28th August 2024
Employee Unfairly Dismissed Despite Not Declaring Murder Charge
A care assistant who failed to disclose that she was charged with murder has won an unfair dismissal case at the Edinburgh Employment Tribunal. The tribunal found that her employer, Care UK Community Partnerships, failed to properly assess the risk of reputational damage before terminating her employment.
In October 2022, Jacqueline Difolco, who worked at Cairdean House in Edinburgh, was arrested and charged with murder. Following her arrest, her daughter informed Care UK that Difolco would be absent from work due to COVID-19. Shortly after, the care home manager learned from Difolco’s daughter that she had been charged with murder. Difolco was suspended on full pay pending an investigation.
Care UK’s disciplinary policy requires an investigation into the facts when an employee faces criminal charges before deciding on any disciplinary action. Despite this, the investigation focused only on Difolco’s failure to report her arrest. Care UK ultimately dismissed her, citing potential reputational damage and a breakdown in trust due to her failure to disclose the charges earlier.
Difolco appealed the dismissal, but Care UK upheld its decision, emphasizing the risk of reputational harm and the seriousness of the charges. The tribunal, however, found that Care UK did not adequately explore the risk of reputational damage or consider alternatives to dismissal, such as discussing the matter directly with Difolco. The tribunal concluded that the dismissal was unfair because it fell outside the range of reasonable responses.
While the tribunal upheld Difolco’s unfair dismissal claim and awarded her a basic award of £1,860, it reduced any compensatory award to nil. The panel reasoned that even if Care UK had discussed the reputational risk with Difolco, the dismissal would have likely been fair due to the unmitigable reputational risk and the costs associated with her indefinite suspension.
