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Is It fair to dismiss an employee who has been charged with a Criminal Offence, but not Convicted?

Posted On: [03/09/2021]

The Employment Appeal Tribunal has ruled in Allan Lafferty v Nuffield Health [2019] , that an employer can dismiss an employee who has been charged with, but not convicted of a criminal offence.

Allan Lafferty worked as a Hospital Porter with Nuffield Health. He had an  unblemished service record with his employer and his duties included transporting anaesthetised patients to and from theatre. He was charged was assault to injury with intention to rape outside of work. Mr Lafferty and the Police both told Nuffield Health about the charges, and that a trial date had not been set.

Nuffield Health considered all available information, and whether they could place him on alternative duties pending the trial. Ultimately, they decided to dismiss him because there was a risk to Nuffield Health’s reputation if he should be convicted. Of particular concern was the fact that he had access to vulnerable patients.

Mr Lafferty sued for unfair dismissal in the Employment Tribunal, which found that he had been fairly dismissed. Although he lost his case in the Employment Tribunal, Mr Lafferty was ultimately reinstated but appealed to the Employment Appeal Tribunal because Nuffield Health refused to pay him for the period between his dismissal and reinstatement.

The Employment Appeal Tribunal considered case law about dismissals where the allegations of criminal conduct had not been proved. The Court said that each case is decided on its own facts. The general principles established from the cases are that it is not 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 criminal allegation and the potential for damage to the employer’s reputation. For example, if the criminal charge is about a serious driving offence and the employee’s job does not involve any driving duties then it would be unlikely that the employer would suffer reputational damage if the employee remained employed.

It is an entirely different situation if the alleged offence is the sort that the employee can commit in the course of their duties or which gives access to vulnerable patients. The risk to reputation arising out of the suggestion that the employer continued to place vulnerable persons at risk, is pretty obvious. The Court said that even in those circumstances, there cannot be an assumption of risk without some consideration of the matter.

In the present case, Nuffield Health was right to dismiss Mr Lafferty. 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. Nuffield Health had made sufficient enquiry and decided that Mr Lafferty’s job gave him the opportunity to commit the kind of criminal act that he had been charged with, and there was a risk of reputational damage for them.

See also How to survive a criminal charge, conviction or police caution at workPersonal information about criminal convictions and offencesWorking or finding a job with a criminal recordThe Disclosure and Barring Service