L was a long serving hospital porter based in Glasgow with an unblemished disciplinary record. His duties involved transporting anaesthetised patients to and from theatre.

He was charged with assault to injury with an intention to rape. He appeared in Court and was bailed pending trial. L then informed the Nuffield about the charges as did the police.

At an investigatory meeting with the Nuffield L gave his version of events strongly denying the allegations. Despite this, the investigating officer concluded there might be reputational issues for the Nuffield.

As a result, a disciplinary hearing was convened which focused on the potential reputational damage to the Nuffield, rather than whether L was guilty or innocent of the charges. The disciplinary manager was apparently aware of other charities which had recently experienced problems with inappropriate behaviour, and which had caused reputational issues.

The disciplinary manager concluded that either he had to suspend L on full pay, or dismiss him.

As there was no information about when L’s trial would take place it meant that L’s suspension was open ended. As a result, the disciplinary manager felt it wasn’t a proper use of charitable funds to keep L suspended indefinitely pending a trial date.

L was dismissed with notice because of the reputational risk to the Nuffield. A reputational risk dismissal would fall under “some other substantial reason” under s98(1)(b) Employment Rights Act 1996 (“ERA”).

L appealed, however the decision to dismiss him was upheld. The appeals manager also confirmed that in the event L was acquitted, he would be reinstated on his same terms and conditions, with his continuity of service preserved.

The Tribunal Hearing

L claimed he had been unfairly dismissed.

The Tribunal reiterated the fact that in these sorts of cases the question is not whether the employee has suffered injustice, rather whether the employer has behaved reasonably in all the circumstances.

The Tribunal concluded the Nuffield had and, accordingly, L’s claim was dismissed.

Employment Appeal Tribunal (“EAT”)

By the time L’s appeal in the EAT was dealt with, he had been acquitted at his criminal trial. This led to him being reinstated by the Nuffield.

Thus, in practical terms all the parties were fighting about was L’s loss of pay and benefits for the period of time he had been dismissed. The EAT expressed some surprise the parties hadn’t been able to reach an agreement.

The EAT made reference to the Court of Appeal’s decision in Leach v Ofcom [2012] IRLR 839 (“Leach”). That case concerned an employee where a specialist police unit had disclosed to his employer information suggesting the employee posed a potential threat, or risk to children in Cambodia. It's an important case dealing with the law concerning reputational damage type dismissals.

The Leach case turned upon two aspects: the first being whether there had been an adequate investigation of the allegations by the employer, acknowledging the fact that it’s often very difficult for an employer to get absolute confirmation when both criminal allegations and third parties are involved.

The second aspect concerned the employer having a sufficient reason for the dismissal. In Leach the employer had relied upon a “loss of trust and confidence” – a somewhat hackneyed phrase or, as the Court put it, “the automatic solvent of obligations”. In the event, the Court of Appeal identified that Leach was more about reputational damage (not trust and confidence), and as such it was a sufficient reason.

Mindful of Leach, the EAT in this case was satisfied that L’s dismissal was fair and his appeal was therefore dismissed.

Comment – Reputational Damage

It's accepted in law that employers are entitled to protect their reputation. Therefore, actual or potential damage to an employer’s reputation may constitute a fair reason to dismiss an employee either for conduct, or for some other substantial reason.

Before the proliferation of social media reputational damage dismissals were not common. However, there are a growing number of reported cases arising out of damaging social media postings, with the employer relying on reputational damage as justification for dismissal. With these types of cases serious misconduct is usually easy to establish, with the result that establishing the overall “fairness” of such a dismissal by reference to the “reasonableness” test under s98(4) ERA is less onerous.

Reputational dismissals similar to this case (and Leach) are much trickier for employers to rationalise properly. Quite often criminal charges can be extremely serious and the knee-jerk reaction is to immediately dismiss. The writer once had to advise an employer who had an employee on bail for manslaughter. On a careful analysis it was difficult to justify potential reputational damage and, being a substantial company, there was plenty of scope for temporary redeployment in a non-customer facing role.

Depending on the nature of the criminal charges potential reputational damage can be just part of the problem. Employers are likely to be faced with other employees whom, unreasonably or otherwise, may not want to work with an employee who is subject to criminal charges.

Similarly, customers can sometimes get wind of what has happened, with the result that they become reticent about allowing the employer’s bailed employee to work on their premises, or on their contracts generally.