How to deal with employees facing criminal allegations
When an employee is accused of criminal allegations or charged with a criminal offence, it can often cause problems for their employer.
Whether an employee can be dismissed for such behaviour is an incredibly fact specific question and should be judged on a case by case basis. For employees with more than two years’ service, employers will need to ensure they have a fair reason for dismissal under statute and will need to follow a full and fair procedure prior to making any decision to dismiss.
Depending on the nature of the criminal allegations / offences, the potentially fair reason for dismissal under statute is likely to be either misconduct or ‘some other substantial reason’ (SOSR). The latter is likely to be relevant if the employee can no longer perform their duties (for example due to being remanded in custody or subject to a long prison sentence) or if there is evidence of clear reputational damage (for example, complaints from third parties).
Whether the employee’s actions can be deemed misconduct may depend on whether the behaviour was committed inside or outside of work and/or whether the behaviour could be deemed to be relevant or connected to their job role – for example, it will be much easier to dismiss an employee who is found to have committed theft during the course of carrying out their work duties than if they were accused of theft from a local supermarket on the weekend. Employers should review their policies and consider if they refer to behaviour outside of work potentially justifying disciplinary action. It may be relevant if there is cause to believe that the employee’s actions could impact customers or clients or if there is a significant risk to such parties arising from the alleged offences.
If an employee is remanded in custody, this should not delay an employer’s investigation into the matter – which should be commenced without unreasonable delay using written representations if appropriate. Employees are also not entitled to be paid if they are unable to attend work due to being remanded in custody.
If employees are suspended whilst an investigation is ongoing, the suspension should be on full pay unless the employer has the contractual right to withhold payment (which would be highly unusual). Suspension should not be an automatic action by the employer following news of criminal allegations and should only be used where appropriate in all of the circumstances. For example, if a teacher or care worker was accused of sexual offences related to children, suspension may be deemed appropriate due to the significant risks involved if they were to remain in employment whilst the investigation was being carried out.
If an employee is convicted of a criminal offence and is ordered to serve a prison sentence, it may be the case that their employer can argue that the contract of employment has been ‘frustrated’ meaning their contract is deemed to be terminated by operation of law and as a result there is no dismissal. Successfully arguing frustration is rare and it is common for employees to argue there was no frustration and to bring unfair dismissal claims on this basis. Case law has shown that generally frustration will only be successfully argued where prison sentences exceed one year in length - however this is not a hard and fast rule, with cases judged on their individual facts. It is important to note that employers can reasonably base their decisions on the length of the sentence imposed- it is not necessary for them to consider whether the employee may in fact serve a lesser part of that sentence.
As shown by the above, this is a tricky area of law and taking legal advice early will be key in successfully handling issues involving employees and criminal allegations |
