Employment
...maintaining the employment could result in reputational damage...
returning the contractual documents upon receiving his original job offer, the claimant had agreed to work a varied shift pattern which did include Sundays. When he had later tried to vary his hours, the organisation had considered his request and attempted to accommodate it. The tribunal held that the claimant’s retracted job offer had not come about because he had tried to opt out of Sunday working, but because he had refused the alternative hours he had been offered. As a result, the claimant had failed to demonstrate that the reason, or principle reason, for his dismissal was that he proposed to opt out of Sunday working. He appealed to the EAT on the grounds that the tribunal had misapplied the law regarding Sunday working and that its decision was ‘perverse’. The EAT dismissed his appeal, finding that the tribunal had directed itself correctly about the relevant test and made the correct decision based on the evidence available to them. The EAT explained that that it was open for the tribunal to find that the reason for the claimant’s dismissal was that he had refused the offer of alternative hours, not because he was opting out of working on a Sunday. They also agreed that it was perfectly open to the organisation to renegotiate the contract on receipt of his opt-out notice, and there was no reason why this would not be the case. This decision therefore seems to confirm that whilst employers cannot dismiss shop workers for opting out of working on a Sunday, there may be grounds for dismissal if the employee is unwilling to accept that working one less day may result in less pay. However, employers should remember that shop workers who do opt-out are protected from being subjected to any form of detriment, alongside unfair dismissal, and
should always approach these situations carefully.
and how long he would need to remain suspended on full pay. The claimant appealed against this decision and the appeal was ultimately rejected as his continuing to be employed could potentially have breached the charity’s duty of care to patients. He was also informed that in the event of acquittal or charges dropped he would be able to return to his previous role, with continuity preserved, but he would not be paid for the time he was considered dismissed. He later brought a claim of unfair dismissal to the ET, which rejected his claim. The tribunal held that the charity had clearly demonstrated the reason for his dismissal was because of a risk of reputational damage, from concerns that were genuinely held. After the hearing, the claimant was fully acquitted at trial and returned to work. Despite his return, the claimant appealed to the EAT. The EAT dismissed his appeal. Although he tried to argue that the reputational risk was conditional on his being charged and therefore could not be relied upon as reasonable grounds for dismissal, the EAT held that it was correct for the tribunal to also consider the risk if he was convicted and remained employed. His job role placed him in direct contact with vulnerable individuals and, potentially, presented opportunity for him to commit a similar crime to what he had been charged with. The EAT also rejected his argument that the investigation conducted by the charity was inadequate. As the tribunal had rightly concluded, the charity had taken steps to find out more about the charges and considered alternatives to dismiss him. The EAT explained that it was arguably ‘self-evident’ that the claimant’s continued employment could have resulted in reputational damage, and that this conclusion was informed and had been reached by experienced managers. If employers can demonstrate they have taken steps to clearly establish a genuine concern for reputational damage, a dismissal of this nature can be considered reasonable. However, it is important not to get too complacent. As the EAT noted, it is not open for an organisation to dismiss an employee simply because they have been charged with a criminal offence. n
Lafferty v Nuffield Health In this case, the EAT held that it was reasonable for a charity to dismiss a long-service employee who had criminal charges due to the potential for reputational damage. Under ERA, there are five potentially fair reasons to dismiss an employee, which includes some other substantial reason (SOSR). Generally, these dismissals arise when there are fears that maintaining the employment could result in reputational damage for an organisation. In this case, the claimant had worked for a charity for over twenty years as a theatre porter, meaning he had full access to vulnerable patients. He informed the charity that he had been charged with assault and intention to rape, and had been released on bail. The charity held an investigatory meeting, where Mr Lafferty provided copies of the police report and vigorously denied the allegations. Further meetings were held between the claimant and management, with concerns that his charge, and potential conviction, could have serious reputational impact on the charity. Although management did consider that the claimant had a long and unblemished record, they felt that the reputational risk outweighed this factor. He was therefore dismissed with full notice due to SOSR, namely reputational damage. Management
explained that they had considered suspending him until his trial, but
ultimately decided against it as it was not known at the time when the trial would be
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| Professional in Payroll, Pensions and Reward |
Issue 60 | May 2020
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