Dismissing an employee charged with a crime but not tried in court

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

When an employee has been charged with a criminal offence and the offence has occurred outside the workplace, can be very difficult for an employer to manage.  Where disciplinary proceedings involve criminal allegations, internal investigation is required.  Dismissing an employee who is subsequently acquitted may damage that individual’s reputation making it very difficult for them to obtain similar employment in the future.

However, the difficulty for employers is that the fact that there is a 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 an employment dismissal will not necessarily be determined by ultimate guilt or innocence.

However, when the employer’s reputation is at risk as a result 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 held because of the potential reputational damage the charge against the employee might cause to the business.  The disciplinary hearing looked at the potential damage to the business reputation an did not focus on the employee’s guilt or innocence.  Mitigating circumstances were taken into account, alternatives were considered (including suspension on full pay until the trial took place) and the employee was dismissed with notice because of the risk of reputational damage to the business.  An appeal was unsuccessful, although it was confirmed that the position would be held open and if he was acquitted he would be reinstated (and in fact he was subsequently reinstated by the employer).

The employment tribunal found his dismissal to be fair.  The EAT dismissed an appeal, finding that the decision to dismiss fell within the band of reasonable responses.  There was genuine 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.

The reason that this outcome occurred is that there was no effort on the part of the employer to conclude on the charges – the focus was simply on the reputational damage. This was the reason for dismissal from the outset.  Demonstrating the effect on the business and the work done to consider alternatives made it much easier to demonstrate the fairness of the procedure at Tribunal.  This case was always about the business trying its best to balance the risk of damage with fairness to their employee.