Very often, employers are faced with the dilemma of an employee being charged with a criminal offence, but denying any wrongdoing whatsoever. In the circumstances, what should an employer do? Suspend the employee until the Trial has taken place and then make a decision? Dismiss the employee immediately on the basis that they have been charged with a criminal offence? Do nothing unless the employee is convicted?
This issue has recently been considered, first by the Employment Tribunals and then by the Employment Appeals Tribunal, in the case of Lafferty v Nuffield Health.
The Facts
The background to the case is that Nuffield is a not for profit charity that operates hospitals throughout the country. In 1996 Mr. Lafferty commenced employment with Nuffield and had an unblemished record. In 2018 his role was a Co-Ordinator and Theatre Porter, whose duties included transferring anaesthetized patients to and from operating theatres. As stated, Mr. Lafferty had never been in any trouble with his employer for over twenty years.
On 17th February 2018 Mr. Lafferty was arrested and charged with assault, with intention to rape. He appeared in Court and was then released on bail. Quite properly, he informed his Hospital Director and Theatre Manager of his arrest and they were also informed of it by the Police.
On 22nd February 2018 Mr. Lafferty was suspended on full pay.
An investigatory meeting was held on 7th March 2018, when Mr. Lafferty denied any wrongdoing whatsoever and gave his version of events. He gave his employer a copy of his Bail Report and details of the Charges. The investigating officer concluded that the Charge against Mr. Lafferty might cause reputational damage to Nuffield and therefore a further meeting should take place.
On 9th March 2018 Mr. Lafferty met with the Hospital Manager, who made it very clear to him that he was not judging Mr. Lafferty’s guilt or innocence, but simply investigating the potential reputational damage to Nuffield. Given the serious nature of the Charges, the Hospital Manager concluded that it would be inappropriate for Mr. Lafferty to return to work until after his Trial. Accordingly, he had two options – to either suspend Mr. Lafferty on full pay or dismiss him.
The problem Mr. Lafferty had was that he could provide no information on when his Trial was likely to take place and therefore any period of suspension would have been open-ended. The Hospital Manager found that this would not be a proper use of charitable funds and therefore dismissed Mr. Lafferty on notice, on the ground of the reputational risk to Nuffield. The Hospital Manager did take into account Mr. Lafferty’s long and unblemished record with Nuffield, but felt this was outweighed by the risk of reputational damage.
On 6th April 2018 Mr. Lafferty’s appeal against the dismissal was heard by a Senior Manager. At the time, Mr. Lafferty remained on bail and could still provide no information as to when his final Trial was likely to take place. The Senior Manager upheld the decision to dismiss Mr. Lafferty, but very fairly assured Mr. Lafferty that if the Charges against him were discontinued, or if he was acquitted following a Trial, Mr. Lafferty would be reinstated by Nuffield on the same terms and conditions of employment and his continuity of employment would be preserved. However, he would not be paid for the period during which he had not been employed. In the circumstances, the Senior Manager arranged for Mr. Lafferty’s post to be held open and his work covered by temporary staff.
Mr. Lafferty then claimed unfair dismissal, but his claim was unsuccessful.
The Decision
The Employment Tribunals found that the reason for dismissal was that Nuffield had considered that if Mr. Lafferty was convicted of the Charges against him, there was a genuine risk of potential damage to its reputation, and these concerns had been sincerely held.
The Employment Judge also concluded that Nuffield had made every effort to seek clarification of the events that had taken place and when the Trial might be listed. Suspension had been considered as an alternative, but the potential of serious reputational damage was too great.
In the circumstances, it was found that Mr. Lafferty had been fairly dismissed.
Mr. Lafferty then appealed the decision to the Employment Appeals Tribunals, but his appeal was unsuccessful. In particular, the EAT found that Nuffield had conducted a fair investigation and there had been no kneejerk reaction to the situation. They also concluded that Nuffield had not taken the allegations at face value, but had done what they could to find out more about the Charges from Mr. Lafferty.
Very importantly, 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 have to be some link between the matters alleged and the potential for damage to reputation. The example they gave was if an employee, whose duties did not involve driving, was charged with a serious driving offence, it would be unlikely that their continued employment would have an adverse affect on the employer’s reputation.
The EAT also noted that Nuffield had considered alternatives to dismissal and had acted reasonably in rejecting them. Suspension on full pay was unreasonable, given the potential cost to Nuffield as a charity, particularly as the Trial had not been listed.
Nevertheless, the EAT did state at the outset that it had found this “quite a difficult case” especially as Mr. Lafferty had over twenty years’ excellent service and the offence had nothing whatsoever to do with his work.
The end of the tale is that Mr. Lafferty was acquitted at Trial and exonerated of all allegations. True to their word, Nuffield permitted him to return to work on the same terms and conditions as previously, but they did not pay him for the period between his dismissal and acquittal.
What this means for employers
The key message for employers is that they cannot automatically dismiss an employee simply because the employee has been charged with a criminal offence. A thorough investigation must be carried out and consideration must also be given to any alternatives, such as suspension on full pay. Also, the employee’s service and previous record should be taken fully into account, as must any link between the criminal allegation and the job role the employee carries out.
If you require guidance regarding how best to deal with an employee who has been charged with a criminal offence, or have queries in relation to any other aspect of employment or HR law, please contact Jonathan Moreland by email at jmm@swinburnemaddison.co.uk or Sharney Randhawa by email at shr@swinburnemaddison.co.uk or call us on 0191 3842441.
