Any new cases to be aware of?

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The case of Lafferty v Nuffield Health considers the fairness of an employee’s dismissal where the employee has been charged with a criminal offence.

Nuffield Health is an independent sector health care organisation owning and operating a number of hospitals throughout the UK. It’s registered as a not for profit charity employing around 16,000 employees.

Mr Lafferty commenced employment with Nuffield Health in or around 1996 as a HSSU co-ordinator and theatre porter. He was required to transport anaesthetised patients to and from operating theatres in the hospital. Throughout his 20 plus years of employment, he had an unblemished disciplinary record.

In February 2018, Mr Lafferty was arrested by police and charged with assault to injury with intention to rape. He was released on bail following a court hearing. He informed his employer of his arrest and the circumstances around it. The police also informed the hospital directly.

A few days later, Mr Lafferty was suspended on full pay pending an investigation into the allegations. At the beginning of March 2018, an investigatory meeting was held by the charity and Mr Lafferty produced his bail report containing details of the charges against him and the police report. He gave his version of events to the employer and he denied the charges. The investigating officer concluded that a further meeting was necessary to discuss his ongoing employment with the charity as there were concerns about the potential reputational damage the charge may cause to them.

Mr Lafferty attended a disciplinary meeting. The disciplinary officer focused on the potential reputational damage to the charity rather than the charges against Mr Lafferty, making clear it was not for him to make a finding on those. The disciplinary officer concluded there were two options available to him – (1) to suspend Mr Lafferty on full pay pending the outcome of the criminal trial as he did not feel it appropriate that he should return to work until after the trial, or (2) to dismiss him. He considered the damage to the charity if Mr Lafferty were found guilty of the charges and was also aware of other charities that had experienced inappropriate behaviour recently which had affected their reputation. Given it was unknown when the trial would take place, the disciplinary officer was mindful that suspension could be ongoing for some time and did not consider this would be proper use of charitable funds.

As such, the disciplinary officer decided to dismiss Mr Lafferty on notice because of the potential reputational risk to the charity. Mr Lafferty appealed against the decision to dismiss him. He felt the decision was unfair as he had not been convicted. The appeal officer upheld the decision to dismiss and informed Mr Lafferty that if he was acquitted then he would be reinstated.

Mr Lafferty brought a claim for unfair dismissal.

The Employment Tribunal held that the decision to dismiss had been fair. The reason for the dismissal was due to genuine concerns held by the charity that if Mr Lafferty was convicted then there was a genuine risk of damage to their reputation. Potentially this is a fair reason under some other substantial reason (SOSR). The central question was what had been reasonable for the charity to do in the circumstances. The charity had spoken with Mr Lafferty, sought clarification from him about the allegations and tried to find out when the trial may take place. It had considered other options available, such as placing on paid suspension, but concluded the potential damage to reputation was too great for the charity. It therefore acted reasonably in dismissing him.

Mr Lafferty appealed to the Employment Appeal Tribunal which upheld the decision to dismiss as fair. The EAT considered the fact that the police had decided to prosecute, the nature of his role and the risk of reputational damage, given the employer was a charity whose sector was under scrutiny at that time.

Learning point – all cases must be considered on individual facts but this case does demonstrate that it may be fair to dismiss someone for criminal charges without waiting for the outcome of the criminal trial.