Dismissing Employees for Reputational Risk to Business.

There are five fair reasons to dismiss an employee, including misconduct, incapability (ill-health or non-performance), redundancy, statutory illegality and last but not least, the mysterious “some other substantial reason”, also known as ‘SOSR’. Tribunals do not accept SOSR as a catch-all reason for any circumstance which falls outside of the other four fair reasons. However, there is a growing body of case law on SOSR dismissals where an employee poses a potential risk to the employer’s reputation. 

Just in the first two months of this year, the EAT has been reported as having upheld the ET’s decisions in two separate cases that the employees’ dismissals were fair SOSR dismissals, given that their private lives were capable of bringing their respective employers into disrepute and undermining public confidence in the employer’s organisation.

In Q v Secretary of State for Justice, the EAT upheld the decision that a Probation Officer was fairly dismissed for failing to disclose to her employer a child protection issue concerning the risk she allegedly posed to her teenage daughter. She had already been given a warning for the same issue previously. Although the child protection allegations were unconnected to her work duties, it was held that there was not a disproportionate interference with her right to private and family life and that it was a legitimate aim for the Probation Service to safeguard its reputation. The Tribunal commented that, as the employer was part of the criminal justice system, it may have higher expectations of employees’ conduct than a private sector employer.

In Lafferty v Nuffield Health, the EAT upheld the decision that a charity hospital theatre porter was fairly dismissed after being charged with a criminal offence unconnected to his work, despite there being no conviction at the time of the dismissal. The employee’s duties involved moving anaesthetised patients to and from operating theatresand he had a clean disciplinary record with 20 years’ service. He was charged with assault with intent to rape but had no information on when his trial would be held. The employer considered that there was genuine potential for reputational damage which would be considerable should the employee be convicted, as the employer’s patients were vulnerable, especially so when the employee was working with them. The EAT noted that the risk of reputational damage was significant as the employer was in the charitable sector which had been under particular scrutiny for exposures related to sexual offences.

Employers should remember that even if there is a fair reason for dismissal, a Tribunal will also consider the reasonableness of the dismissal in the particular circumstances. The employer must follow a fair process and conduct a proper investigation before dismissing an employee for reputational risk. A number of cases have warned employers against accepting unsubstantiated allegations at face value, including criminal charges which may turn out to be unfounded so careful consideration should be taken to the particular circumstances. An employee should always have a chance to respond to the allegations and, where there are safeguarding concerns which are related to their work duties, it may be appropriate to suspend the employee on full pay during any investigation.

Employers should also be aware that, where the reputational risk relates to an employee’s private life, that any interference with their human rights must be proportionate and for the purpose of achieving a legitimate aim.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP.

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