Although it does not seem to have been widely reported yet I heard a snippet on the news last night which indicated that, interestingly, a number of people who have already appeared in court and pled guilty to a variety of different offences were in employment.
More will, no doubt, be reported on this but some of the jobs mentioned were by no means low level, with some of the individuals appearing to hold positions of some responsibility.
As the police continue to issue CCTV images this may well become an issue for certain employers moving forward.
The ACAS Code Of Practice on Discipline& Grievance states:-
“If an employee is charged with, or convicted of a criminal offence this is not normally in itself 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.”
Accordingly, whilst employees can be dismissed for conduct occurring outside work, for a dismissal to be fair any criminal conduct is likely to require either to affect the business or to undermine the confidence which the employer has in their employee.
In this regard it is likely that an employer will seek to argue that the employee’s conduct has damaged the employer’s reputation and/or that it has destroyed the relationship of trust and confidence between employer and employee.
Care does though require to be taken as the situation is not always as clear cut as employers may believe.
A particularly relevant case, given that the conduct is, to some extent, analogous, relates to allegations of football violence is the case of Post Office v Liddiard.
This case related to a Post Office worker who was dismissed as a result of his conviction for violence during the 1998 football World Cup in France. There was subsequent negative media coverage which referred to both Mr Liddiard and the fact that he was employed by the Post Office.
Mr Liddiard was subsequently dismissed on the grounds that his conduct had brought the Post Office into disrepute and he raised a claim for unfair dismissal.
Surprisingly, the Tribunal held that the dismissal was unfair. Following two appeals the case was referred back to a different Employment Tribunal as, in the Court of Appeal’s view, the original Tribunal had not properly considered whether the Post Office had acted within the range of reasonable responses of a reasonable employer.
I am not aware of what the new Tribunal’s decision was but the case does serve to underline that matters are not necessarily as clear cut as one would think. Whilst the case does not offer guidance on the circumstances when it would be appropriate to dismiss it can be taken from the case that in certain circumstances such a dismissal will be fair.
If an employer faces this sort of situation then potential relevant factors which should be considered (and which should be documented as having been considered)include:-
- nature of job;
- nature of conviction offence;
- status of the employee;
- any effect conviction offence has on ability to do job;
- effect conviction has on the business of the employer;
- any press coverage linking individual to the particular employer;
- extent to which the work involves contact with the public;
- previous disciplinary record and length of service of employee.
Bear in mind also that even if an individual is not actually convicted in may still be possible for an employer, who has sufficient evidence of the employee’s conduct, to dismiss.
Given the very considerable public anger at the events it would be surprising if the Tribunals take an overly employee friendly approach here. However, that said, much may depend on what the employee does for the employer and what they have been convicted of and whilst there may well be some very clear cut cases others may be less so.
As ever, it is important that there is not a knee jerk reaction and that a full and fair procedure is followed which considers all of the circumstances.
One final point, it would also seem highly likely that many of those convicted of offences will face considerable custodial sentence, which could allow the employer to treat the contract as having been frustrated and brought to an end.