UK: dismissal to avoid reputational risk will only be fair in limited circumstances

The EAT has emphasised that it would not be fair for an employer to dismiss an employee for reputational reasons just because the employee has been charged with a criminal offence for conduct outside work. There would need to be some relationship between the matters alleged and the potential for damage to reputation.  It would also need to be reasonable to reject alternatives such as suspension on full pay pending resolution of the criminal case;  in determining reasonableness, the size of the employer and whether a trial date has been set would be relevant.

In Lafferty v Nuffield Health, the employer's dismissal of an employee charged with assault with intent to rape (unconnected with work) was held to be fair, despite the employee's 20 years' unblemished service.  However, it was relevant that his role as hospital theatre porter transporting anaesthetised patients could have given him an opportunity to commit a similar act to that charged, and that the employer was in the charitable sector which was under particular scrutiny at the time following exposure of sexual offences at other organisations.  It was therefore reasonable for the employer to genuinely believe there was a significant reputational risk if the employee were convicted, given that having allowed the employee to work between charge and conviction would mean that additional patients would arguably have been exposed to risk.  Suspension on full pay was not reasonable given the employer's charitable status and the lack of a trial date.  However, the EAT did query whether a large employer would genuinely be 'financially troubled' by suspending on full pay, meaning that dismissal by such employers might well not be fair.

In contrast, the tribunal in Bosher v EUI Limited ruled that it was unfair to dismiss an insurance claims validation co-ordinator because of risk of reputational damage, on his being charged with possessing indecent images involving children.  The tribunal made clear that a fear of reputational harm "cannot be presumed on the basis of a presumed extreme or scaremongering reaction in the press or public". The tribunal considered that the public should be credited with understanding that a prosecution is not the same as being found guilty, and that there was a difference between criminal activity and the viewing of legal pornography which might be viewed as "unsavoury or inappropriate" but was not criminal.  At the time of dismissal it was not yet clear whether there would be a public hearing, and the employer should have considered alternatives to dismissal such as redeployment, reducing responsibilities, or suspension pending developments in the criminal proceedings.