How to deal with employees convicted of a criminal offence in light of the decision in Lafferty v. Nuffield Health

Dentons

The case of Lafferty v. Nuffield Health presents a number of interesting issues around whether an employee can be fairly dismissed on the basis of a criminal charge or conviction in light of the risks to the employer's reputation. This article explores these issues in the broader context of dealing with such employees before leaving you with some key points to consider.

Background

Mr Lafferty worked as a hospital porter for Nuffield Health (Nuffield) and was tasked with duties including the transport of anaesthetised patients to and from theatre. In February 2018, he was charged with assault with intent to rape. Mr Lafferty was bailed and ultimately a decision to prosecute was taken. On finding out about the charge, Nuffield suspended Mr Lafferty on full pay. In the weeks after his arrest, Nuffield carried out an investigation, which included two meetings with Mr Lafferty in which he was able to give his version of events and allow Nuffield to review the police and bail reports. 

This investigation led to a disciplinary hearing that resulted in Mr Lafferty being dismissed on notice, given the reputational damage that his continued employment could cause Nuffield. At the time, there had been significant scrutiny of sexual misconduct in the sector and the Charities Commission had issued a reminder that charities needed to be mindful of the risk of reputational damage. Nuffield had considered suspending Mr Lafferty on full pay but, given that no trial date had been fixed, any suspension would have been open-ended. They considered that not to be a reasonable use of the charity's resources. Mr Lafferty was ultimately acquitted at trial and reinstated by Nuffield.

There are five grounds under which an employee can be dismissed, including "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held".This was the ground relied upon by Nuffield. For a dismissal to be fair, the employer must also have been acting reasonably in taking the decision to dismiss. Mr Lafferty brought a claim against Nuffield in the Employment Tribunal (ET), alleging that his dismissal had not been fair. The ET found in favour of Nuffield.

Mr Lafferty appealed the decision to the Employment Appeal Tribunal (EAT), citing two grounds for appeal. Firstly, Mr Lafferty argued that the ET had failed to consider whether Nuffield had undertaken an adequate investigation into the matter. Secondly, he submitted that the ET had failed to assess for itself all the relevant circumstances, including whether there was an objectively rational basis for considering that there was a risk of reputational damage.

Decision

The EAT rejected Mr Lafferty's appeal and upheld the ET's decision that Nuffield had acted reasonably in dismissing Mr Lafferty. 

They decided that Nuffield had properly investigated the allegations against Mr Lafferty, had given him plenty of opportunities to present his side of events and had seriously considered alternatives to dismissal. The EAT noted that it was not necessary for Nuffield to carry out a full-scale investigation of the allegation as the events had occurred away from the workplace, or for Nuffield to determine Mr Lafferty's guilt. That being said, Nuffield still had critically to consider the allegations made by the police and would not have been able to dismiss Mr Lafferty on the police evidence alone. The EAT found that dismissal was within the range of reasonable responses open to Nuffield, given the significant risk of reputational damage and agreed that suspension was not a viable option because of the lack of clarity surrounding Mr Lafferty's trial date, meaning any suspension would have been indefinite. Dismissal in this case had not been a "knee jerk" reaction.

The EAT also considered the Court of Appeal's decision in Leach v. Office of Communications,2 another case which considered dismissal on the grounds of risk to reputation. In Leach, the Court of Appeal listed the following factors, which employers should take into account in similar situations: 

  • the nature of the employer's organisation;
  • the employee's role in it; 
  • the nature and scope of the allegations and the efforts made by the employer to obtain clarification and confirmation; 
  • the responses of the employee; and
  • what courses of action were reasonably open to the employer.

The EAT's judgment clearly states that there "would need to be some relationship between the matters alleged and the potential for damage to reputation" for a dismissal on the basis of damage to reputation to be fair. Mr Lafferty had responsibility for vulnerable patients and it was reasonable to be concerned about the possibility that he might commit an act similar to the one with which he had been charged. If, on the other hand, he had been charged with a serious driving offence, it is unlikely that his dismissal would have been fair as driving was not one of his normal duties. 

An employer cannot therefore rely on Lafferty v. Nuffield Health alone to justify the dismissal of any employee simply because they have been accused of a criminal offence.

Broader context

Employers do not have an automatic right to dismiss employees who are charged with, or even convicted of, a criminal offence. There must be a sufficiently close connection between the offence and the employee's role within the organisation. Employers must still investigate the issue fairly and be able to explain reasonably why the individual is not suitable for the relevant role as a result of the allegation or conviction. Factors that may reasonably be taken into account include the publicity related to the offence or whether other employees would feel comfortable continuing to work with the individual.

If an employee has an unspent criminal conviction and lies to their employer about it, the employer may have grounds for dismissal as a result of a breakdown in trust and confidence. 

Key takeaways

While dealing with an employee who is charged with a criminal offence is a less common disciplinary issue, it is important that employers are prepared and act appropriately if this situation does arise. Employers should consider the following:

  • critically consider any information provided by the police or other investigative body and ensure that the investigation into the allegations is well documented;
  • focus any investigation on the risk to the organisation suffering reputational damage and not on trying to determine whether the employee is guilty of the offence; 
  • give the employee sufficient opportunities to present their side before deciding whether to dismiss them (for example, through investigation and disciplinary hearings);
  • think about alternatives to dismissal, including suspension on full pay or reallocating the individual to a different role within the organisation – if this is not possible, document why it is not possible; and
  • only use a criminal charge as a ground for dismissal if there is a clear connection between the alleged offence and the employee's duties and responsibilities.

  1. Section 98(1)(b) Employment Rights Act 1996.
  2. Leach v. Office of Communications (OFCOM) [2012] IRLR 839.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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