What to do when an employee has committed a crime?
If an employee is convicted of a crime, an employer still needs to follow a fair process to dismiss the employee.
In connection with treating the conviction as reason to dismiss, the ACAS Code of Practice on Discipline and Grievance states that: “Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do their job and their relationship with their employer, work colleagues and customers.” It is common practice for employers’ disciplinary policies to include, as a disciplinary allegation, being charged or convicted of a criminal offence as misconduct or gross misconduct within the standard terms of all their employee’s contracts of employment.
Whilst it is understandable that employers would want to immediately dismiss an employee once they have been charged with a criminal offence, employers should still follow a fair process in most circumstances.
For a dismissal to be fair, it has to be for one of the statutory fair reasons; capability, conduct, redundancy, statutory (ie. a driver who loses their driving licence) or some other substantial reason. The criminal offence would fall into the conduct category.
In the majority of cases, if an employee has been charged with a criminal offence, the employer will have grounds to dismiss due to the conduct of the employee. At the outset, it is important to consider the length of service of the employee in question. If the employee does not have over two years service then they will not legally be able to bring an unfair dismissal claim at the Employment Tribunal. In instances where this situation applies, an employer may choose to dismiss the employee without demonstrating that a full fair process had been followed.
So what is a fair process?
The key principles in assessing procedural fairness in misconduct cases are that:
- The employee should know the case against them.
- The employee should know that they are at risk of dismissal.
- The employee should be allowed to make representations (usually at a disciplinary hearing).
- The employee should be allowed a right of appeal.
- The Investigation: A cautionary tale
Whilst carrying out a fair process is important, in certain circumstances an employer should ensure that any investigation does not result in the employer themselves becoming involved in any police investigation that may already be taking place. Employers could find themselves liable for ‘tipping off’ an employee who is the subject of a police investigation if they include sensitive information within their own internal investigations which the employee becomes aware of. It may be appropriate to suspend the employee whilst an investigation is carried out by police, in this instance, to avoid complications and the employer becoming too involved with the police process.
Once it has been established that an investigation can be carried out, it is important that the employer carries out a fair investigation into the conduct of the employee. As well as investigating the situation, a fair process should include consulting with the employee and giving the employee an opportunity to state their case.
So what do we need to show?
Above all, the employer must be able to demonstrate that they believed the employee was guilty of misconduct at the time of dismissal and that this was the principle reason for the dismissal.
The deterrent effect of taking effective measures to deal with a wrongdoer is important in preventing fraud and other criminal activity within the workplace. Additionally, acting reasonably and not rashly when faced with a situation where an employee may be under arrest is crucial to protect an employer’s legal position going forward.
What practical steps should employers take?
To avoid being exposed to any unfair dismissal claims employers should:
- provide detailed disciplinary guidelines and procedure and regular training so that employees are made aware of the procedure and their rights.
- In the event that an employee is involved with criminal proceedings, conduct a through internal investigation, ensuring that the internal investigation won’t affect any police investigation.
- Carry out a fair process.
For more information on this topic, or any other employment law queries, please contact Jon Taylor or you can give us a call on 0345 070 6000.