John has been your bar manager for 2 years. He has been a good and reliable member of your team. You know that he has been having marital difficulties. Then he tells you that he has been arrested and charged with assaulting his wife. He has been released on bail pending his trial in 3 months time. Your first reaction is likely to be one of shock after which you may wonder where this leaves you as an employer. What are your duties to John, to your business and to your other employees in these circumstances?
Peter has been a waiter in your hotel restaurant for just over a year. He is unexpectedly absent from work for a few days. You assume that he is ill but before he returns you are told by another member of staff that he has been in police custody and has been charged, along with 2 others, with a series of thefts from shops. He returns to work and again you want to know what your options are for dealing with the situation.
Can you dismiss an employee who is charged with a criminal offence?
In this article we look at the specific issues surrounding offences committed outside the workplace. In future we will cover offences committed in the workplace.
Offences committed outside the workplace
We are all aware that, when someone is charged with a criminal offence, they are innocent until proven guilty. Any dismissal will be unfair unless it is for one of the statutory fair reasons and as employer you act reasonably in all the circumstances. ACAS has expressed the view that it will normally be unfair to dismiss an employee just because he has been charged with a criminal offence.
If an employee is convicted of a criminal offence occurring outside work, a dismissal is only likely to be fair if that criminal offence has some material impact on the employee’s ability or suitability to do their job, or affects their acceptability to other employees to a material extent.
ACAS has made it quite clear that just because an employee has been charged or convicted with an offence, you may not be entitled to discipline or dismiss them, unless it has a direct impact on the employment relationship. This is the case even if the employee has been remanded in custody. However, this does not mean that you have to turn a blind eye to the events which have happened. You may feel that, in the circumstances, the offence is so serious that even though it was committed outside the employment, it still has a material impact of the employee’s ability/suitability to do their job and warrants discipline or dismissal. Each case will need to be looked at on its own facts.
If you wish to take action, the first step is to check your disciplinary policy to see whether being charged with or convicted of a criminal offence specifically amounts to a disciplinary offence, or, alternatively, an offence amounting to gross misconduct.
It may be reasonable in the circumstances to commence disciplinary action in accordance with your company policy.
Before taking any decision about disciplinary action or dismissal you must carry out an investigation of your own into the offence which the employee has committed. It is important that the employee is given sufficient time and opportunity to answer the allegations against him, including having sight of any witness statements (made anonymous if necessary). You must consider whether the employee’s charges/conviction have an impact on the employee’s employment.
In our examples above:
- Having carried out an investigation you may conclude that John’s conduct was confined to the home and he has a reasonable explanation for his actions, he does not show any violent tendencies in the workplace and none of the staff you interviewed feel threatened by him at work. If so, it is not likely to be fair to dismiss John.
- Peter’s offence on the other hand is a dishonesty offence. During your investigation you find out that he was involved with others offences which makes it more serious. He offers no plausible explanation for his conduct. He handles money as part of his work and you may not feel able to trust him anymore. In addition you feel that his conduct has brought your hotel into disrepute as his arrest was reported in the local press. In the circumstances it may be fair to dismiss Peter even before his trial and even if he is subsequently acquitted of the offences.
Click here to read: Unfair dismissal applies even when licence is at stake
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.