Pending criminal changes and dismissal

Lafferty v Nuffield Health

An employee charged with a criminal offence was fairly dismissed due to the risk to the employer’s reputation.

Background

Mr Lafferty had worked for Nuffield Health (NH), a not-for-profit charity, as a porter for more than 20 years and had an unblemished service record. 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 NH about the arrest and charge.

Mr Lafferty was suspended on full pay pending an investigation. He gave NH a copy of the bail report and the police report. NH decided that the risk to its reputation of continuing to employ him where he had access to vulnerable patients was too great. It took into account that other charities had recently had problems regarding inappropriate behaviour which had impacted on their reputation. Mr Lafferty was dismissed with notice. He appealed, arguing that it was unfair to dismiss him given that he had not been convicted of any offence. NH considered that the potential for reputational damage was considerable if Mr Lafferty were to be found guilty, particularly as the area in which he worked was where patients were at their most vulnerable. 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, albeit that he would not receive back pay.

He brought tribunal proceedings for unfair dismissal, but his claim was rejected. He appealed to the EAT on the grounds that the tribunal had erred (a) in failing to consider whether NH had undertaken as much investigation into the matter as was reasonable, and (b) in concluding that NH had acted reasonably in treating the risk of reputational damage as a sufficient reason to dismiss.

EAT decision

The appeal was dismissed.

The dismissal – for some other substantial reason – was within the band of reasonable responses open to NH. The EAT noted that a risk to reputational damage can provide sufficient justification for dismissal, notwithstanding the fact that criminal charges against an employee are not proved. Whether or not that risk justifies a dismissal in a particular case will depend on the facts. NH had adequately explored the question of risk to reputation (a belief that was genuinely held) and had drawn a direct link between the nature of the charges against Mr Lafferty and the risk to reputation which arose from the potential risk to the vulnerable patients at its premises.

NH had conducted such investigation as was reasonable in the circumstances. It had found out more about the charges from Mr Lafferty himself, sought the bail report and the police report, and took into account the fact that there had been a decision to proceed with a prosecution. Mr Lafferty was not dismissed because of a belief that he was guilty of the offence he was charged with, but because of the adverse effect that the charge could have on the employer’s reputation.  The EAT noted that it was difficult to pinpoint what more could have been done in this case.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0006_19_1509.html

Comment

This decision may seem harsh for Mr Lafferty given his long, unblemished service, the fact that he’d not been convicted of any crime and was in fact acquitted in his criminal trial after the original tribunal hearing and before his appeal to the EAT. Indeed, the EAT commented that it had found it ‘quite a difficult case’.

Some learning points from this decision include:

  • The nature of the role where criminal charges are pending is critical – here Mr Lafferty’s role afforded him the opportunity to commit the act for which he was charged and arguably there was therefore a higher risk of reputational damage than with an offence which did not impact on an individual’s role. The EAT gave an example of a criminal charge relating to a serious driving offence and the employee working in a role that did not involve any driving duties – here it would be unlikely that continuing to employ that employee would have any adverse effect on reputation.
  • The risk of reputational damage here was to an organisation in the charitable sector, which was under scrutiny at the time as a result of recent conduct exposed in that sector in relation to employees engaging in sexual offences.
  • Consider alternatives to dismissal in such a situation – here the employer had done so. It had considered suspension but, given that this would involve full pay and would be open-ended as Mr Lafferty couldn’t provide any timescales as to when his criminal trial would take place, it concluded that this would not be a reasonable expenditure given its charitable status. The remaining option was dismissal.
  • Even where there the CPS has decided to prosecute an individual, an employer may not be acting reasonably it if simply takes the fact of that decision at face value without at least some inquiry as to the circumstances. Here the employer did seek further information from Mr Lafferty.