“It’s a crime” – Criminal Offences by employees

Even employees with a spotless record may find themselves accused of involvement in crime.

If such a situation arises, particularly if the offence is unrelated to the employee’s work, it can be challenging for employers to deal with.

A clear concern for employers is that the conduct of an employee, even if this is outwith working hours and work premises, could harm the organisation’s reputation, and that taking no action might be seen as condoning their conduct. It has been reported that individuals charged with involvement in the recent rioting have lost their jobs.

Adverse publicity in the local or national press, naming the employer, is possible. Additionally, depending on the nature of the offence, there may be concerns about the potential risks to your business or the safety of others if the employee continues in their role. But is dismissal an appropriate response?

If an Employee is Charged with a Criminal Offence is it Reasonable to Dismiss?

The first step is to determine the severity of the charge and its direct implications on the employee’s role. If the nature of the crime is such that a conviction would make it impossible for the employee to fulfil their duties such as losing a professional license, a mandatory criminal record check, or a driving license, or perhaps an employee whose role involves handling cash being charged with a crime of dishonesty, it is essential to consider the potential outcomes and how they might affect your business.

Dismissing an employee before a conviction is possible, but it carries significant risks if the employee has 2+ years’ service. The key question is whether the dismissal would be seen as “reasonable” by an Employment Tribunal. This would depend on the nature of the charge and whether it is related to the employee’s role and responsibilities; the risk of reputational damage to the organisation; the likely delay before the matter being resolved judicially; and whether there is a concern arising from allowing the employee to continue working at the organisation. If these factors point to significant risks, dismissal may be justifiable, but it should be done with caution and a well-documented rationale, remembering that of course, the employee is “innocent until proved guilty”.

Suspension is a viable alternative to immediate dismissal allowing the employer to remove the employee from the workplace while the criminal process unfolds, minimising potential disruption and reputational damage. Suspension can be with or without pay, depending on the circumstances and the terms of the employee’s contract, however suspending without pay can put the employer at risk of a claim for unlawful deductions from wages which can result in significant financial compensation. Unpaid suspension could also lead to claims of constructive dismissal or breach of contract, so it should only be used where explicitly permitted and where there is a strong justification. Employers should seek legal advice prior to taking the decision to suspend without pay. The downside to suspension with pay, of course, is that it may be many months, or even years, before the criminal case is dealt with by the courts.

Case Law

Case law in this area has been variable. In Leach v Office of Communications, the claimant was dismissed after police disclosed suspicions of his involvement in child abuse and concerns about the risk he posed to children. Although these allegations were never substantiated, and his role did not involve working with children, the Employment Appeal Tribunal (EAT) ruled that the dismissal was reasonable due to the potential reputational damage to the employer.

In Lafferty v Nuffield Health the EAT found that the dismissal of a school caretaker over historical allegations of sexual abuse was fair. The EAT determined that Nuffield had acted reasonably, noting that the organisation did not simply accept the allegations against Mr. Lafferty at face value but conducted a thorough and fair investigation into the charges. Nuffield had a duty of care to prioritise patient safety. Additionally, the EAT acknowledged the significant risk of reputational harm to Nuffield, especially in a climate where charitable organisations were under increased scrutiny for similar offences within the sector. The EAT found it reasonable for Nuffield to pre-emptively dismiss Mr. Lafferty, considering the potential consequences of a conviction.

Conversely, In Harvey v Vista Hotels Ltd, the employee won an unfair dismissal claim having been dismissed 6 months into an 18 month prison sentence for attacking two police officers. Although there was a potentially fair reason for dismissal, the employer failed to follow a fair process, carry out a proper investigation, or allow a right of appeal, and so the dismissal was unfair. This seems a surprising outcome, but emphasises the importance of proper process!

Similarly, an employment tribunal in Edinburgh recently found a Claimant to have been unfairly dismissed after being charged with murder (Difolco v Care UK community Partnerships). The tribunal found that the employer did have a valid reason for dismissal, but failed to follow a proper procedure.

What if the Charge Does Arise from Workplace Conduct?

If it is the employee’s conduct in the workplace which is thought to be criminal, and may lead to a police investigation, it is possible to conduct an internal disciplinary process even if the matter has been referred to the police. However, the employer must consider the employee’s right to remain silent, which could complicate the investigation. While information from the police can be considered, the employer cannot rely solely on their investigation. The internal process should be independent and thorough. Therefore, the employer is within their rights to investigate the matter internally, including speaking to witnesses and gathering evidence. It is crucial to ensure the process is fair and does not interfere with the police investigation.

During an internal investigation or disciplinary hearing, an employee cannot be forced to answer questions if that would be inconsistent with their right to remain silent in the police investigation. While this can hinder the employer’s investigation, it is important to respect this right. Any disciplinary action should be based on the evidence in front of the employer, not on inference taken from the employee’s silence. If the evidence is lacking, the employer may be unable to proceed with the matter internally.

Deciding whether to handle the issue internally before involving the police depends on the severity of the misconduct. Handling the internal process first allows the employer to control the matter and possibly resolve the issue without the considerable delay which may result from a police investigation. However, if the misconduct is severe, or causes a concern for public safety, involving the police immediately might be necessary to protect your organisation and others.

Conclusion

Where an employee is suspected of committing a crime, whether in or out of work, challenging issues arise. This requires a careful balance between legal obligations, ethical considerations, and the potential impact on your business. The decision to dismiss, suspend, or allow the employee to continue working, each carry risks that must be considered in detail. Employers must remember the importance of a fair procedure, even in unusual circumstances of employees being jailed!

In such complex situations, it is always advisable to seek legal advice in order to protect the organisation while also treating the employee fairly.

This update contains general information only and should not be construed as providing legal or other professional advice.