If one of your employees is arrested and charged with something more than usually distressing and distasteful, the question will inevitably come up of whether he can be dismissed. The driver for that inquiry will often be a fear on the employer’s part of adverse publicity arising from its continued employment of him against that background. The trial might easily be a year away, so what else are you to do in the meantime? Suspension on pay for such a period is hardly viable, any more than suspension without. So can you dismiss for conduct which the employee may well be ultimately be found not to have committed (and which you yourself may not even believe in), but where the prospective impact on corporate reputation could nonetheless be significant?

Time to go back to The Law. For a fair dismissal the employer needs to show that termination would be within the “range of reasonable responses” to the situation in which it finds itself. Generally in these cases it will proceed on the basis of “some other substantial reason” rather than misconduct because it can generally have no idea whether he did the deed or not, nor is it actually madly important at this stage whether he did so anyway. The issue right now is its reputation.

In assessing whether prospective reputational damage is grave enough to justify dismissal within that range, the Employment Tribunal will bear in mind that today’s newspaper carries tomorrow’s cod-and-chips, and that it is in only very rare occasions that the criminal behaviour alleged has any real potential actually to affect the buyer or other user of the employer’s services or products. It will consider also the nature of the offence and any particular sensitivities in the environment in which the employer operates, whether for example the healthcare, financial services, charitable or legal sectors. The Tribunal should have regard also to the employer’s customer base – as a rule, purely B2B counter-parties are much less likely to have knee-jerk emotional reactions to these things than retail customers, to boycott or to whip up any sort of social media storm.

The Employment Tribunal might also note a widely-held but still more-than-slightly questionable judicial view that the man on the street is fully aware that there is a world of difference between being charged with an offence and being guilty of it. If you say so, m’Lud.

All of which takes us to Lafferty -v- Nuffield Health last month. Mr Lafferty was (and for the reasons below, still is) a hospital theatre porter, meaning that he transported anaesthetised patients to and from operating theatres at the Nuffield in Glasgow. In February 2018 he was charged with a serious sexual offence, which he denied and of which – spoiler alert – he was ultimately acquitted. In March that year he was dismissed, not on the basis of the conduct alleged against him but because of the perceived risk to the Hospital’s reputation in the meantime. Lafferty had not been acquitted by the time of the Employment Tribunal hearing, but knowing what you now know about the outcome, was that a good enough reason to justify his dismissal?

Both the employer and the ET found the question a hard one. On the one hand, here was a man whose job involved access to patients at their most vulnerable (i.e. unconscious) who had been charged with a very unpleasant sexual offence – how would patients feel knowing that he might be responsible for them at their most helpless, and separately, what would be the damage to the Hospital if Lafferty were left in his post and did choose to take improper advantage of his position? Against that, here also was a man with an unblemished record of patient care who vigorously denied the police charge and whose career and reputation could be destroyed by a dismissal on such grounds, since the reality is of course that people do inevitably associate someone’s being charged with something with their being guilty of it.

The Hospital carried out an agonised assessment of the conflicting interests of the parties and ultimately decided that it had to dismiss. There was no known trial date and as a charity it could not afford an indefinite suspension. However, it also made the strictly gratuitous but nonetheless largely sensible offer to Lafferty that if he were later acquitted, he could have his job back with unbroken continuity. That would go some way, it thought, to show publically that there was no continuing stain on his character so far as his employer was concerned.

Because the Hospital’s detailed consideration of the rights and wrongs of the situation had genuinely been confined to reputational issues and because of the particular circumstances of Lafferty’s role, that dismissal was found to be within that range of reasonable responses required by The Law. The dismissal (even though it turned out to be only temporary) was fair in the eyes of both the Tribunal and the EAT. These are relatively extreme facts – that will not be the answer every time.

But what of the offer of reinstatement to Lafferty if he were acquitted. Why is that only “largely” sensible? A very proper gesture, one might think, but potentially something of a risk for the employer. Just as being charged with an offence doesn’t mean that you are guilty, being acquitted doesn’t mean that you are innocent, only that you cannot be proven not to be. Trials can collapse for procedural reasons alone and the Crown Prosecution Service can easily decide not to pursue any case where it perceives a sub-50% prospect of conviction. Such an offer is clearly the humane thing to do in what will always be very difficult circumstances, but employers should always reserve to themselves a discretion to consider the circumstances of the acquittal and any surrounding press coverage before binding themselves in that way.