A care assistant who failed to disclose that she had been charged with murder has won her claim for unfair dismissal at Edinburgh Employment Tribunal.
The judge said that her employer Care UK Community Partnerships, which employs more than 10,000 people at 150 residential care homes, had failed to properly investigate whether the charges would cause damage to the group’s reputation.
The case highlights the dilemma faced by employers when an employee faces criminal charges as illustrated this week in the case of former newsreader Huw Edwards and the BBC’s decision to suspend him on full pay after the broadcaster learned of his arrest in November 2023.
Jacqueline Difolco worked for Care UK at Cairdean House, Edinburgh, in 2019, providing personal care to vulnerable residents until her dismissal in November 2022.
Murder charge
In October 2022 she was arrested and charged with murder along with three other defendants following a Police Scotland investigation. Difolco was held in custody for 30 hours, and her daughter reported to Care UK that her mother would be absent from work due to Covid. She was later acquitted of all charges.
The following day Difolco appeared in court where she was bailed, together with her co-defendants. The Daily Record newspaper reported the case, confirming Difolco’s name, age and home town, but did not refer to her job or employer.
Her daughter visited Cairdean House the next day and informed the care home manager that her mother had been arrested and charged with murder.
Difolco was suspended on full pay, pending an investigation 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 employment tribunal heard that Care UK’s disciplinary policy provided that where an employee is the subject of a criminal charge it will, where possible, investigate the facts before deciding whether to take formal disciplinary action. It would not usually wait for the outcome of any prosecution before deciding what action, if any, to take, and where it relates to conduct outside of work it may be treated as a disciplinary matter if it is considered relevant to their employment.
Unfair dismissal
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A week later, Care UK held a fact-finding meeting with Difolco, who explained she was first arrested for murder in January 2022 but was not charged until October 2022.
The care home manager was also interviewed, and she said Difolco had told her before October that police had taken her phone as evidence but did not state why.
Difolco admitted she did not have Covid but had instead been in a police cell. She told management there would be a preliminary hearing on 29 November and she was awaiting a trial date. She stated she was innocent and had to wait until “this nightmare ends”.
The investigation report stated that “at no time were management informed by Jacqueline of her arrest or the charges against her”.
Care UK’s disciplinary hearing found the murder charge was a serious act which “could potentially bring the company into disrepute” and that there had been a “breakdown in trust and confidence” because Difolco had not reported her arrest to management in January.
Difolco’s employment was terminated with a payment in lieu of notice.
Difolco appealed the dismissal, but regional director Michael Doolin decided that the risk of reputational damage remained. He said: “Whilst 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”
“I consider that being charged with murder is a substantial reason to dismiss,” Doolin added.
Tribunal findings
The employment tribunal found that the investigation and report made “no assessment of any risk of reputational damage” and that “alternatives to dismissal were not considered in discussion with the claimant”.
The panel said: “While the Acas Code does apply not (because the reason was not disciplinary in nature), the underlying principles of natural justice may do so. Although on the face of it there was a procedure (being an investigation, hearing and appeal), that procedure in reality applied only to the failure to report.”
The tribunal did not consider 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.
“Even where the risk is reasonably obvious there requires to be adequate exploration of the matter including the alternatives to dismissal,” said the judgment. “The failure to discuss the risk of reputational damage with the claimant meant that there was no adequate exploration. We do not consider in the circumstances that any such discussion would 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.”
It concluded: “Dismissing the claimant because of the risk of reputational damage without prior discussion with her fell out with the range of reasonable responses and was accordingly unfair.”
The judge awarded a basic award of £1,860, but reduced any compensatory award to nil because even if the risk of reputational damage and the alternatives to dismissal had been discussed with the claimant, she would have been dismissed in any event, and that dismissal would have been fair. The panel cited that the reputational risk could not be mitigated by transferring her to another role and the uncertainty and significant cost implications of her indefinite suspension, pending the outcome of the criminal trial.
The complaint of unfair dismissal was upheld, but other complaints of discrimination were not.
Huw Edwards and the BBC
Rob McKellar, legal services director at Peninsula, said: “The Difolco case clearly demonstrates how the law and the public interest are not always aligned. This may shed some light on the BBC’s decision to act cautiously in not dismissing Huw Edwards when they became aware of the police investigation into child pornography offences.
“Whereas in Difolco the employee had actually been charged, albeit not convicted, in Edwards’ case the matter was still at the investigatory stage up until last week.
“Had the BBC decided to dismiss Huw Edwards when it was notified of his arrest in November, it may have found itself using taxpayers’ money to defend and potentially pay out on an expensive lawsuit.”
But McKellar added this does not mean that employers cannot dismiss for reasons of reputational damage or public interest. The law says there are five fair reasons for dismissal and misconduct is only one of them.
“Employers can also dismiss on the grounds of some other substantial reason (SOSR). The legal test for deciding whether an SOSR dismissal is a fair one is whether or not the employer followed a fair process and whether it acted reasonably in reaching the conclusion it did.”
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