How to deal with employees who may have committed criminal offences or who are facing charges

In this article solicitor Laurence O'Neill explores employment law relating to dismissing staff

Laurence O'Neill
Laurence O'Neill

Last month Third Sector reported that Philip Wrench, the former branch treasurer at MS Society, was sentenced to 16 months in prison at Chester Crown Court after pleading guilty to fraud by writing himself 71 cheques amounting to nearly £27,000. 

Dealing with these matters is not straightforward. For example, when should an employer involve the police? Can it carry out a disciplinary investigation alongside an ongoing police investigation? And when is it appropriate to dismiss? These are all important things to get right: get them wrong and employers could find themselves facing tribunal claims, not least for constructive and unfair dismissal that could result in significant financial awards.

When to involve the police

According to the 2012 Court of Appeal case Crawford and another v Suffolk Mental Health Partnership NHS Trust, an employer should not refer an employee to the police unless it has first carefully considered the conduct and arrived at a genuine and reasonable belief that the conduct, if proven, might justify the label 'criminal'. This is not to say that employers should become experts in criminal law but only that they should not make frivolous or ill-considered reports to the police. In most cases it will be obvious whether conduct is likely to be criminal. However, where the matter is not so obvious or where employers are operating in particularly sensitive sectors (such as the care sector) and are particularly concerned to get things right, legal advice should always be sought.  

Whether to take disciplinary action

If an employer becomes aware that one of its employees may have been involved in criminal conduct it does not necessarily mean that it would be justified in taking disciplinary action. According to the Acas Code, consideration needs to be given to what effect the conduct has on the employee's suitability to do the job and their relationship with their employer, work colleagues and customers.

The bottom line is that criminal conduct carried out in the course of employment, or which damages the employer’s reputation or reasonably calls into question an employer’s trust and confidence in the employee, is likely to justify disciplinary action. However, as the Acas guide puts it, "off-duty conduct which has no bearing on employment is unlikely to justify disciplinary action".

Whether to proceed with a disciplinary case where a criminal investigation is ongoing

Very often employees will either be unwilling or unable to participate in disciplinary proceedings while criminal charges are pending. However, there is no rule that an employer should continue to employ and pay them until the criminal matters are concluded. After all, that could take some time.

Ultimately, will be for the tribunal to consider whether the employer acts reasonably in proceeding with disciplinary action. Factors such as the size and nature of the employer’s business, and whether it could reasonably cope with the employee’s continued absence will be considered, as will any provisions of the employer’s handbook. 

Where an employer decides to proceed in such circumstances it should at least warn the employee that it is considering taking disciplinary action and give the employee the opportunity to present a case. It should also conduct its own investigation into the matter. An employer may make use of information made available to it through a police investigation but will be expected to undertake its own investigation rather than just relying on what the police say.

Will it be fair to dismiss?

In deciding whether a dismissal in such circumstances is fair, the tribunal will have regard to the Acas Code – whether the charge or conviction affects the employee's suitability to do the job or their relationship with their employer, work colleagues or customers.

In that assessment, context might be relevant. For example, a charge of cannabis possession might be serious enough to warrant the dismissal of a high school teacher in charge of impressionable teenagers but it might not in the case of a back office warehouse administrator. Whether the charge is relevant to the nature of the work will also be considered. For example, a charge of shoplifting might be particularly relevant to the work of a retail assistant, but less so to the work of an isolated laboratory technician. Reputational risk will also be a factor. Tribunals have upheld as fair dismissals of employees facing charges of murder and sexual abuse, even where no case was ever proved against them.

Ultimately, whether a dismissal is fair will come down to whether the tribunal finds that dismissal is within the range of reasonable responses open to a reasonable employer. The more the employer is able to show that it has thought about the offence and taken a considered and reasonable view as to why the continued employment relationship is untenable the more likely any subsequent dismissal is to be fair. As always, when in doubt legal advice should be sought.

Laurence O'Neill, solicitor, employment department of SGH Martineau

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