The EAT has upheld an employment tribunal decision that a hospital porter working for Nuffield Health had been fairly dismissed because continuing to employ him posed too great a risk to the charity’s reputation. The claimant worked in its Glasgow hospital and was facing a criminal charge of assault to injury with intention to rape.
The claimant’s duties included transporting anaesthetised patients (who were therefore in a highly vulnerable position) to and from operating theatres. He had been working for Nuffield Health – a large charity with over 16,000 employees – for over 20 years and had an unblemished disciplinary record.
Following his release on bail, he told his employer of the circumstances of his arrest and was then suspended on full pay. After an investigation, the claimant was dismissed on notice. His employer decided that there was potentially a significant risk that their reputation could be damaged if they continued to employ someone with access to vulnerable patients when facing charges of this nature. It was made clear that no judgment was being made by the employer as to the claimant’s guilt or innocence.
The employer had considered the alternative of suspension on full pay, but there was no information about when the trial date would take place. It was considered that an open-ended suspension on full pay would not have been a justifiable use of charitable funds. However, the employer did agree that his post would not be filled on a permanent basis until the criminal trial. Should he be acquitted, he would be reinstated on the same terms and conditions, but without pay for the intervening period. That had in fact happened by the time the appeal was heard by the EAT, following the claimant’s acquittal.
The employment tribunal found that the dismissal had been fair, having been “for some other substantial reason”. As with all unfair dismissal cases, it had to consider whether the decision to dismiss was within the “band of reasonable responses” and it determined that a reasonable employer could have reached such a decision. The tribunal placed emphasis on the fact that the dismissal had not been a “knee-jerk” reaction and that there had been a reasonable investigation before the decision was reached.
Although it acknowledged that this was “quite a difficult case”, the EAT decided that the tribunal was entitled to reach the conclusion that it did. However, it emphasised that the conclusion might have been different if the porter’s job had not involved contact with vulnerable people, or if it had been feasible to transfer him to other duties pending his trial. In addition, it was the degree of connection between the criminal charge, the employee’s role and the potential for significant damage to reputation that was crucial. For example, if the charge related to a serious driving offence, and the employee’s job did not involve any driving, then it would be unlikely that the risk of reputational damage would be serious enough to justify dismissal.
Although this case does not establish any new principles, it demonstrates that employers are not required to continue to employ a worker who is facing non-work related criminal charges where, if guilty, this could severely damage the organisation’s reputation. However, there needs to be a clear link between the criminal charge and the impact on the employee’s role, in order to establish a higher risk of reputational damage justifying dismissal. . Alternatives to dismissal also need to be actively considered. (In this case, although not strictly relevant to the fairness of the dismissal, one wonders if the tribunal was also influenced by the fact that the employer was prepared to reinstate the claimant should he be acquitted).
While this case involved an independent healthcare charitable organisation, NHS employers (as public sector bodies delivering patient care) are equally likely to face a high level of scrutiny and an increased risk of reputational damage if there is any suggestion that vulnerable patients are being placed at risk.