Employee charged with a criminal offence was fairly dismissed


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The Employment Appeal Tribunal (EAT) has held in Lafferty v Nuffield Health that an employee charged with a criminal offence was fairly dismissed for some other substantial reason.  This was due to the potential reputational risk to his employer.

Mr Lafferty had worked as a hospital porter for 20 years and his duties included transporting anaesthetised patients to and from operating theatres.  He had an unblemished disciplinary record.   In February 2018 he was arrested and charged with assault with intention to rape.  He told his employer of the circumstances of his arrest, denied the charges and gave his own version of events.  An investigation took place which concluded that there was potential reputational risk to Nuffield Health (a registered not-for-profit charity) and advised that a meeting take place to discuss his on-going employment.  At this meeting the decision was taken to dismiss him because of the potential reputational damage to Nuffield (the Charity Commission had issued a recent reminder that charities needed to be concerned about the risk of reputational damage).  Mr Lafferty appealed, but the decision was upheld on the basis that the potential for damage was considerable if he was convicted, particularly as he was employed in a hospital where all the patients could be regarded as being vulnerable.  To continue to employ him might be regarded as a breach by Nuffield of its duty of care to patients.  However, Nuffield agreed that if the charges against Mr Lafferty were dropped, or he was acquitted, then he would be re-instated. 

Mr Lafferty claimed unfair dismissal and the tribunal dismissed his claim.  The EAT then dismissed the appeal.  Mr Lafferty 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 facts of the charge could have on Nuffield's reputation.  The EAT held that it would not be open to an employer to dismiss an employee for reputational reasons just because the employee had been charged with a criminal offence.  There would need to be some relationship between the matters alleged and the potential for damage to reputation.

Take note:  It's worth noting that the fairness of Mr Lafferty's dismissal had a great deal to do with his employer's concern about the risk to its reputation at a time when employers in the charity sector had been specifically told they needed to avoid reputational damage.  If this had not been the case then the decision may have been different given that Mr Lafferty had 20 years' service with a clean disciplinary record, and his prosecution had nothing to do with his work.

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