Employee unfairly dismissed despite concealing arrest for murder

In the case of Difolco v Care UK Community Partnership Ltd, a care assistant who worked with vulnerable residents in a care home was found to have been unfairly dismissed even though she had not disclosed to her employer that she had been charged with murder.

The employer understandably feared for the safety of its service users and the damage to its reputation should it continue to employ her. However, it did not discuss these concerns with the employee before terminating her employment and thus Edinburgh Employment Tribunal found that she had been unfairly dismissed.

This is an interesting case and even more so when you delve into the detail. Ms Difolco had worked in the care home since 2019 and, in late 2022, was held in police custody for 30 hours before being bailed. During this time her daughter had told her employer (Care UK Community Partnerships Ltd) that she was absent due to COVID. However, the truth later reached her employer that she had in fact been arrested for and charged with murder. Her details appeared in a national newspaper, and she was suspended on full pay pending an investigation.

A meeting was held in which Ms Difolco admitted she had not been absent with COVID and that she had been in police custody. She also claimed her innocence in respect of the murder charge. She was told that she was being investigated (and later disciplined) for failure to advise her employer of her arrest. She was subsequently dismissed and her employer concluded that it was not appropriate for her to remain in a position of trust with vulnerable adults. Further, she had put Care UK at risk of potential reputational damage following the newspaper article in which she was named. The problem was that the employer had not discussed these issues with her at the investigation, disciplinary or appeal stages. Instead, they had focussed on the failure to tell them she had been arrested and instead told them (falsely) that she was ill.

The key thing to take from this unusual case is that however stark the facts might appear and how grave the situation is, following a fair process and in line with the ACAS codes is paramount. The employee must be told of the allegations against them and offered the right of reply. In this case, the employee was not told about the risk to reputation and yet it was used as a reason to dismiss her.

Key considerations for employers

• Remember that an employer must always carry out a thorough investigation and put the allegations to the employee via the disciplinary process (this will include offering them the right of accompaniment and giving adequate notice plus detail of what the allegations are and what the sanction could be).
• An employer in this situation must be careful not to interfere with any ongoing Police investigation but leaving the employee on paid suspension is hardly ever an appealing prospect given how long the criminal proceedings could take and the damage to reputation in the meantime.
• It is therefore not necessary for the employer to await the outcome of any criminal trial, but they must adhere to the ACAS codes of practice in terms of discussing the allegations and any possible sanction with the employee before terminating employment. If more than one ground of dismissal is being contemplated, the employee must be notified of each one.

Although a basic award of almost £2,000 was awarded, the compensatory element, in this case, was reduced to zero given that the Employment Tribunal was successfully persuaded that if proper procedure had been followed, the employee would have been fairly dismissed. However, the employer will have had to incur substantial costs to reach this judgment and is unlikely to have wanted to settle. Although it had initially wanted to avoid reputational damage, it became engaged in prolonged litigation that was on public record. This is therefore a sombre lesson in the importance of following a fair procedure, even when the reason for dismissal seems so clear.

Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting one of our legal experts.