What position should an employer take regarding an employee who has committed a criminal offence outside of work?
We are all aware that, when someone is charged with a criminal offence, they are innocent until proven guilty. Any dismissal will be unfair unless it is for one of the statutory fair reasons and as employer you act reasonably in all the circumstances.
If an employee is convicted of a criminal offence occurring outside work, a dismissal is only likely to be fair if that criminal offence has some material impact on the employee’s ability or suitability to do their job or affects their acceptability to other employees to a material extent.
ACAS has made it quite clear that just because an employee has been charged or convicted with an offence, you may not be entitled to discipline or dismiss them, unless it has a direct impact on the employment relationship. This is the case even if the employee has been remanded in custody. However, this does not mean that you have to turn a blind eye to the events which have happened. You may feel that, in the circumstances, the offence is so serious that even though it was committed outside the employment, it still has a material impact of the employee’s ability to do their job and warrants discipline or dismissal.
What Should Employers Do?
If you wish to take action, the first step is to check your disciplinary policy to see whether being charged with or convicted of a criminal offence specifically amounts to a disciplinary offence, or, alternatively, an offence amounting to gross misconduct.
It may be reasonable in the circumstances to commence disciplinary action in accordance with your company policy.
Follow a Fair Procedure
Before taking any decision about disciplinary action or dismissal you must carry out an investigation of your own into the offence which the employee has committed. It is important that the employee is given sufficient time and opportunity to answer the allegations against them, including having sight of any witness statements. You must consider whether the employee’s charges or conviction have an impact on the employee’s employment.
You should consider factors including:
- Is there a direct relation between the criminal conduct and the job that the employee carries out? Would the offence render the employee unsuitable to continue in the job?
- Does the criminal conduct pose a risk for the employer’s reputation?
- Would retaining the employee lead to a breakdown in relations between them and their colleagues?
- The likelihood that the employee will commit similar offences within their employment (especially where dishonesty is concerned).
- Could the use of appropriate safeguards mean the employee can remain in post?
Remember, each case will need to be looked at on its own facts.
Finally, make sure you follow the ACAS Code of Practice.
What are the Likely Outcomes?
If an employee receives a custodial sentence, then dismissal is likely to be the only option as they will no longer be capable of performing their contractual duties.
If the employee’s conviction leads to a non-custodial sentence, then the prospect of the employee retaining their employment may be unlikely, but it’s important to remember that the employee is still entitled to reasonable treatment from their employer. A criminal conviction should not automatically result in the employee losing their job and you should not immediately take this course of action. All employers have a legal duty to act responsibly, follow their own procedures and avoid a ‘kneejerk’ reaction.
Even when the staff handbook or company policy dictates that a particular act will justify dismissal, you must still carry out a proper investigation and decide whether, in the specific circumstances, they want to take a considered decision to dismiss.
Alternatives to Dismissal
In order to ensure that any dismissal stands a good chance of being seen as fair by a Tribunal, you should check to see whether it is possible for a lesser sanction to be imposed, including alternative work, albeit work for which the employee is still qualified. There might be no alternative work available but a recorded investigation into the possibility of this would stand you in good stead if a claim is taken to a Tribunal.
Factors That May Affect the Tribunal’s Decision
There are certain types of offence that tribunals are likely, though not certain, to accept are fair grounds for dismissal. These will be, for the most part:
- Crimes of violence,
- Dishonesty; and
- Sexual offences.
Other factors that may be taken into consideration by the Tribunal when considering a claim of unfair dismissal will include the size and nature of the business, how practicable it would be to carry out a full investigation, the degree to which the business could cope with an employee who is liable to be absent for a long period of time and what provisions there are in the staff handbook.
Some Key Tips
- Avoid a knee jerk reaction. One of the biggest mistake’s employers make is to act quickly, without thinking through the consequences and what procedure they need to go through.
- Look at the employees’ contract and see whether there are any duties that they have violated with their conviction and check your disciplinary procedure to see what examples constitute gross misconduct. For example, do you list that an offence which could be regarded as gross misconduct are any actions that bring the company into serious disrepute whether during or outside normal working hours?
- If you do take disciplinary action, make sure you follow your disciplinary procedure carefully making sure that you have undertaken a reasonable investigation into the facts, given the employee a reasonable opportunity to prepare for the hearing, and then allowed them to be accompanied, etc.
- Remember it’s not enough to have a fair reason to dismiss, it’s also important to act reasonably in the circumstances. If you are claiming that their criminal conviction is damaging the reputation of your organisation, make sure you have clear documentation that demonstrates this.
If you need any advice or assistance in relation to dismissing an employee who has being charged with or convicted of a criminal offence, please do not hesitate to contact me on 01133 50 40 30 or at email@example.com.
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SCE Solicitors is a boutique employment law and dispute resolution practice based in Leeds which advises clients nationwide. Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.