Lafferty v Nuffield Health

An unproven criminal charge may amount to some other substantial reason for dismissal where continued employment presents a genuine and non-trivial reputational risk. The assessment is fact-sensitive. There must be a rational connection between the allegation, the employee’s duties and the potential reputational harm.

Under section 98, an employer need not investigate alleged criminal conduct as though determining guilt where dismissal is based on reputational risk rather than belief in guilt. It must nevertheless make reasonable enquiries and consider the risk and alternatives to dismissal. A tribunal may uphold dismissal where the employer reasonably concludes that the risk to vulnerable persons and public confidence outweighs an indefinite paid suspension.

The claimant, a long-serving hospital porter whose work included transporting anaesthetised patients, was arrested and charged with assault to injury with intent to rape. The respondent suspended him, obtained information from him and the police material, and dismissed him because of the potential reputational consequences of continuing to employ him around vulnerable patients while the criminal proceedings remained unresolved.

The Glasgow Employment Tribunal dismissed his unfair-dismissal claim and later refused reconsideration. After the Tribunal hearing, the claimant was acquitted and reinstated, but without pay for the intervening period. He appealed, contending that the respondent’s investigation was inadequate and that reputational risk could not reasonably justify dismissal on the facts.

1. Appeal dismissed. The Tribunal was entitled to find that the respondent had established a potentially fair reason under Employment Rights Act 1996, section 98(1)(b). A risk of reputational damage following an unproven criminal charge can be a substantial reason, although its sufficiency depends on the facts of the individual case.

2. The relevant reason was not an anticipated conviction itself. It was the risk that, if a conviction followed, the respondent would be criticised for having continued to expose vulnerable hospital patients to an employee charged with a closely connected serious offence. The Tribunal permissibly found that this risk was genuinely held, non-trivial and assessed by experienced managers.

3. The Tribunal was also entitled to find a reasonable investigation for the purposes of section 98(4). The respondent was not dismissing because it had concluded that the claimant was guilty. It was therefore not required to conduct the full investigation that might be expected if dismissal rested on alleged misconduct. It had sought the claimant’s account, the bail report and police report, and considered the fact that a prosecution would proceed. It did not react mechanically to the charge.

4. An employer cannot dismiss merely because an employee has been charged. There must be a relationship between the alleged conduct and the asserted reputational risk. That connection was present because the claimant’s role gave him access to highly vulnerable patients and the respondent was a charity subject to particular public scrutiny.

5. The respondent had considered alternatives. Continued work was not a reasonable option. Indefinite suspension on pay was reasonably rejected in light of the uncertain trial date, the respondent’s charitable status and the Tribunal’s finding that the resulting expenditure was not a reasonable use of charitable funds. Dismissal fell within the band of reasonable responses. No error of law justified interference.

• Employment Appeal Tribunal: dismissed the claimant’s appeal against the dismissal of his unfair-dismissal claim.
• Glasgow Employment Tribunal: dismissed the unfair-dismissal claim; reconsideration was refused on 18 December 2018.