The fairness of dismissal following criminal charges

20th March 2020

The fairness of dismissal following criminal charges

The Employment Appeal Tribunal (EAT) has considered whether dismissal of an employee who has been charged with a criminal offence is fair.

In Lafferty v Nuffield Health, the employee had worked for a charity as a Porter for 20 years. He had a clean disciplinary record. One of his duties was to transport patients who had been anaesthetised. He was charged with a serious sexual offence which had allegedly occurred outside of work, and released on bail. He denied the allegation. He was suspended on full pay while an investigation was carried out by the charity. The charity decided that the risk to its reputation, in the event of a finding that he was guilty, was not acceptable taking into account the access he had to vulnerable patients. They dismissed him with notice.

The employment tribunal at first instance, found that his dismissal was fair for ‘some other substantial reason’. The EAT agreed. However it said that each case needed to be determined on its facts. In some cases, the risk of reputational damage may be such that an employer will be justified in dismissing an employee, before they have been convicted of a crime. It was relevant, here, that the charity operated in a sector which had been under significant scrutiny as a consequence of employees committing sexual offences. In this case, the charity had carried out a reasonable investigation before they made the decision to dismiss. They had requested more detail about the charges from both the employee and the police. The charity had also considered whether to suspend the employee on full pay, pending the outcome of the criminal process. However, as no trial date had been set, they decided the potential cost to the charity would be unreasonable. The EAT held that the employee’s dismissal was within the range of reasonable responses.

Note that the employee was dismissed because of potential reputational damage. He wasn’t dismissed because the charity thought he was guilty of the alleged offence. Of significance here was the fact that the employee’s job provided him with the opportunity to commit a sexual offence, but of course that won’t always be the case. The EAT gave the example of an employee charged with a driving offence but employed in a role which did not involve any driving. In such a case the employer would be unlikely to suffer reputational damage by continuing to employ the employee.

It’s important to carry out a reasonable investigation before making any decision to dismiss. Where an employee has been charged with a crime, additional information should be sought. It would be unwise to act solely on the fact that a decision has been made to prosecute the employee. Employers must also consider alternatives to dismissal when considering their decision.

For advice around dismissal contact Kimberley Clayton on 01473 298168 or email [email protected].

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