Under the Employment Rights Act 1996 there are several fair reasons to dismiss an employee. The most common are capability, conduct, redundancy and ‘some other substantial reason’ (SOSR) a catch-all category for a substantial reason that does not fit within the other fair reasons. Criminal matters outside of work can sometimes constitute some other substantial reason (SOSR) and render a dismissal on those grounds fair.
In the recent case of Lafferty v Nuffield Health, the Employment Appeal Tribunal (EAT) has confirmed that an employer can fairly dismiss an employee on the basis of concern for its reputation when an employee is charged with (but not yet convicted of) a criminal offence.
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 made clear that each case will turn on its own facts. It held that employers should not simply take allegations of criminal contact at face value but should make some enquiry of their own. It is also relevant in this case that the Claimant’s job meant that he had the opportunity to commit the kind of act he was charged with, hence there was a clear link between the charges and the job. The employer here was also a charity and had a genuine fear of reputational damage (exacerbated due to recent highly publicised concerns in the charity sector).
If you find yourself in a similar situation with an employee facing criminal charges then, because of the fact-sensitive nature of these matters (as confirmed by the EAT in the Lafferty case above) you should seek advice via the RMIF helpline.
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