Employees who are suspected of criminal offences can cause particular issues for employers. Often, the initial reaction is to dismiss the employee. However, employers should take a step back, assess the overall situation and proceed cautiously.
An offence may be committed by the individual either at work or outside in their own time and different considerations can apply to each situation.
If the offence occurs at work, the employer may have to decide whether to report what has occurred to the Police. This will often be the best course, particularly if there is significant dishonesty or violence that has resulted in injury. In cases of dishonesty, insurers will expect a report to be made, and, in relation to incidents of injury, there is a need to be seen to protect the interests of other employees or third parties. On the other hand, the Police may bring the offence to the attention of the employer, for example, when an employee is arrested in connection with theft of the employer’s property.
If the offence occurs outside of work, the employer must assess the effect a charge or conviction has on the person’s suitability to remain in their job. This involves looking at all the relevant factors such as the individual’s seniority and role and the nature of the employer’s business.
Whilst the criminal and employment aspects of a case may be connected, they are separate. In the criminal context, wrongdoing has to be proved beyond reasonable doubt. For a dismissal to be fair, the employer has a lower threshold – there must be a genuine belief as to the wrongdoing based on reasonable grounds.
If there is to be a dismissal, there will, in all but exceptional cases, need to be some form of investigation followed by a disciplinary process. It is not necessary for the employer to wait until the end of any criminal proceedings and, in fact, this may result in undue delay. However, to proceed to dismissal, the employer must have sufficient evidence to justify this. This evidence may come from a number of sources even if the individual is not prepared to participate for fear of prejudicing their criminal trial.
If the employee has been remanded in prison pending their trial or has been sentenced to custody, there may be an option to dismiss because the employee is unable to attend work rather than in relation to the offence. However, employers should obtain more information rather than making assumptions – even if there is an initial remand, bail may be granted or the sentence may be of short duration.
If the individual is detained in custody, steps should be taken to contact them to ask for their input into any investigatory or disciplinary process – written comments and representations can be requested. This is all part of showing that there has been a fair process.
These cases undoubtedly present challenges but can be dealt with by taking a balanced approach and seeking advice at an early stage.
Author: Sara Morgan
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to McCormicks Solicitors directly.
Published on 18th December 2015
(Last updated 28th March 2018)