Jacqueline Difolco was arrested and charged with murder, along with two other defendants, in October 2022.
The Daily Record newspaper reported the incident, which prompted employer concerns about a breakdown of trust and confidence, and potential reputational damage.
Difolco was dismissed but the tribunal ruled this was unfair as the company did not properly investigate whether the charges could reasonably cause reputational damage to the organisation.
Pam Loch, founder of the law firm Loch Associates, told HR magazine that this case showed the importance of a fair dismissal process.
She said: "This case highlights the necessity of undertaking a fair and reasonable disciplinary process, even when there are ongoing criminal proceedings.
"Employers should avoid jumping to conclusions, especially in the absence of supporting evidence, and they should pause before assuming that there is an automatic risk to reputation. It’s necessary to assess the reality of any potential and genuine risk to reputation before this can be relied upon as a reason to dismiss someone."
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Difolco was employed as a care assistant at residential nursing care provider Care UK, from October 2019 to November 2022.
In October 2022 she was arrested and charged with murder and held in police custody for 30 hours. Her daughter went into the care home her mother worked in, to report her mother as sick with symptoms relating to Covid-19.
The next day, Difolco appeared in court, where the charges against her were reported on by the Daily Record newspaper. The report included Difolco's name and hometown, but not the name of her employer.
Her daughter returned to the care home and told her mother's manager, Gillian Goodall, that her mother had been arrested and charged with murder.
Difolco was then bailed, along with the other defendants. On the same day, she was suspended from Care UK on full pay.
She was told that a disciplinary investigation would be launched into the breakdown of trust she had caused by not informing them of the charges against her, as well as the potential disrepute that the charges could bring to the company.
Care UK had a disciplinary policy that stated when an employee was the subject of a criminal charge it would, where possible, investigate the facts before deciding whether to take formal disciplinary action.
It also said that the company would not wait for the outcome of the prosecution before deciding what action to take itself, and the charges could be considered a disciplinary matter if it was relevant to the employees’ employment.
Difolco was invited to an investigatory meeting, where she explained that she was first arrested for murder in January 2022 but was not charged until October 2022.
She then admitted that she did not have Covid but was arrested, pending a preliminary hearing scheduled for 29 November. Difolco also said she was innocent, and was waiting for the “nightmare” to end.
Goodall was also consulted, who said that Difolco had told her before October that her phone had been taken by the police as evidence, but didn’t state why.
The investigation report stated that “at no time were management informed by Jacqueline of her arrest or the charges against her”.
Difolco was then invited to a disciplinary hearing on 14 November, where regional director Samantha Rogan decided to terminate her employment due to the being named in the Daily Record article in relation with murder charges.
“This is a serious act which could potentially bring the company into disrepute,” Rogan stated. She reported a breakdown of trust and confidence because Difolco had not told the company of her charge.
Difolco appealed the dismissal, but in an appeal investigation by another regional director, Michael Doolin, it was decided that the risk of reputational damage remained.
Doolin said that he couldn’t be certain the allegations of murder did not occur, and it was therefore inappropriate for Difolco to remain around vulnerable adults.
“I consider that being charged with murder is a substantial reason to dismiss,” Doolin said in an outcome letter.
The tribunal heard from Rogan and Doolin, who explained that the dismissal was because of their concern over reputational damage, as residents or relatives of residents, and staff, could read the newspaper report.
Doolin told employment judge Sutherland that he had considered alternatives to dismissal, but that transferring her to another role would not mitigate reputational risk and suspending her would give rise to significant agency costs as he could not predict how long it would take for the trial to conclude.
After looking at evidence, however, the tribunal noted that Care UK’s disciplinary hearing focused on Difolco’s failure to report the arrest and charges against her, but did not investigate the potential for reputational damage.
Sutherland suggested Rogan and Doolin’s evidence “suggested a degree of retrospective consideration and discussion” of the risk for reputational damage, but this was not assessed in the investigation itself.
While Sutherland acknowledged the dismissal was due to a “substantial” reason, it said that the investigation failed to discuss alternatives with the claimant and this amounted to unfair dismissal.
“We do not consider in the circumstances that any large employer with a dedicated HR function acting reasonably in the circumstances would have taken the decision to dismiss by reason of the risk of reputational damage without having first discussed the matter with the claimant,” Sutherland said.
The tribunal report noted that the dismissal would have been fair if there was a significant risk of reputational damage that arose from the charge.
If Care UK had discussed this risk with Difolco, the dismissal would have been fair, Sutherland explained, as she cared for vulnerable individuals that could be removed by relatives if they became aware of the charges.
The tribunal decided she was entitled to an award of £1,862.97 for her loss of earnings, but because she would be dismissed either way Sutherland reduced this to nil.
Difolco was later acquitted of all charges.
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Matt Jenkin, employment partner at Herrington Carmichael LLP, told HR magazine employees do not have a legal obligation to disclose criminal charges.
He explained: "Outside of any provisions in the contract of employment, there is no general obligation for an employee to disclose to their employer once they have been charged with a criminal offence. As such, employers may be unaware of any issue until there has been a conviction."
This can make it difficult for employers to respond correctly to employees whose charges come to light.
He continued: "Employers who decide to act at an early stage citing reputational damage face having that decision scrutinised by the employment tribunal. Risks of reputational damage need to be properly considered and explained to the employee as part of any dismissal decision.”
Loch noted that employers should be able to demonstrate the impact that criminal charges could have on employees' work before dismissal.
"Criminal proceedings in themselves will not automatically render it reasonable or fair to dismiss an employee. Employers will need to investigate fully and show that any dismissal was within the ‘band of reasonable responses'," she said.
"It will be necessary to consider what the effect of any charge or conviction may have on the employee’s ability and compatibility to continue to do their job, as well as upon their relationship with their colleagues."
