It’s not always fair for an employer to dismiss an employee because of something they’ve done outside of work, but in the case of Lafferty Vs Nuffield Health, the Employment Appeal Tribunal decided that in the particular circumstances Mr Lafferty, a hospital porter with 20 years untarnished service, was fairly dismissed because of the damage to its reputation that Nuffield health felt it might suffer by continuing to employ him.
Mr Lafferty had been charged with assault with intent to rape. Nuffield Health, a charity, considered that it could not leave him in his role moving anaesthetised patients in and out of operating theatres as it felt there would be a genuine risk to its reputation should Mr Lafferty be convicted. We suppose that patients may have genuine concerns about being alone and unconscious with someone convicted of sexual assault….not a wildly unfair concern.
The employer didn’t leap straight to a dismissal though….first it considered (and recorded that it did so) utilising paid suspension until Lafferty’s court case, but as Lafferty had no idea when this might be it decided that paid suspension was not a feasible option because an open ended arrangement was not a good use of the charity’s funds. We don’t know whether Mr Lafferty was offered unpaid holiday, but that may well have been another valid consideration. In any event the employer decided to dismiss him given their belief of the serious reputational risk they would suffer in the event of an eventual conviction and in the light of the fact that they had no idea of when the case would eventually be heard.
It is worth noting that Lafferty was dismissed with notice as he was not guilty of any misconduct or gross misconduct in connection with his employment. Had the employer dismissed him without his notice the tribunal would have found a wrongful dismissal and awarded notice pay of 12 weeks (1 week for each year of service up to a maximum of 12 years) and possible compensation.
These cases are always fact sensitive. Had Lafferty’s job not involved patient contact, or even just unconscious patient contact, the tribunal’s conclusion may well have been different. If an employer is considering terminating an employee’s employment because of an event outside of work it should always carefully consider the actual reputational risk in the context of the event itself – in many cases there would be none. It should also consider, as Nuffield Health did, the various alternatives to dismissal and it should ensure it has communicated fully with the employee concerned. Lastly it should keep good records of its investigations, consideration of alternatives and the eventual reasons for its decision.