The mere fact that an employee is arrested or charged of a criminal act will not in itself constitute an automatic fair right to dismiss. In order to fairly dismiss an employee an employer should have a fair reason under s98 Employment Rights Act and follow a fair procedure before a decision is made. These reasons are:
- Conduct;
- Capability;
- Redundancy;
- Contravention of a statutory enactment; and
- ‘Some other substantial reason’.
It is quite rare that an employee will commit a crime in the workplace, but situations do arise where conduct outside of their work will have a direct impact on their role and/or the organisation that they work for. In those situations, an employer wishing to dismiss will have to identify the fair reason upon which they rely.
Lafferty v Nuffield Health
In the case of Lafferty v Nuffield Health, the Employment Appeal Tribunal (EAT) upheld a tribunal’s decision that an employee was fairly dismissed for ‘some other substantial reason’ given the potential reputational risk to his employer, a registered not-for-profit charity, when he was charged with a criminal offence.
Mr Lafferty was a hospital theatre porter with 20 years’ unblemished service who was charged with assault with intent to rape (which had no connection to his work).
Nuffield Health felt it could not leave Mr Lafferty in his role moving anaesthetised patients in and out of operating theatres as it felt there would be a genuine risk to its reputation should Mr Lafferty be convicted. Objectively, one can suppose that patients and/or relatives may have valid concerns about being alone and unconscious with someone convicted of sexual assault.
The tribunal in the case heard that Nuffield Health had considered whether paid suspension could be implemented but given the uncertainty surrounding how long the case would take to get to Court it was justified in its concerns over the use of the charity’s funds. The tribunal found that the charity did have legitimate concerns about the impact on its reputation of the case and Mr Lafferty’s association with the organisation coming to the public fore. The decision to dismiss, given the potential for serious reputational damage if he was convicted, was fair and the EAT agreed with the tribunal’s original decision.
It is worth noting that Mr Lafferty was dismissed with notice as he was not guilty of any misconduct or gross misconduct in connection with his employment. Had the Nuffield relied on gross misconduct rather than ‘some other substantial reason’, the case would probably gone in Mr Lafferty’s favour.
Comment
If an employer is considering terminating an employee’s employment because of matters relating to conduct or facts outside of work, the impact on the role being undertaken and any actual reputational risk in the context of the event itself should be considered very carefully. As always, the situation should be put to the employee in the context of a fair procedure and the employee should be given the opportunity to respond to the employer’s concerns.
How Nelsons can help
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