What To Do If An Employee Is Subject To Criminal Allegations

What are an employer’s obligations when an employee is arrested and charged? Should they dismiss, and are there any risks for the employer if they do?

The action an employer should take following being made aware of criminal allegations against one of their employees will very much depend on the facts of the case. In some circumstances, the employee’s off-duty conduct outside of the workplace may not affect their role or the employer’s business at all and so it would be deemed inappropriate to commence disciplinary proceedings. If this is the case but the employee is unavailable to work because they are on remand, an employer will need to consider if it is able to keep the job open, considering the needs of the business.

However, where the allegations have an impact on the employee’s work, colleagues or the reputation of the business. How should an employer manage this, and would it be unfair to dismiss ahead of knowing the outcome of criminal proceedings?

If it is appropriate to commence disciplinary proceedings, the employer should treat the matter in the same way as any other disciplinary. Firstly, an employer will want to consider whether it is necessary to suspend the employee whilst investigations are carried out. Suspension should not be a knee jerk reaction and is not always appropriate. During any period of suspension, unless the contract provides otherwise, the employee should receive full pay.

An investigation should be conducted and thereafter, the employer will determine if there is a case to answer. Sometimes an employee will not engage in the process upon receiving legal advice, so as to not prejudice the criminal case against them. Alternatively, they could be remanded and unable to participate. In these circumstances, if it is possible for the employee to do so, they should be encouraged to engage and be afforded the opportunity to put forward their case. The employer should not, however, force them to attend meetings or to make an admission of guilt. If the employee does not engage, the employer should let them know that a decision may be made in their absence.

An employer does not need to wait for the outcome of criminal proceedings before taking action. If the employer considers that dismissal is appropriate, it can take this action ahead of criminal proceedings being concluded.

It should be noted that employees with over two years’ service are protected from being unfairly dismissed so, an employer will need to establish a fair reason for the dismissal. It is important to follow the correct process in order to mitigate the risk of any future unfair dismissal claim being successful.

Advice

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