ET finds that dismissing employee charged with murder was unfair

The Employment Tribunal (ET) had to consider, in the case of Difolco v Care UK Community Partnerships Ltd, whether the respondent had acted fairly in dismissing an employee after they were charged with murder.

Facts:

The claimant was employed as a Care Assistant working with vulnerable adults. They were arrested on suspicion of murder and placed in police custody. The claimant’s daughter called the respondent to say that the claimant would not be in work because they had Covid-19. 

News of the arrest, including the claimant’s name, age and hometown, was reported in a national newspaper, however the identity of their employer was not. Following this, the claimant’s daughter reported to the respondent that the mother had been arrested and charged with murder. The claimant was suspended on full pay, pending an investigation into what the respondent referred to as “a breakdown in trust in confidence and potentially bringing the company into disrepute following your arrest and appearance in court for facing murder charges”.

At the investigation meeting, the claimant disclosed that they had previously been arrested for murder, but the formal charge did not take place until 10 months later. The claimant also admitted at this time that when their daughter called in sick for them, they were in fact in a police cell and did not have Covid-19.

A disciplinary hearing was arranged to discuss the allegation that there had been a “serious act causing a breakdown in trust and confidence and potentially bringing the company into disrepute including failure to report circumstances concerning arrest and court appearance for serious charges including murder”. Despite the allegation relating to “bringing the company into disrepute”, there was no discussion in the hearing of the risk of reputational damage resulting from the claimant’s arrest and murder charge.

The claimant was dismissed with notice and brought various claims including unfair dismissal.

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Employment Tribunal:

The ET found that there had been no actual assessment of the risk of reputational damage at any point during the proceedings. Nor had there been any discussion with the claimant on this risk. This, the ET held, meant there was no adequate “exploration” of the risk, which should have taken place even if the risk were “reasonably obvious” and alternatives to dismissal should have been part of that discussion.

It was held that no large employer with a dedicated HR function (as was the position of the respondent) acting reasonably in the circumstances would have dismissed by reason of the risk of reputational damage without having first discussed the matter with the employee, and as such the decision to dismiss fell outside the range of reasonable responses and was therefore unfair.

The claimant was awarded a basic award of £1,862.07 but the compensation element was reduced to nil. This was because it was found that had the risk of reputational damage and alternatives to dismissal been discussed with the claimant, the dismissal would have been fair. This was as a result of the ET finding that the risk of continuing to employ the claimant could not be mitigated by transferring their employment to another role, and the cost implications of continuing to leave the claimant on suspension pending the outcome of the trial.

Takeaway Points:

This case is a timely reminder for employers not to jump to dismissal when it comes to employees being arrested or investigated by the police. Whilst it is understandable that employers would be concerned by such events, and the damage the continued employment of the individual could do to their reputation, this does not override the need to follow the principles of natural justice, and the requirement to be fair and reasonable as set out in the Employment Rights Act 1996.