When an employee is accused, charged, or convicted of a crime, it presents a complex challenge for employers. The situation requires a careful balance between legal obligations, the rights of the employee, and the interests of the business.
Initial accusation
Investigation
When an employee is accused of a crime, the employer should not assume guilt but should conduct a thorough investigation. This investigation should focus on the impact of the alleged criminal conduct on the employee's ability to perform their job and the potential wider impacts on the employer. Employers do not need to wait for a police investigation to conclude before taking action. Interim measures, such as suspension or removal from specific duties, may be appropriate, especially if the allegations raise safeguarding or regulatory concerns.
Fair process
Employers must follow a fair process and have a fair reason for any disciplinary action. The two most likely permitted fair reasons in this context are conduct and "some other substantial reason" (SOSR). The latter includes categories such as reputational risk, breakdown in trust and confidence, and irreconcilable differences among colleagues.
When an employee is charged
Increased pressure to act
When an employee is charged with a crime, the pressure on the employer to take action increases. However, being charged does not automatically justify dismissal. Employers should continue to follow a fair and reasonable process, considering the impact of the charges on the employee's ability to perform their job and the potential reputational damage to the company. Ongoing criminal proceedings may keep the employee away from work, complicating the situation further.
Suspension and communication
Suspension may be appropriate if the allegations are serious and could affect the employee's ability to do their job or pose a risk to other employees. Employers should document the reasons for suspension and ensure the employee is paid in full during this period. Clear communication with the employee about the process and their rights is crucial.
Conviction
Swift conclusion of disciplinary process
If an employee is convicted, the employer should seek to conclude the disciplinary process swiftly. If the employee is in custody and cannot participate in the process, they should be given the opportunity to make representations in writing. If the employee cannot or chooses not to engage, decisions can ultimately be made in their absence.
Frustration of contract
If the employee is in prison custody, they will not be able to perform their part of the employment contract, which may lead to the contract being terminated by operation of law (known as 'frustration'). This is not considered a dismissal, but it is recommended to complete the disciplinary process to ensure all legal bases are covered.
Balancing risks and responsibilities
PR and reputational risks
In high-profile cases, employers may need to act quickly to protect their business's reputation, even if it means accepting the risk of an unfair dismissal claim. Employers must balance the interests of the business, other employees, and the accused employee. Acting too quickly can have significant impacts on the employee's reputation and mental health, especially if they are later found innocent.
Duty of care
Employers owe a duty of care to all employees, including those accused of crimes. This includes taking reasonable steps to protect their mental and physical health. Employers should avoid knee-jerk reactions and ensure that any action taken is fair, consistent, and well-documented.
Practical tips
Clear policies: Have clear policies and expectations on conduct outside of work to underpin any action taken against employees accused of wrongdoing.
Avoid rushing: Take time to properly assess the risks and the best course of action.
Consistent practice: Apply a fair and consistent approach in line with disciplinary procedures.
Understand risks: Take a risk-based view of the best course of action, considering potential liabilities.
Additional considerations
Employers should also be aware of the implications of spent convictions and the Rehabilitation of Offenders Act 1974. Dismissing an employee based on a spent conviction can be legally problematic unless the role involves working with vulnerable groups or in certain regulated professions. Employers should also consider the impact of ongoing police investigations and the potential need to pause internal proceedings to avoid prejudicing the criminal process.
In conclusion, handling situations where an employee is accused, charged, or convicted of a crime requires a careful, balanced approach. Employers must navigate legal obligations, protect their business interests, and ensure fair treatment of the employee involved.
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