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Jacqueline Difolco v Care UK Community Partnerships Ltd

In this case, a care home worker charged with murder was ruled to have been unfairly dismissed.

This came after the tribunal found failures in the respondent’s disciplinary procedure. Despite this, they reduced the compensatory award to nil, believing that the worker would have been dismissed if a proper procedure had taken place.

Care home worker charged with murder

Jacqueline Difolco (“The Claimant”) began working for Care UK Community Partnerships Ltd (“The Respondent”) on 2 October 2019. She was employed as a care assistant, providing personal care to vulnerable residents of Cairdean Nursing Home.

On 18 October 2022, the care home worker was arrested and charged with murder. Whilst she remained in police custody for 30 hours, her daughter reported that her work absence resulted from Covid.

The following day, the claimant attended court before subsequently being bailed. News of the arrest, including the claimant’s name, age and hometown, was reported in a national newspaper, however the identity of their employer was not.

“As a responsible employer we cannot allow people to work if they are not well, whether it's from home or in the office. In order to work you need to feel well mentally and physically and to be fit to fulfil all your duties and responsibilities that come with your role. If you are not well you should not be working.”

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Jacqueline Difolco v Care UK Community Partnerships Ltd

Respondent dismisses claimant

On 20th October, the claimant’s daughter informed the respondent’s home manager that her mother had been arrested and charged with murder.

As a result of the daughter’s disclosure, the claimant was suspended on full pay, pending an investigation into what the respondent referred to as “a breakdown in trust in confidence and potentially bringing the company into disrepute following your arrest and appearance in court for facing murder charges”.

Seven days later, a fact-finding meeting took place, where the claimant had to explain her situation. She confessed that she hadn’t been absent with covid but had been in police custody for 30 hours.

Despite this, she protested her innocence and explained that she had to wait for this nightmare to end.

Jacqueline Difolco v Care UK Community Partnerships Ltd

Then, on 31st October, an investigator assigned to the case by the respondent produced their report. They detailed that since the claimant had been deceitful in her work absence and arrest, there had been a breakdown in trust.

This led to the claimant’s invitation to a disciplinary hearing to discuss the allegation that there had been a “serious act causing a breakdown in trust and confidence and potentially bringing the company into disrepute including failure to report circumstances concerning arrest and court appearance for serious charges including murder”.

Despite the allegation relating to “bringing the company into disrepute”, there was no discussion in the hearing of the risk of reputational damage resulting from the claimant’s arrest and murder charge.

The claimant was dismissed with notice.

Employment tribunal claims initiated by care home worker

After the claimant’s sacking, she visited her GP on 18 November. She had been suffering from anxiety, which had resulted from her employment termination and the ongoing criminal charges. She also appealed the respondent’s decision, but this was upheld in a meeting on 8 December. Again, reputational damage was cited as the reason for their decision.

In the following years, the claimant 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 initiated employment tribunal proceedings on 14 April 2023.

The care home worker brought claims of 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 Employment tribunal’s judgment

The claims of harassment and failure to make reasonable adjustments were dismissed. The harassment claim related to an incident where a colleague of the care home worker had allegedly felt her breasts.

However, because this incident fell outside the required timeframe, the tribunal didn’t have the jurisdiction to rule upon it.

As for the claim for failure to make reasonable adjustments, this concerned the claimant’s osteoarthritis. The tribunal recognised that she’d had this disability since at least 2020.

Yet, because the claimant never informed the respondent about it nor how it impacted her work, they found no failure on the respondent’s part to make reasonable adjustments.

It was held that no large employer with a dedicated HR function (as was the position of the respondent) acting reasonably in the circumstances would have dismissed by reason of the risk of reputational damage without having first discussed the matter with the employee, and as such the decision to dismiss fell outside the range of reasonable responses and was therefore unfair.

Subsequently, the claimant was initially entitled to a basic award of £1,862.97.

Nevertheless, the tribunal considered that if a proper discussion had occurred, the claimant would have been dismissed due to the significant reputational risk and cost implications of indefinite suspension.

As such, they “concluded that it would be just and equitable to reduce the compensatory element to nil”.

Takeaway points

This case is a timely reminder for employers not to jump to dismissal when it comes to employees being arrested or investigated by the police.

Whilst it is understandable that employers would be concerned by such events, and the damage the continued employment of the individual could do to their reputation, this does not override the need to follow the principles of natural justice, and the requirement to be fair and reasonable as set out in the ERA 1996.

As the case clearly shows, it is possible to obtain a fair dismissal because of reputational damage caused by an employee’s actions outside of work.

However, the reasonableness of this dismissal will depend on the nature of the organisation, the employee’s role in it and any links that can be made back to the employer. These concerns should be shared with the employee and meaningful discussion needs to take place into the impact their actions could have or have had on the business, and why this causes such concern for the organisation.

Only after having such discussions with the employee, and exploring any alternatives there might be, should employers consider progressing to dismissal.

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