What to do if your employee is charged with a criminal offence

There can be something of a misconception amongst many employers that an employee charged with (or convicted of) a criminal offence can simply be dismissed. A raft of case law and guidance means that in fact this is an extremely difficult situation for employers to navigate.

To being with, there is no general legal obligation on an employee to notify their employer that they have been charged with a criminal offence (though deliberately concealing it may of itself warrant disciplinary action), except in certain regulated sectors. This means that sometimes the first time that an employer learns of the charges or conviction is from a local press article or the rumour mill at work. Whilst dismissal may seem like the most obvious next step, caution needs to be applied.

The first thing an employer needs to do is to consider the nature of the offence and its potential impact on the employer’s business. There needs to be some link between the criminal charge and the employment relationship. If the offence has nothing to do with their role and a conviction would not have any detrimental effect on the employer’s business, dismissal is unlikely to be deemed fair by a Tribunal. However, if the charges are related to honesty or violence, there is often a good argument that they will have a bearing on the employer’s ability to trust the employee and/ or will impinge on its general duty of care to ensure the safety of all its employees. Charges of this nature may also cause reputational issues for the business. The ability to objectively demonstrate each of these factors will be key before taking any decision to terminate.

Employers often want to immediately move to suspend the employee as soon as they learn of the charges. Again caution should be applied. Suspension should not be used as a knee-jerk reaction and should only be considered if there are good reasons for it, in order to protect the employer’s business. The reason for any suspension should be documented and the employee should be paid in full for its duration.

A fair procedure will need to be carried out to satisfy the statutory dismissal regulations, regardless of the gravity of the charges.  That will entail having an investigation, inviting the employee to a disciplinary meeting, via a valid Step 1 letter, detailing their right to be accompanied and the opportunity to put forward their case at the meeting and informing them of their right of appeal.

A question often asked is whether employers need to wait for the police investigation to conclude before taking its own action.  Most employers will not usually wish to wait, particularly when the employee has been suspended on full pay, as the criminal proceedings are likely to take several months. Employers should keep in mind that an employee may be reluctant to take part in internal procedures as anything said in those proceedings could be used against them as part of the criminal proceedings. If an employer does go ahead with internal proceedings, it must not interrogate the employee or pressurise them into making admissions of guilt. This means that employers are sometimes left without sufficient evidence to make a disciplinary decision. That said, employers do need to balance this against the obligation to carry out investigations without unreasonable delay.

If the employee is convicted of the charge and sent to prison, they are unable to discharge their duties under their employment contract. However, it does not automatically follow that a dismissal will be fair if the Tribunal considers that the size and resourcing of the employer means that they could keep the employee’s job open for them for the duration of their custody.

If the employee is not ultimately charged or convicted, it is still open to an employer to discipline the employee if it can show reasonable and genuine reputational issues. Keep in mind that the evidential burden in criminal cases (“beyond a reasonable doubt”) is significantly higher than in Tribunal matters (“a reasonable belief following a fair investigation”).

This is a delicate and fact sensitive area. Legal advice should always be taken before making decisions that could unwittingly cost the business money and/ or reputational risk.

For further information in relation to this topic, please contact any member of Belfast's Employment and Incentives team. 

Date published: 5 April 2024