Hi everyone,

I have a staff member who has been charged with offences of possession & intent to supply class A drugs. The company immediately suspended him on full pay, the suspension was initially to last for two weeks until the date of the court hearing.

However, the case has been delayed through evidence not being given to the defendent's lawyer, and delayed again, and now two months have passed, with the employee still suspended. The staff handbook  allows for dismissal on the grounds of a criminal offence, but as the hearing has not yet taken place, our employee is not guilty in the eyes of the law, and remains on bail / suspended from work.

The situation now is that the hearing may not take place for another two months at least. His manager is keen to replace this staff member, and we are wondering if coming to a settlement with the staff member might be the best way forwards.

Has anyone faced a similar situation?

Thanks.

Hi Sarah,

You do not say if the employee was in possession of the drugs and/or supplying them at work.  That will make a difference to what you are doing here.

If the issue is work related, i.e. the employee was arrested whilst at work, then you do not have to wait for the outcome of the court hearing.  In an issue of misconduct an employer only need establish a reasonable belief that the employee is guitly of the misconduct (having arrived at that belief after a thorough investigation).  Bringing illegal drugs into work would probably count as gross misconduct in most instances!  The fact that there is a court case pending is not a determinative issue and should not be relied upon by employers.

If the issue is not work related and the arrest happened outside work then the first question is why are you disciplining him?  I realise that sounds odd, but unless his actions can be shown to have brought the company into disrepute or unless he has broken a specific company rule then you potentially have no right to discipline him.

According to what you have written you may have the right to dismiss if he is convicted, but until then you need to establish what rule he has broken which allows you to suspend him.  What will happen if he is not convicted - will you allow him back to work?

You do not mention how much continuous service he has.  If it is more than a year he could make a claim for constructive dismissal on the basis of your actions so far.

I would strongly recommend that your company seeks more detailed advice on this issue.  I am happy to chat to you if you want to contact me directly, otherwise there are plenty of other specialists who contribute to these forums who would probably be equally happy to advise you.

Hope this has helped.

Dave

Hi Dave,

Thanks for your advice.

The arrest happened at the staff member's home. Our handbook has a clause which states if a staff member is aware of circumstances which could result in them receiving a conviction (eg's are listed, and include drugs related offences), then they are obliged to inform the directors of the company, who will treat each case individually and have discretion to take action.

The staff member did not inform anyone within the company, we found out through the press, and other staff members were talking about it. The Directors decided that the company had been brought into disrepute (even though the company name had not been mentioned), as we are based in a small tight knit community, where having your name in the local media is enough to identify you and link you to a company. The person's job role puts them into contact with staff in other local offices, from time to time. So the suspension was instigated on that basis.

However, time has gone on, and a conviction or otherwise may now take months, and having a suspended staff member is not the ideal situation to be in. Plus we feel it is difficult to introduce him back into the work place if we now wanted to whilst waiting for the court hearing, as circumstances have not changed between now and when he was arrested.

Perhaps more advice is needed as you suggest!

Regards,

Sarah