Criminal offences committed outside work – what should an employer do?

What position should an employer take with regard to an employee who has committed a criminal offence outside work? Can they dismiss the luckless worker or could such a course of action end up causing them more trouble than they had anticipated?

An employer is within their rights to dismiss an employee who has carried out an act of misconduct but complications can set in because being charged with (or convicted of) a criminal offence outside work may not necessarily count as misconduct.

Paragraph 30 of the ACAS Code of Practice on Grievance and Disciplinary Procedures states that:

“If an employee is charged with, or convicted of, a criminal offence this is not normally in itself a 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”.

What should employers do?

If an employer has decided that they do wish to take action, the first thing they should do is check the disciplinary policy to verify that being charged with (or convicted of) a criminal offence specifically amounts to a disciplinary offence, or, alternatively, an offence amounting to gross misconduct. If this turns out to be the case, an employer’s decision to begin disciplinary action could be considered reasonable.

It goes without saying that an employer should undertake their own investigation of the offence in question. Since the employer has a duty to gather sufficient information to allow it to come to an informed decision on a case, their investigation should be as thorough as possible. They can then use this as evidence to back up their belief in the guilt or otherwise of the employee should a decision to dismiss result in a Tribunal claim.

The investigative process gives the employee an opportunity to respond to the allegations against him/her and allows them sight of witness statements (although these are usually anonymised where it is felt that the witness might be at risk).

If the employer intends to proceed with disciplinary action, the employee should be warned of this so that they have adequate time to prepare a case for their defence.

Before moving to a misconduct dismissal, employers should consider factors including:

• Is there a direct relation between the criminal conduct and the job that the employee carries out? Would the offence render the employee unsuitable to continue in the job?

• Does the criminal conduct pose a risk for the employer’s reputation?

• Would retaining the employee lead to a breakdown in relations between them and their colleagues?

• Could the use of appropriate safeguards mean the employee can remain in post?

Because of the variables involved, each case will need to be looked at on its own facts. One of the most important will be the job that the employee has, particularly if it has a direct bearing on the offence with which they have been charged/convicted. By way of an example, the ability of someone to work with money will likely be affected by a conviction for dishonesty.

Offences that have no bearing on the employee’s work or their working environment will not, in general, be ones for which dismissal is a reasonable option.

Tribunals tend to examine the concept of a reasonable range of responses and the more information that an employer is able to provide, the more likely it will be that their action will be seen by the Tribunal as reasonable. This will then feed through into the opinion of the Tribunal on the fairness of the dismissal.

What happens in the event of a custodial sentence?

A custodial sentence does not automatically bring the employment contract to an end. In some circumstances, this will happen under what is known as “frustration”. An employment contract is considered frustrated when its performance is no longer achievable.

If the employee is been detained for a considerable period of time, the wage work bargain will be frustrated because the employee cannot fulfil his/her part.

However, it is worth bearing in mind that for cases that involve less serious offences, either a short custodial sentence or a suspended one may be imposed and this may not count as a frustration of contract.

Employers will therefore need to examine an employee’s availability before moving to declare the employment contract frustrated.

Alternatives to dismissal

In order to ensure that any dismissal stands a good chance of being seen as fair by a Tribunal, the employer should check to see whether it is possible for a lesser sanction to be imposed, including alternative work (albeit work for which the employee is still qualified). There might be no alternative work available but a recorded investigation into the possibility of this would stand the employer in good stead if a claim is taken to a Tribunal.

Factors that may affect the Tribunal’s decision

There are certain types of offence that tribunals are likely (though not certain) to accept are fair grounds for dismissal. These will be, for the most part:

• crimes of violence,

• dishonesty and

• sexual offences.

Other factors that may be taken into consideration by the Tribunal when considering a claim of unfair dismissal will include the size and nature of the business, how practicable it would be to carry out a full investigation, the degree to which the business could cope with an employee who is liable to be absent for a long period of time and what provisions there are in the staff handbook.