The Claimant in this case had been working as a carer since 2019 until her dismissal in November 2022.
In October 2022, following a police investigation, the Claimant and three others were arrested and charged with murder. The Claimant was detained for a day during which time her daughter informed the Respondent she was absent due to COVID. The Claimant appeared in court the next day and was granted bail.
This was reported in the media. The newspaper report stated the Claimant’s name, age and the town in which she resides. It did not refer to the Respondent.
The day after the Claimant’s court appearance her daughter explained the full situation to the Respondent. As a result, the Claimant was suspended pending an investigation. The stated reason for the investigation was to look into a “breakdown in trust in confidence and potentially bringing the company into disrepute following your arrest and appearance in court for facing murder charges”.
The Respondent’s disciplinary policy stated that in the event of an employee being subject to criminal charges the matter would be investigated. The Respondent would not need to wait for the conclusion of the court process to take action it deemed necessary. It also stated that conduct outwith work may be subject to disciplinary proceedings if the conduct was relevant to their employment.
The investigation revealed that the Claimant was initially arrested in January and that when she was absent in October she was not in fact ill with COVID but detained in jail. Her manager confirmed that the Claimant told her that her phone was being held as evidence by the police but did not clarify further. The Claimant stated there was a further hearing in November, protested her innocence and referred to the whole situation as a “nightmare”.
The Claimant was dismissed following a disciplinary hearing. The reasons for dismissal were that the murder charge could bring the Company into disrepute and a breakdown of trust and confidence because the Claimant did not report the initial arrest in January.
The Claimant’s appeal was not upheld due to the danger of damage to the Company’s reputation. It was also not considered appropriate that someone charged with murder would be in a “position of trust with vulnerable adults”.
The Claimant was subsequently acquitted in March 2024.
The Claimant was successful in her claim for unfair dismissal. The tribunal found that despite the reason for dismissal being reputational damage, there was no actual assessment or discussion of this in the investigation report or the hearing. In addition, alternatives to dismissal were not discussed. The tribunal did acknowledge that the risk would seem obvious in this case but that discussion would not have been “utterly useless or futile because it would have enabled proper consideration in discussion with the Claimant of the nature of the reputational risk and the alternatives to dismissal.”
However, the compensatory award was reduced to zero because even if reputational damage and the alternatives to dismissal had been discussed, she would still have been dismissed and that dismissal would have been fair.
For employers, this shows that in cases where reputational damage is a factor it cannot be assumed that this is a given and must be a feature of the disciplinary process.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.