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Unfair Dismissal: Criminal Charges

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Can an employer fairly dismiss an employee on the basis of concern for its reputation when the employee is charged with, but not convicted of, a criminal offence?

Yes, held the EAT in Lafferty v Nuffield Health, in what it called "quite a difficult case", dismissing the Claimant's appeal against a finding that his dismissal was fair.

The Claimant was a hospital porter with a long, unblemished service record at the Respondent charity. His duties included transporting anaesthetised patients. He was charged with a serious sexual offence unconnected with work, which he denied. He and the police both informed the Respondent of the charge, for which no trial date had been set. The Respondent dismissed the Claimant on the basis that there was a risk to its reputation from continuing to employ the Claimant when he had access to vulnerable patients, should he be convicted.

The EAT reviewed the law on dismissals involving unproven allegations of criminal conduct, noting that each case will turn on its own facts. An employer faced with information about alleged criminal conduct by an employee should not simply take that information at face value, but should make some inquiry of its own into the circumstances. Furthermore, in this case, the Claimant's job afforded him the opportunity to commit the kind of act that he was charged with, and there was a risk of reputational damage for the Respondent as a charity, in the light of recent scandals in that sector. The tribunal's finding that the dismissal for some other substantial reason was fair, was one that was open to it on the facts and there was no error of law in its findings.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary.