The EAT has ruled in Lafferty v Nuffield Health that an employer can fairly dismiss an employee who has been charged with, but not yet convicted of a criminal offence. On the facts the continued employment of the employee posed enough of a risk to the employer’s reputation to make the dismissal fair.
Mr Lafferty was a co-ordinator and theatre porter for Nuffield Health hospital whose main duty was moving anaesthetised patients to and from operating theatres. He had worked at Nuffield for over 20 years and had an unblemished disciplinary record.
In February 2018 he was arrested and charged with assault with intention to rape, unconnected with work. Mr Lafferty and the police informed his employer about the charge against him and Nuffield suspended Mr Lafferty on full pay whilst they carried out an investigatory meeting. They were concerned of the potential reputational damage to the hospital following similar recent scandals in the charity sector at the time.
The hospital manager dismissed Mr Lafferty, deciding that his long, unblemished service with the hospital was outweighed by the risk to its reputation from continuing to employ Mr Lafferty when he had access to vulnerable patients.
The EAT reviewed the law on dismissals involving unproven allegations of criminal conduct and noted each case will turn on its owns facts. They stated it was important that an employer does not just take the criminal charge at face value but fully investigates the surrounding circumstances. They upheld the ET’s decision that the dismissal for some other substantial reason was fair in this case - namely the potential risk to the employer’s reputation.
Hannah Ball comments:
"Cases where an employee has been charged with a criminal offence but not yet convicted are notoriously difficult for employers to deal with as they require a careful balance of the potential damage to the organisation’s reputation against the rights of the individual.
It is important to investigate any allegations before making any decisions but this can be difficult where the alleged conduct is outside of the workplace and where there is already a police investigation."
If you need advice on such issues please do not hesitate to get in touch with a member of the team.
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