Wed 08 Apr 2020

Guilty until proven innocent

The EAT has held that the dismissal of an employee charged with, but not yet tried or convicted of a crime, was fair.

The fact that an employee has been charged with a criminal offence, particularly where that offence has occurred outside the workplace can be very difficult for an employer to manage.  Where disciplinary proceedings involve criminal allegations careful investigation is required - dismissing an employee who is subsequently acquitted may irreparably damage that individual's reputation making it very difficult for them to obtain similar employment in the future.  However, the very fact that there is a concurrent criminal investigation going on may mean an employee is reluctant to (or has been advised not to) answer his employer's questions.  Criminal charges can take a considerable period of time to come to Court and an employer may not want to have an employee suspended on full pay for a prolonged period.  In addition, the fairness or otherwise of a dismissal will not necessarily be determined by ultimate guilt or innocence.

However, when the employer's reputation is at risk, in consequence of the employee being charged,  the reason for the dismissal will be "some other substantial reason", not misconduct, and different factors are considered.  In Lafferty v Nuffield Health Mr Lafferty was a hospital porter who was charged with assault to injury with intention to rape.  His role involved transporting anaesthetised patients to and from operating theatres.  He had twenty years' service and an unblemished disciplinary record.  Nuffield Health, as a registered not-for-profit charity, was conscious of the scrutiny charities, in particular, can come under in these circumstances. 

Following an investigation a disciplinary hearing was convened on the basis of concerns about the reputational damage the charge against Mr Lafferty might cause to the business.  The disciplinary hearing itself also focussed on the potential damage to the businesses reputation and not Mr Lafferty's guilt or innocence.  Mitigating circumstances were taken into account, alternatives were considered (that being a suspension on full pay until the trial took place) and Mr Lafferty was dismissed with notice because of the risk of reputational damage to the business.  An appeal was unsuccessful, although it was confirmed to Mr Lafferty that his position would be held open and if he was acquitted he would be reinstated (and it is worth noting that he was subsequently reinstated by the employer).

The employment tribunal found his dismissal to be fair.  The EAT dismissed an appeal, finding the decision to dismiss did fall within the band of reasonable responses.  There was real concern on the part of the employer for their reputation if they continued to employ Mr Lafferty, given the nature of the charges against him, when he had access to vulnerable patients and the investigation and disciplinary proceedings had been reasonable in the circumstances. 

The EAT described this as "quite a difficult case".  Given the dismissal was of a long serving employee with a clean disciplinary record for a reputational damage that would only crystallise if he was convicted, that is perhaps not a surprise.  Mr Lafferty had in fact been reinstated by the time of the EAT hearing.  The effect of the procedure followed here should not be underestimated.  The focus on reputational damage as the reason for dismissal from the outset, the involvement of managers who had knowledge of the consequences of failing to act in other charities and the full consideration of alternatives will have made it much easier to demonstrate the fairness of the procedure at Tribunal.  Although unusual, the fact that reinstatement had been offered and then acted upon would likely have been helpful in persuading the tribunal and the EAT that the business was trying its best to balance the  risk of damage to the organisation with fairness to their employee. 


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