When an employee is suspected of a criminal or disciplinary offence, he or she is presumed innocent until proven guilty. This presumption of innocence is one of the foundations of criminal law. However, the presumption of innocence is restricted to criminal or disciplinary proceedings and does not have general application.
If there is a founded suspicion that a private sector employee has committed a crime or behaved improperly – especially if this conduct is work related – the employer is entitled in most cases to bring the employment relationship to an end, subject to due process and restrictions which might be applicable according to collective agreements or arrangements.
Terminating an employee's employment prior to conviction or even indictment is undoubtedly harmful for the employee, who usually wishes to remain in his or her position, at least until the end of his or her trial. However, the employer wishes to maintain its reputation, run its business without disruption and avoid the collateral damage that may result from employing an employee in such circumstances.
When balancing these opposing interests, the employer usually has the upper hand. The decision to terminate an employee against whom there is a founded suspicion, if reached following due process, will usually be considered legitimate in the sense that the court is unlikely to intervene, although the employee may be entitled to prior notice and severance pay.
Where the employee against whom a founded suspicion of wrongdoing has arisen is employed in the public sector, the aim to protect public trust in the public service serves as another reason against his or her continued employment, in addition to the aforementioned interests of employers in the private sector.
In the public service, a suspension mechanism enables a public employer to defer the decision regarding the employee's future until after the criminal or disciplinary proceedings have concluded. In the interim, the suspended employee is entitled to partial pay and, after a certain period to his or her full salary. The suspended employee is also entitled to work outside the public service and, if acquitted, may be entitled to receive back pay up until the date of his or her reinstatement.
The employer's decision to suspend the employee under these conditions is usually considered legitimate in the aforementioned sense (ie, that the court is unlikely to intervene such a decision).
An employee who is suspected of wrongdoing and is suspended, let alone dismissed, is usually deeply hurt. He or she often feels prematurely judged and that the presumption of innocence was unjustly taken from him or her; rather, he or she is in the position of being assumed guilty until proven innocent. As a result, many employees contest the decision to terminate or suspend their employment.
However, employees should know that courts recognise that employers often have legitimate interests that may justify termination or suspension of employees suspected of wrongdoing. As a result, courts do not usually intervene in such decisions if taken after due process. Therefore, it seems that in most cases employees would do better to invest their resources in their defence against the suspicions or charges instead of entering into an almost certainly doomed battle against a decision to suspend or dismiss them that is defensible on the part of the employer.
For further information on this topic please contact Shoshana Gavish at S Horowitz & Co by telephone (+972 3 567 0700) or email (firstname.lastname@example.org). The S Horowitz & Co website can be accessed at www.s-horowitz.com.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.