Charity Entitled to Sack for Reputational Reasons

Workers who are accused of criminal offences are, like everyone else, innocent until proven guilty – but what if keeping them on threatens to cause reputational damage to their employer? The Employment Appeal Tribunal (EAT) tackled that tricky issue in the case of a hospital porter who faced a charge of assault with intent to rape (Lafferty v Nuffield Health (2020)).

The employee had an unblemished disciplinary record in his work for a healthcare charity which operates a number of hospitals and has about 16,000 employees. His work was sensitive in that it involved transporting anaesthetised patients to and from operating theatres. After he was arrested and charged, the charity launched a disciplinary process which culminated in his dismissal. His complaint that his dismissal was unfair was rejected by an Employment Tribunal.

In dismissing his appeal against that outcome, the EAT noted that the disciplinary investigation had focused not on whether he was innocent or guilty of the charge – which he vehemently denied – but on the potential reputational damage that the charity would suffer if it continued to employ him. The option of suspending him on full pay indefinitely, no date having been set for his trial, was rejected on the basis that that would not be a proper use of charitable funds.

The charge amounted to more than a bare allegation, in that a decision had been taken to proceed with his prosecution, and the charity was not in a position to investigate the alleged incident in any detail because it was not alleged to have occurred in the workplace or in the course of the man’s employment.

The EAT noted that it would not ordinarily be open to an employer to dismiss an employee for reputational reasons because he or she faces a criminal charge. As a medical charity, however, the employer was particularly vulnerable to reputational damage. Given the nature of the man’s work, the charity genuinely believed that, if it kept him on, there would be a real risk of a public perception arising that it had placed vulnerable patients at risk. His dismissal thus fell within the range of reasonable responses open to the charity.

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