Your employee has been arrested
Criminal investigations and reputational risk
We’re often asked to advise employers on the options available to them when an employee is being investigated for allegedly committing a criminal offence.
Contrary to common belief, there is no rule to say that you can’t dismiss an employee who has been advised to say nothing before trial. If you are considering disciplinary action, you must:
- Conduct your own investigation, don’t just rely on the police. That said, you can still rely on information from the police in conducting your own investigation.
- Allow your employee the opportunity to provide an explanation (even if they don’t take it) and, if you are considering dismissal, make that clear.
- Decide whether it’s practical to wait for the outcome of any criminal proceedings. Relevant factors might include when any trial will conclude, the size of your business, the nature of your business and the terms of your employee’s contract of employment/the staff handbook.
If your employee is remanded in custody or convicted and imprisoned, this will present issues for their ongoing employment. A lengthy sentence may frustrate their contract. You’ll need legal advice to determine this.
Where the offence relates to their employment, their dismissal will likely be fair.
Where the offence does not relate to their employment, you’ll need to consider whether the particular circumstances of their case have a negative impact on the reputation of your business.
If the offence alleged is incompatible with the nature of your employee’s work, it is likely that their dismissal would be fair, assuming you have conducted a reasonable investigation and followed a fair procedure.
For example, a schoolteacher who taught teenage children who was convicted of possession of cannabis outside of work was found to have been dismissed fairly.
If the offence alleged is not incompatible with the nature of your employee’s work, you’ll need to consider whether there is a sufficient reputational risk to your business which would justify dismissal. This would be for ‘some other substantial reason’ (‘SOSR’). A SOSR dismissal may still be fair where your employee is acquitted.
For example, a senior civil servant working for a public authority denied accusations of sexually abusing children. The allegations did not relate to the nature of his work. He was not convicted. His dismissal was, however, found to be fair due to the ‘reputational risk’ to his employer.
For more information about this article or any other aspect of people services reimagined, download the App for Apple or Android, and contact your integrated HR, employment law and health & safety team at AfterAthena today.
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