not fall outside the reasonable band of responses open to a reasonable employer.

At the outset, the EAT explained that this is ‘quite a difficult case’, in light of the Claimant’s unblemished 20 years’ service, the fact he had not been convicted at the time of dismissal and the prosecution was for a crime unrelated to his work. It is also important to remember that at the time of events, many charities were under scrutiny for inappropriate behaviour subsequently impacting their reputation.

The case is however a reminder of the circumstances in which an employer can dismiss an employee following a criminal offence or other matters arising outside of the workplace. Relevant factors that may be taken into account include, any reputational risks, the role of the individual and who may be impacted by their conduct. Crucially, employers must identify a fair reason and follow a fair procedure before taking the decision to dismiss.