The England and Sunderland football player Adam Johnson is due to stand trial today on two counts of sexual activity with a child. It is reported that earlier in the week, he pleaded guilty to one charge of sexual activity with a child and a charge of grooming. I understand the offences he has pleaded not guilty to, are the more serious charges under S.9 of the Sexual Offences Act 2003.

When I started writing this article, Sunderland had announced that Adam Johnson would not play in the next match against Manchester United. However, I quickly had to do a re-write because Sunderland then announced that his employment was being terminated with immediate effect. This is a rather sudden decision, bearing how long the case has been going on. One can only speculate that the guilty plea entered by Adam Johnson has taken the club by surprise.

Sunderland are in a precarious state as far as their premier league survival is concerned. Adam Johnson is a footballer who cost them £10 million in 2012 and is one of their better players. However, the club have felt they have no option but to dismiss him.

Sunderland will have taken advice as to whether the club can lawfully and fairly dismiss Adam Johnson with immediate effect. It is reported that he earns £50,000 per week so the stakes are high. Sunderland will have taken such swift action (following the guilty plea) due to the reputational issues involved in this case. The club cannot be seen to be condoning this type of behaviour (whatever happens to Mr Johnson in terms of sentencing). However, Premier League football is unique and footballers are under intense scrutiny. What about mere mortals who carry out “normal” jobs?

It is not uncommon to have to advise an employer who has an employee who commits a criminal offence outside of work, whether that offence will lead to a custodial sentence or not. In this article, I summarise a few of the issues faced by employers in a situation like this.

Criminal offences committed outside work

Employers often ask me whether they can dismiss an employee who has committed a criminal offence outside work (where there is no custodial sentence). An employer is entitled to dismiss an employee who commits an act of misconduct. However, a charge or conviction of a criminal offence outside work does not necessarily amount to misconduct such that the employer can take action in relation to the employment relationship. The ACAS Code sums things up nicely and says:

“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”. 

Often the situation will depend upon the job that the employee does. If the employee works in a position of trust, such as dealing with finance, an outside work conviction for dishonesty may well affect his or her suitability to do the job. Certain convictions are also likely to have more of an impact on roles such as teachers who are working with young and impressionable people.

Employers should not automatically move towards a misconduct dismissal and must put their minds to questions such as:

  • Is the criminal conduct relevant to the nature of the work being done?
  • Is there genuinely a reputational risk for the employer?
  • Might there be a serious breakdown in relations between the employee and their co-workers?
  • Are there ways that the employee could continue in their job with certain safeguards being put in place?

Each case has to be looked at on its own facts. On the facts of Adam Johnson’s case, ignoring any custodial sentence, could he really have carried out his role in view of his admission of guilt? I agree with Sunderland; he could not.

Custodial sentence

Employers are often surprised when I tell them that a custodial sentence does not automatically bring the contract of employment to an end. Again, each case must be looked at on its own facts.

In some cases, a custodial sentence will terminate the employment contract automatically under a doctrine known as “frustration”. A contract is frustrated when its performance is no longer achievable.

In an employment relationship, there is a wage/work bargain where the employee agrees to do the work and the employer agrees to pay the wage. If the employee is been detained at Her Majesty’s pleasure for a longish period of time then the wage work bargain will be frustrated. The employee cannot fulfil his or her part of the bargain. However, in many cases involving less serious misconduct, a short prison sentence only will be served. There have been cases where such shorter sentences have not frustrated the contract of employment. Employers need to think carefully, therefore, before treating the employment contract as being frustrated.

Even if the employment contract is not frustrated, the employer may well have the right to dismiss the employee for a variety of reasons permitted under employment legislation. Employers will then need to consider whether the dismissal is with or without notice and what happens about pay? I have had numerous cases involving employees who have been charged with serious offences and/or have been given custodial sentences. In all of these cases, the employer has successfully managed the situation and, where appropriate, terminated the employment contract in an appropriate manner. However, these cases need careful handling and an employer should always take advice.