This edition of The Works looks at the issue of employees who have been accused of committing a criminal offence, the problems which can arise and how to deal with them.

The impact on employment

The two main situations where an employee could face criminal allegations are:-

  1.  Their actions at work are not only gross misconduct but also a criminal offence (for example theft).
  2.  They are accused of committing a criminal offence outside work.

In the first case it is clear that the employee's actions will need to be investigated by the employer and disciplinary action considered. In the second case it will depend on whether the criminal offence the employee is accused of affects their ability and suitability to do their job and their relationship with their employer, colleagues and customers. The statutory ACAS Code of Practice on disciplinary and grievance procedures states that an employee being charged with a criminal offence "is not normally in itself reason for disciplinary action".

Therefore employers need to consider each case separately, taking into account the nature of the criminal offence alleged, the employee's position within the organisation and the requirements of their job. A knee-jerk dismissal of an employee simply on the grounds they are facing criminal allegations is likely to be found unfair by an Employment Tribunal.

Does the employer need to investigate?

As the police will conduct their own investigation into the employee's alleged criminal conduct, does the employer need to investigate? The police investigation should be seen as separate by the employer. Employers should not ask the police to conduct an investigation on their behalf nor should police officers be present at any meetings or disciplinary hearing (ACAS Guide to Disciplinaries and Grievances at Work).

Employers therefore need to conduct their own investigation into the alleged criminal offence in order to establish whether the conduct is serious enough and/or has implications for the employee's employment to merit disciplinary action being taken against them. In employment law an employer needs to establish that they had a genuine belief in the employee's guilt, held on reasonable grounds following a reasonable investigation in order for a dismissal to be fair – regardless of whether the employee's alleged misconduct also constitutes a criminal offence. The investigation must be thorough and even-handed, taking all relevant circumstances and known evidence into account, including any facts or evidence which support the employee.  

Suspending the employee for the duration of the investigation should be considered. However employees should not be automatically suspended following criminal allegations. Instead employers should consider whether suspension is appropriate, for example where the employee's continued presence threatens the conduct of an investigation because they could attempt to influence witnesses. Suspension should be on full pay unless there is an express contractual right to suspend without pay, but this should only be exercised in exceptional circumstances.

Can the disciplinary hearing be held before the conclusion of the police investigation?

A recent Employment Appeal Tribunal (EAT) case, Secretary of State for Justice v Mansfield, confirmed that employers had a "wide discretion" on this question. As police investigations can take several months, many employers will not want to wait until the outcome of the police investigation is known before commencing disciplinary proceedings, especially if the employee is suspended on full pay.

However in certain cases an employer may want to postpone disciplinary proceedings until the police have concluded their investigation, for example where incidents of misconduct have to be reported to a regulatory or statutory body.

Employers should ensure that disciplinary proceedings then do commence when the police investigation has ended as substantial delays which are not for a good reason, could render any subsequent dismissal unfair.

Employees who exercise their right to remain silent

Sometimes an employee who is facing a police investigation into an alleged criminal offence at the same time as being investigated by their employer for gross misconduct, will refuse to answer any questions at an investigatory meeting or disciplinary hearing for fear of prejudicing their defence to the criminal allegations.

Frustrating as this is, employers should investigate and conduct their disciplinary proceedings as thoroughly as they can. The important point is that the employee is given an opportunity to put forward their position and answer questions, even if they don’t take that opportunity. Therefore employers should still invite the employee to attend any investigatory meeting or disciplinary hearing. If they state they have been advised not to answer questions by their criminal lawyer, ask them if they wish to provide a statement. The ACAS Guide also advises that employers warn the employee in writing, that unless they provide further information, a disciplinary decision will be taken on the basis of information currently available and could result in their dismissal.

Is the employee entitled to legal representation at the disciplinary hearing?

Employees have no statutory right to be represented by a lawyer at a disciplinary hearing. The right to be accompanied in Section 10 of the Employment Relations Act 1999 is limited to a trade union official or a colleague. This is still the case where the employee is facing criminal allegations.

However public sector employers will need to consider whether to allow legal representation where the criminal allegations overlap with the nature of the employee's work, so that a finding of gross misconduct will effectively bring the employee's career to an end.

In these limited circumstances an employee could argue that they should be allowed legal representation under Article 6 of the European Convention on Human Rights (the right to a fair trial) which is binding on public sector employers by virtue of the Human Rights Act 1998. Given the complexity of this issue and that one leading case on the subject is heading for appeal in the Supreme Court, public sector employers should consider obtaining legal advice in cases where a finding of gross misconduct or dismissal will end the employee's career.

What disciplinary sanction is appropriate?

Disciplinary action, including dismissal, will not be automatically fair just because the employee has been accused of committing a criminal offence. This remains the case even if the employee is subsequently found guilty of a criminal offence by the Courts. However the reverse is true and a dismissal will not be found to be unfair by an Employment Tribunal simply because the employee was acquitted of a criminal offence by the criminal Courts.

As with any other case, a disciplinary sanction should only be considered where the employer has a reasonable belief in the employee's guilt following a reasonable investigation. The level of sanction will not only depend, as in other cases, on the sanctions set out in internal disciplinary procedures and the employee's length of service and disciplinary record, but also the nature of the criminal allegation, what effect it has on the employee's position or job and whether it has an adverse effect on the employer's reputation.

Finally the employee must still be informed of their right to appeal against any disciplinary sanction imposed, preferably someone not involved in the investigation or disciplinary proceedings and who is in a senior position to the person who conducted the disciplinary hearing.

Conclusion

When faced with an employee accused of committing a criminal offence, although employers should not assume their guilt, neither are they expected to carry out a 'criminal level investigation' or apply the 'beyond reasonable doubt' test to whether or not they committed the offence. Instead what is important is that employers carry out a reasonable investigation, follow a fair procedure and apply a fair disciplinary sanction taking all the evidence and circumstances of the particular case into account.