Atack Allan Lafferty v Represented by: Mr D McCusker Solicitor Nuffield Health — 2018

The claimant, a long-serving HSSU Coordinator and theatre porter employed since 1996, was arrested on 17 February 2018 and charged with assault to injury with intent to rape. He informed the respondent on 20 February 2018, was suspended on full pay on 22 February, and was then taken through an investigatory meeting and a further meeting with the hospital director, Matthew Lamb, on 14 March 2018. The respondent’s stated concern throughout was potential reputational damage to Nuffield Health if the charge became public and, in particular, if the claimant were later convicted while working in a hospital environment with vulnerable patients.

Mr Lamb dismissed the claimant with notice on 14 March 2018 after concluding that continued employment, including open-ended suspension on full pay, was not an acceptable option. The claimant appealed, and the appeal was heard by John Lofthouse on 6 April 2018. Mr Lofthouse upheld the dismissal, but stated that if the claimant were later acquitted or the charges were dropped he would be reinstated on the same terms and conditions with continuity preserved. The tribunal recorded that the claimant’s post was kept open and covered by temporary labour pending the outcome of the criminal proceedings.

The tribunal held that the respondent had shown a potentially fair reason for dismissal, namely some other substantial reason under section 98 of the Employment Rights Act 1996, based on a genuine and non-trivial concern about reputational damage. It accepted the respondent’s evidence that both decision-makers were experienced managers entitled to assess that risk without seeking external public relations advice, and rejected the suggestion that the dismissal was in reality a financial decision. It also accepted that the respondent had considered the claimant’s long service and clean disciplinary record, but found that those factors did not outweigh the perceived reputational risk.

On fairness under section 98(4), the tribunal found that the process was fair and that the dismissal fell within the range of reasonable responses. It held that the respondent had investigated, met with the claimant, informed him that his employment might be affected, allowed him to be accompanied, and provided an appeal. It specifically referred to the ACAS Code of Practice as having been followed. Applying the approach in Leach v Ofcom and the range of reasonable responses test from Iceland Frozen Foods and British Leyland v Swift, the tribunal concluded that the issue was whether the employer acted reasonably, not whether the claimant suffered injustice. The unfair dismissal claim was therefore dismissed.