It’s been one of those weeks. Lots of interesting HR challenges to keep us on our toes and our pencils sharpened and dealing with an employer whose staff member had been arrested the night before was one such challenge as its not every week it happens.
Case it should happen to you, here’s some notes.
Employers will always face difficult decisions when an employee is arrested on suspicion of, or charged with, a serious criminal offence that is unconnected with work.
In our experience these things will happen at the most inconvenient time, such as when a Director is on holiday or otherwise unavailable.
First off, arrest isn’t charged. Let’s look what happens when someone is arrested.
Arrested and in custody
When an employee is arrested or remanded in custody, particularly as a result of circumstances that occur outside the course of their employment, employers should avoid treating this as an automatic reason for dismissal.
The employer must consider whether the offence is one which has, or could have, a direct effect on their employment.
They will then need to decide, having investigated and considered all of the facts, whether or not it is reasonable to instigate the company’s disciplinary procedure.
Make sure that you log the contact you have from your employee, if they are reasonable, they will contact you and let you know what’s happening.
Consider whether it is appropriate to suspend the employee while the criminal investigation is ongoing. If the allegation is serious this will almost always be the case. You should confirm the terms of the suspension in writing and review these at regular intervals.
You might not be able to see the employee, and if you post the letter, it should be to the address you have one file, regardless of whether you think they are there or not.
If the criminal allegation is for fraud and the individual is a senior member of your accounts department, it would almost always be appropriate to suspend the employee immediately pending an internal and a criminal investigation.
Conversely, if the allegation is one which involves poor judgment rather than serious criminal intent (such as recreational Class C drug possession) and which does not otherwise impact on the employment relationship, it may not be appropriate to suspend the employee. Each case must be considered on its facts. It depends on many factors, such as the work someone does and the possible impact.
Third parties including other staff
Consider very carefully any statements you make to third parties, such as the media, and take specialist advice about these. Unnecessary disclosure of information to the public by the company could result in a defamation or constructive unfair dismissal claim if the employee is subsequently acquitted or the charges are dropped.
Keep everything confidential. Don’t allow allegations to be spread at work. Don’t allow staff to comment on social media about the allegations to a colleague.
What if an employee is remanded in custody?
This is in some ways easier for the employer. The employer doesn’t have to pay the employ when they are remanded. If the employee is remanded in custody pending a criminal trial (and you have not dismissed them) you do not need to pay them. This was confirmed by the Employment Appeal Tribunal in Burns v Santander UK Plc.
In such a case the employer can afford to take their time and consider whether in accordance with the needs of the business, whether or not the employee’s position can be kept open. The indicator for this is how long the employee is likely to be remanded in custody.
In circumstances, where it is not possible for the position cannot be kept open pending the employee’s release, employers are advised to follow a fair procedure and terminate the employee’s employment for some other substantial business reason, i.e. that the employee is unable to attend work, rather than going down the disciplinary route.
As with any potential dismissal for some other substantial reason, an employer should be satisfied that dismissal really is the last resort.
The employee should be informed of the process and encouraged to participate as far as he or she is able. For example one way if for them to be encouraged to appoint a representative to attend meetings on their behalf or be given the opportunity to provide written representations to be considered before any decision is reached.
Disciplinary action where direct effect on employee’s work
If the crime has a direct effect on the employee’s work – for example a driver charged with dangerous driving, or an accountant charged with fraudulently obtaining monies, an employer may consider taking disciplinary action up to, and including, dismissal.
The ACAS Code states that “if an employee is charged with, or convicted of a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers”.
You should consider what the employee is alleged to have done, and the terms of their contract as well as those of your disciplinary policy. Regardless of whether or not the employee is eventually convicted (or not) for the criminal allegation put to them, if their actions have otherwise brought the company into disrepute, or led to a breakdown in trust and confidence, disciplinary action may be necessary and appropriate. You may also consider that the employee’s actions constitute gross misconduct, with disciplinary action being appropriate on that basis.
If and when the employee is convicted the terms of the conviction itself could also constitute sufficient grounds for disciplinary action. For example if the employee receives a lengthy custodial sentence, or if a driver is banned from driving for a long period of time, dismissal may well be appropriate on the grounds that the employee is not able to carry out their role.
Where an employee’s crime doesn’t have a direct effect on the employee’s work, it’s harder to establish what if any disciplinary action is appropriate.
It is vital that before any action is taken, the employer conducts a thorough investigation to establish all of the relevant facts. Where the employee’s conduct needs prompt attention, the employer should not wait for the outcome of any criminal proceedings.
The employee can be suspended pending outcome of the investigation.
Clearly if the employee is convicted of a criminal offence the company may wish to consider dismissal. It will not always be reasonable to dismiss someone simply because they have been charged with a criminal offence (bearing in mind the provisions of the ACAS Code set out above).
A 2010 Tribunal case illustrates how a dismissal may be unfair, if the employer doesn’t properly assess the impact of the conviction on the employment relationship. In Towart v Tyne and Wear NHS Foundation Trust the Tribunal found that the employer failed to act reasonably in dismissing a care worker when it decided that his dismissal was inevitable, following his criminal conviction for possession of cannabis and an illegal firearm. The Tribunal found that the Trust failed to take into account mitigating circumstances, including that the firearm was only illegal due to a manufacturing fault (which Mr Towart was unaware of). The Trust failed to set out why it considered that the care of patients was compromised by the conviction and made unsubstantiated assertions that its reputation had been damaged.
One way to do this is for the company’s contract of employment should give it the express right to dismiss in cases where the employee is convicted of a criminal offence. As outlined in Towart, the company should identify how the conviction could affect its reputation, or its relationships with its staff, customers or the public (or otherwise affect the employee’s suitability to continue to work for the company) in moving towards a dismissal. This may seem an obvious point, especially where the conviction is for a serious offence and the employee receives a lengthy sentence, but the need to identify a fair reason for the dismissal should not be overlooked.
Remember that even if the employee is convicted of a criminal offence and imprisoned, any dismissal will be unfair unless you have followed a fair process and identified a fair reason for the dismissal. This may cause some practical difficulties where the employee has been remanded in custody prior to the criminal trial and where it has not been possible to meet with them to undergo a disciplinary process. In such cases, it may be necessary to proceed with disciplinary action based on the available evidence.