What can I do if one of my employees has been arrested and charged with a criminal offence?

Claire Hollins, Partner

Last week’s revelations that former BBC newsreader Huw Edwards had been charged with a number of criminal offences whilst he was employed by the BBC (albeit suspended for unrelated matters) coupled with the ongoing riots and the resulting prosecutions this week, have led to a number of questions about what employers can do if their employees are accused, charged or convicted of criminal offences.

An employee has not attended work today and there are rumours they have been arrested, what can I do?

Until you have confirmation of the reason for the absence, the employee should be treated the same as you would treat any employee who fails to attend work and has not followed the correct absence reporting procedure.

Can I suspend an employee who has been charged with a criminal offence?

Suspension should be carefully considered taking into account the nature of the allegations, the alternatives to suspension, how long an investigation might take and the risks of not suspending the individual. You should also consult your own policy and ensure that a consistent approach is taken.

Can I dismiss an employee who has been charged with a criminal offence?

Being charged with a criminal offence is not of itself a reason to start disciplinary action against or dismiss an employee. You would need to consider whether this has any implications for their employment (for example if restrictions are placed on them or there are witnesses in the workplace). Criminal misconduct which has no bearing on employment and did not take place in the workplace is unlikely to merit disciplinary action. Where there are implications for the ongoing employment or the offence was committed in work, you would need to ensure that a fair process is followed as employees with more than two years services (currently) have the right not to be unfairly dismissed. Typically, this requires an investigation into the facts, a fair disciplinary hearing and the right of appeal against any penalty imposed.

Where the fact of the charge or subsequent conviction is a reputational risk, dismissal may be justified for ‘some other substantial reason’ but you would still need to carefully consider and evidence the risks to the business. The nature of the allegations and the employer’s business/sector are going to be highly.

The employee has less than two years’ service, can I dismiss them?

At present employees with less than two years’ service cannot bring claims for unfair dismissal (except in limited circumstances). However, they can bring claims for discrimination, and it is therefore important to ensure all of the relevant circumstances and potential risks are considered before any action is taken.

The employee is refusing to participate in the internal investigation whilst criminal proceedings are pending, what do I do?

There are no fixed rules on how to proceed. This will depend on the circumstances of the case and the likely length of any delay as most employees will not want to risk incriminating themselves at any subsequent criminal trial. Likewise, employers will not want to risk prejudicing any criminal proceedings with their internal investigation. Generally, you do not have to wait for the outcome of any criminal proceedings before acting. You do however have to ensure that a fair process is followed in the circumstances.

An employee has been remanded in prison pending a trial, can I dismiss them?

If the employee has more than two years’ service (and can therefore bring a claim of unfair dismissal), you would need to consider the likely period of absence and the impact of this on the business. It will also be imperative to follow a fair process.

There are practical implications of terminating the employment of someone who is in prison such as how you notify them of this given their contract of employment may contain specific provisions on how notice can be given and, in most cases, notice is not effective until received by the employee.

Where the employee is not able to work due to being imprisoned, they will have no entitlement to pay but whilst they remain a employee they will be subject to the usual employment benefits (such as continuing to accrue holiday) and obligations.

In some circumstances where an employee is unable to attend work it will be permissible to treat their employment as having come to an end (known as frustration) but this requires careful consideration of the circumstances.

What if the employee is convicted and imprisoned?

A custodial sentence (unless particularly short) is likely to frustrate a contract of employment as the employee will be unable to perform their role.  Where the contract is frustrated, there is no dismissal and therefore the employee is unable to claim unfair dismissal. However, not all custodial sentences will frustrate the employment contract and advice should be sought on the particular circumstances and whether the better option is to follow a disciplinary process taking into account the difficulties of doing so when the employee is in prison.

The Kuits employment team offer bespoke training for managers on conducting investigations, disciplinaries and appeals. Our workshops are interactive, practical and easy to understand and may assist you to avoid successful claims.

For advice on issues relating to conduct and disciplinary action or to arrange training please contact Claire Hollins.