A man who successfully challenged his mother's final will is likely to recover the lion's share of...
Yes, you did read the heading correctly!
Ms Difolco (Ms D) was employed by Care UK Community Partnerships Limited since 2019 as a care home worker providing personal care to vulnerable residents of Cairdean Nursing Home.On 18 October 2022, she was arrested and charged with murder. Whilst she spent 30 hours in police custody, her daughter called the care home to say that Ms D was absent from work due to Covid.On 19 October Ms D attended court and was bailed. The Daily Record newspaper reported details such as her name, age and home town, but did not mention her employer.
On 20 October, her daughter informed the care home manager that her mother had been arrested and charged with murder. Ms D was then suspended on full pay pending an investigation into “a breakdown in trust in confidence and potentially bringing the company into disrepute…”
A fact-finding meeting took place one week later, to allow Ms D to explain the situation. She confessed that she hadn’t really been absent with Covid and admitted she had been in police custody. She also claimed that she was innocent and was: ‘having to wait till this nightmare ends’.
Then, on 31 October, an investigator appointed by the care home took a statement from Ms D and subsequently produced a report. The report concluded: ‘the evidence supports the allegation of breakdown of confidence and potentially bringing the company into disrepute as at no time were the management informed by Jacqueline of her arrest or the charges against her.’
Following the investigation it was concluded that there was a disciplinary case to be answered and she was invited to attend a disciplinary hearing on 14th November 2022. Following the hearing a decision was taken to terminate her employment with a payment in lieu of notice, the Chair stating: ‘I …find that due to you being named in the Daily Record newspapers article on 19th October stating that you are facing murder charges. This is regarded as a serious act which could potentially bring the company into disrepute’. It was also found that there had been a breakdown in trust and confidence because Ms D had not advised her employer of her arrest in January and because her daughter advised of her charge in October
Ms D appealed the decision and the hearing took place on the 8th of December 2022 The appeal chair discounted the allegation of a breach of trust and confidence due to conflicting versions of events, stating: ‘While the charges against you remain pending, I cannot be certain that the allegation of murder did not occur and therefore I do not believe it is appropriate for you to remain in a position of trust with vulnerable adults.’
The chair also added: ‘You have however potentially put Care UK at risk of potential reputational damage following the newspaper article issued in October whereby you were named…In conclusion therefore as you have been dismissed with notice and not for gross misconduct, I consider that being charged with murder is a substantial reason to dismiss’.
In the following years, Ms D battled with her mental health and was prescribed medication to help her deal with this. She commenced ACAS early conciliation at the beginning of 2023 and began Employment Tribunal proceedings on 14 April 2023, claiming unfair dismissal, failure to make reasonable adjustments and harassment. Almost a year later, on 21 March 2024, she was acquitted of her criminal charges but remained unfit to work.
The claims of harassment and failure to make reasonable adjustments were dismissed.
With regard to the unfair dismissal claim, the tribunal decided that Ms D’s dismissal was potentially fair due to the substantial reason related to reputational damage. However, because the risk of reputational damage and alternatives to dismissal were never discussed, the disciplinary procedure was deemed unfair, so the unfair dismissal claim succeeded.
This meant that Ms D was initially entitled to a basic award of £1,862.97, however the tribunal considered that if a proper discussion had occurred, she would have been dismissed due to the significant reputational risk and cost implications of indefinite suspension. So they concluded that “it would be just and equitable to reduce the compensatory element to nil”.
It might seem unbelievable that a tribunal would rule against an employer when the employee in question has been charged with murder. However, when an employee is charged with a criminal offence an employer does not automatically have the right to dismiss. The BBC's lengthy handling of the Hugh Edwards case is a recent example of this.
An employer is obliged to carry out a thorough investigation into the likely outcome of any charge and the reputational damage it might cause to the employer. At the same time, they cannot interfere with any criminal investigation. Employers do not have to wait for the outcome of any criminal trial but simply need to investigate fairly and discuss possible sanctions with the employee. In this case the employer failed to discuss the reputational risks with the employee at the disciplinary interview and appeal. As an employer you need to state the obvious and give the employee the opportunity to state their case. In this instance no consideration was given to any alternatives to dismissal. The tribunal agreed that dismissal was the appropriate sanction however the employer failed in terms of the way they conducted themselves during the disciplinary process.
If you need advice on disciplinary matters, contact Joanna Robson on 01827 317092 or jrobson@pickerings-solicitors.com.
