The claimant was employed as a porter for more than twenty years by the respondent, which is registered as a not-for-profit charity operating a number of hospitals throughout the United Kingdom. The claimant worked in its hospital in Glasgow.   The claimant was charged with a serious criminal offence, namely assault to injury with intention to rape. He had, however, been released on bail.  As a result of being charged, the respondent suspended the claimant on full pay pending an investigation. The claimant made the respondent aware of the nature of the charges but stated that he denied them in their entirety.

In carrying out the investigation, there were two possible options according to the respondent.  The first was to keep the claimant suspended on full pay pending the trial or to dismiss the claimant.  The respondent chose the second option citing a number of reasons.  The first was that to keep the claimant suspended on full pay was open ended as it was unknown when the trial would take place and this was not be a proper use of charitable funds.  It was further put that he could not return to work considering the vulnerable patients that he would be dealing with.  Finally, the respondent was cognisant of the potential reputational risk that they could suffer if the claimant was found guilty and was still an employee of theirs.  The claimant appealed the decision to dismiss yet it was upheld.  However, it was noted at the appeal that the position would remain open and in the event of an acquittal or the charges being dropped then he could return to the position with his continuity of employment retained.

At first instance, the ET dismissed the claimant’s claim for unfair dismissal and this was appealed.  In the appeal, the claimant argued, citing Leach v The Office of Communications [2012] that the use of risk to reputation in dismissing an employee can only be used when there is an objective rational basis for the risk itself.  The EAT in examining this argument stated that:

‘It would not be open to an employer…to dismiss an employee for reputational reasons just because an employee faces a criminal charge. There would need to be some relationship between the matters alleged and the potential for damage to reputation.’

The example was then given of a serious driving charge but that it could not be used if the employee did not undertake any driving duties.  However, in analysing this case the EAT held that it the allegations could be linked to the employment relationship considering that he would be with very vulnerable patients and that it could then lead to reputational risk.  For this reason, the decision of the ET was upheld with the unfair dismissal claim being dismissed.

Practical Lessons

This case demonstrates the extent to which employers can rely upon criminal charges for the purposes of a dismissal.   The EAT made it clear the existence of criminal charges is insufficient but there must be a link between the allegations and the work, such as the duties that would be undertaken.  Therefore, as this was an assault with intention to rape, it was seen to link to the employment of the claimant as he would have been in charge of vulnerable patients.  The EAT was also cognisant of the fact that this was a charitable organisation and the expectation of ensuring probity in its affairs.   These issues must be borne in mind by employers if they are having to act as a result of an employee facing criminal charges.
https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKEAT/2019/0006_19_1509.html&query=Lafferty+v+Nuffield+Health