When an employee has been charged with, but not convicted of a criminal offence, can an employer fairly dismiss the employee due to concerns for its reputation?

Yes, said the Employment Appeal Tribunal (EAT) in a recent case which will be of particular interest to schools and multi academy trusts.

In Lafferty v Nuffield Health, the Claimant, Mr Lafferty, was a hospital porter who had 20 years’ unblemished service. His duties included transporting anaesthetised patients. He was arrested and charged with assault with intention to rape, which he denied. He was released on bail, with no trial date set. He and the police told his employer about the arrest and charge.

Nuffield Health suspended Mr Lafferty on full pay pending an investigation. It then decided that the risk to its reputation of continuing to employ him where he had access to vulnerable patients was too great and so he was dismissed. He appealed, arguing that it was unfair to dismiss him given that he had not been convicted of any offence. His appeal was rejected but he was told that, should he be acquitted or the charges against him dropped, he would be reinstated on the same terms and conditions, although that he would not receive back pay.

He brought a claim for unfair dismissal, but his claim was rejected. He appealed to the EAT and his appeal was dismissed.

The EAT reviewed the law on dismissals involving unproven allegations of criminal conduct, and properly noted that each case will turn on its own facts. It confirmed that an employer faced with information about alleged criminal conduct by an employee should not simply take that information at face value, but should make some inquiry of its own into the circumstances. It stated that in this case, the claimant’s job afforded him the opportunity to commit the kind of act that he was charged with, and so there was a risk of reputational damage for the respondent as a charity, in the light of recent scandals in that sector. The tribunal’s finding that the dismissal for some other substantial reason was fair.

Whilst this decision may seem harsh to some given Mr Lafferty’s length of service and the fact that he had not been convicted of any crime (and was in fact acquitted in his trial which took place before his appeal to the EAT), given the nature of Mr Lafferty’s duties and the crime he was accused of, whilst noting that this was a difficult case, the Tribunal was persuaded that there was a high risk of reputational damage.

Cases like this, where an employee is dismissed before the conclusion of a criminal investigation are always the cause of headaches for employers. Before any decision is made to dismiss an employee who has been charged with a criminal offence, employers need to carefully consider all of the circumstances which will include consideration of the charges in question, the role that the employee does and the actual risks posed. At the very least this will require some enquiry with the employee in question: taking charges at face value, jumping to conclusion and making knee jerk decisions is a risky strategy.

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