There are 5 potentially fair reasons for dismissing an employee with more than 2 years’ service:
- Conduct
- Capability
- Redundancy
- Statutory illegality
- Some other substantial reason (“SOSR”)
Once an employer has demonstrated a potentially fair reason it then must satisfy any tribunal that it acted reasonably in treating that reason as sufficient to justify dismissal. When it comes to criminal charges and/or convictions employers can be concerned about continued employment and the impact this could have on their ongoing reputation. In the case of Lafferty v Nuffield Health the Employment Appeal Tribunal (“EAT”) had to decide whether the employer had acted fairly in dismissing Mr Lafferty for SOSR as a result of him being charged with a criminal offence and the potential risk on their reputation as a result.
Facts of the case
Mr Lafferty was employed by Nuffield as a coordinator and theatre porter. He commenced employment in 1996 and had an unblemished disciplinary record. In February 2018 he was arrested and charged with assault with intention to rape. He was subsequently suspended on full pay. An investigation meeting took place and in the meeting Mr Lafferty denied the charges. The investigating officer was concerned that the charge could damage Nuffield’s reputation if he were convicted so Mr Lafferty was invited to a disciplinary meeting.
The disciplining officer did not consider it appropriate for Mr Lafferty to return to work until the trial had finished and therefore he felt he could either (i) suspend Mr Lafferty or (ii) dismiss him. At this stage there was no indication of when the trial would take place and the disciplining officer was concerned that any suspension could therefore continue over a long period of time. In view of this and given serious concerns about the reputational damage that could be inflicted to Nuffield if they continued to employ someone charged with such an offence, the decision was taken to dismiss Mr Lafferty.
Mr Lafferty appealed. In considering his appeal Nuffield took in to account the vulnerability of the patients Mr Lafferty dealt with and its duty to protect and care for its patients. With this in mind the original decision to dismiss was upheld. Nuffield did however recognise the potential injustice to Mr Lafferty if he was subsequently acquitted of the charges and therefore they confirmed they would reinstate him on the same terms, with his continuity preserved albeit he would not be paid for the period between his dismissal and potential reinstatement. Mr Lafferty issued proceedings for unfair dismissal.
Employment Tribunal decision
The Tribunal rejected Mr Lafferty’s claim. They were satisfied that Nuffield had met the 2 stage test set out above:
- Fair reason – the Tribunal accepted that Nuffield’s concerns about the risk of reputational damage if Mr Lafferty were convicted of the offences were genuinely held and as such they had demonstrated “some other substantial reason” for dismissal.
- Reasonable response – the Tribunal was also satisfied that Nuffield had acting reasonably in treating that reason as sufficient to justify dismissing Mr Lafferty. They had thought about suspending him but considered the risk of damage to their reputation too great. They were also mindful of their charitable status and a recent reminder from the charity commission that charities should be concerned about the risks of reputational damage.
Following the Tribunal hearing Mr Lafferty was actually acquitted of the charges against him and he returned to work with Nuffield in accordance with the assurance given in the appeal hearing. Mr Lafferty appealed the Tribunal’s decision to the EAT on the basis he was not satisfied that Nuffield had undertaken a detailed enough investigation and that the risk of damage to Nuffield’s reputation was not a sufficient reason to dismiss.
Decision of the EAT
The EAT dismissed Mr Lafferty’s appeal. In doing so they made the point that the risk of reputational damage can be sufficient justification for dismissal even where criminal charges are subsequently not proven. Here Nuffield had been worried about their reputation in the event Mr Lafferty was convicted rather than the fact of his charge which the EAT considered to be a reasonable position to take. They were also satisfied that Nuffield had conducted a reasonable investigation and that they had taken steps to obtain more information on the charges and had reviewed both the police and bail reports.
Comment
This case confirms that it is possible for employers to fairly dismiss employees, even those like Mr Lafferty with 20 years unblemished service, where they are convicted of a criminal offence that gives rise to a real risk of reputational damage. The key here is that there must be some link between the charge and/or conviction and the damage to an employer’s reputation. The fact someone has been charged with an offence that an employer may find distasteful or immoral does not of itself give employers the green light to dismiss. Any allegations should be investigated and not simply accepted at face value and individuals should be given the opportunity to respond and alternatives to dismissal should be considered.
