Can an employer fairly dismiss an employee on the basis of concern for its reputation when the employee is charged with, but not convicted of, a criminal offence?
Yes, held the Employment Appeal Tribunal in the recent case of Lafferty v Nuffield Health, upholding the Tribunal’s finding that the dismissal for ‘some other substantial reason’ was fair.
Background
Mr Lafferty was a hospital porter with a long, unblemished service record at Nuffield, a registered not-for-profit charity. His duties included transporting anaesthetised patients.
Whilst he was employed by Nuffield, he was charged with a serious sexual offence unconnected with work, which he denied. Mr Lafferty and the police informed the employer and he was dismissed on the basis that there was a risk to his employer’s reputation from continuing to employ him when he had access to vulnerable patients, should he be convicted. Furthermore, continuing to employ a person facing such charges may have been regarded as a breach of the hospital’s duty of care to patients.
Unfair Dismissal
Nuffield dismissed Mr Lafferty on notice, given the potential for serious reputational damage should he be convicted.
Mr Lafferty claimed unfair dismissal at an Employment Tribunal, however his claim was dismissed on the basis that:
- The reason for dismissal fell under ‘some other substantial reason’, a potentially fair reason for dismissal, and the employer was able to show there was a genuine risk of potential damage to its reputation
- The dismissal was fair and the employer’s actions in dismissing the employee fell within the band of reasonable responses open to a reasonable employer
Advice for Employers
An employee with over two years’ service has the right not to be unfairly dismissed. In order to dismiss an employee fairly, the employer must show there is a potentially fair reason and must act reasonably in treating that reason as a sufficient reason for dismissal. The potentially fair reasons for dismissal include incapability, misconduct, redundancy, statutory illegality or ‘some other substantial reason’. The employer must also follow a correct process when seeking to dismiss.
When considering the law on dismissals involving unproven allegations of criminal conduct, each case will turn on its own facts.
An employer faced with information about alleged criminal conduct by an employee should consider the following before deciding what action to take:
- The reliability of information about the employee’s alleged conduct
- Undertake independent enquiries rather than simply taking the information at face value
- Whether the employee’s job affords the employee the opportunity to commit the kind of act they have been charged with
- Whether there is some relationship between the matters alleged and a risk of reputational damage for the employer
- Whether alternatives to dismissal can be considered.
For further information on dismissal, please contact our Employment Team on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.