The next time you read about a case of murder, child abuse or arson in the press, consider this: the alleged offender is probably an employee as well as a police suspect. Late last year, supermarket chain Tesco faced just such a dilemma when staff member Tom Stephens was arrested on suspicion of murdering five sex workers in Ipswich. Tesco took the decision to suspend Stephens, but he was later released without charge.
According to employment law specialists, Tesco was treading on thin ice with this decision, risking being sued for wrongful dismissal. So how should HR respond to a member of staff who is suspected of a crime, or any other wrongdoing at work, such as sexual harassment, bullying or internet misuse?
Knee-jerk reactions
Hannah Reed, senior employment rights officer at the TUC, says the case should serve as a warning to employers never to make knee-jerk reactions.
“I’m not criticising Tesco because I don’t know all the facts of the case. I am simply saying the key thing for employers to bear in mind is that just because an individual is being investigated by the police is not necessarily grounds to suspend or dismiss them,” she says. “A fair, no-blame approach is critical until the employer has carried out its own investigation, separate from the police investigation – a rule that should also apply to cases of suspected wrongdoing at work where the police are not involved.”
In some situations – for example, where an employee faces accusations of bullying – it may be possible to move them into a different role or department until the investigation is over. In other situations, where it is deemed necessary to keep the employee away from the workplace (or where the employer has no choice, such as where the staff member has been charged and not bailed or is held while being questioned), Reed says that one means of demonstrating an unbiased position is to only ever suspend on full pay.
But Deb Emer, head of personnel at East Sussex County Council, believes in avoiding the term ‘suspension’ altogether wherever possible. “If there has been an allegation made against an employee that has an impact on their work, and we therefore need to investigate, we would always seek verbal and written agreement from the individual to ‘refrain’ from work on full pay during that time,” she explains. “This ensures neutrality, although if the person doesn’t agree, we may formally suspend. Occasionally, we have done that.”
Where employees plead guilty to a crime or wrongdoing, the HR process is generally more straightforward, says Emer. “We’ve had a couple of employees involved in drink driving offences outside work. Because the employees admitted it and they had responsibility for driving at work, we dismissed them. It’s when people plead not guilty that it becomes more complicated,” she says.
The chief challenge, she explains, lies in the fact that the burden of proof is significantly lower in employment and civil matters than in criminal cases – so while a jury needs to work to the rule of ‘beyond reasonable doubt’, employers can make a judgement based on a balance of probabilities.
She provides the example of an employee who is ‘refrained’ because she has been charged with assault. “This employee is in a caring role involving vulnerable children, so we need to be really careful about reinstating her. It may be that she is found not guilty in a criminal court, but our investigation – which, in this case, would be largely based on what the police would tell us -finds that she did it.”
Internal investigations
Another issue to consider is that your own internal investigations could come to a conclusion before a case even reaches court. “Sometimes court cases take months, so it’s beneficial to an employer not to wait, especially if you’ve suspended the employee on full pay,” says Kirsty Leyland, head of colleague relations at Asda.
But Matthew Brain, partner in employment law at Irwin Mitchell, cautions HR to be careful not to prejudice a criminal enquiry with the company’s own investigations. “Particularly in a high-profile case, you can imagine the jury being influenced by discovering that the defendant has been dismissed from work for the offence. It may be better to dismiss on the grounds of internal rules that are breached, rather than the offence in question.”
This, says Andrew McNeils, chief commercial officer at recruitment and HR consultancy Hudson, is one of the reasons it is vital to have robust policies. “It means it’s easier to prove if someone has been in breach of their terms and conditions,” he explains.
If you do decide to proceed with an internal investigation, there are a number of golden rules. Establish the objectives of the investigation from the outset, preserve evidence, maintain a good relationship with the police (where they are involved), and consider potential consequences in terms of publicity and shareholders. Ideally, appoint a senior manager to oversee the investigation and gather as many facts as possible, while balancing this with the possibility you may not have access to all witnesses.
Should the worker be cleared for the crime or wrongdoing, that doesn’t mean everything returns to normal.
Leyland advocates that privacy rules should be taken very seriously. “While colleagues will make their own judgement calls from the grapevine, local gossip and press coverage, we wouldn’t as an employer discuss the case with them at all at any point – when they are suspended, dismissed or returning to work,” she says.
‘If colleagues are worried because it is an emotional crime or wrongdoing, we would reassure them that we have taken into consideration the safety of all staff.”
The accusations around Stephens had minimal impact on Tesco’s reputation as an employer. However, in the unlikely case your organisation lands in a similar position, following the correct procedures before jumping to conclusions will keep you, not just your staff, out of the dock.
Employee investigations: know your rights
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Employers cannot…
- dismiss an employee automatically if they are suspected of a crime or wrongdoing – they can only take this course of action where the nature of the crime or wrongdoing is relevant to that person’s employment and where an employee is found guilty
- suspend an employee automatically if they are suspected of a crime or wrongdoing – employers should first seek alternatives (such as moving them into a different job or department). Where alternatives are not possible, employers should ideally seek agreement from the employee to refrain from work while an investigation is under way.
- rely on the police investigation – employers are required to carry out their own investigation into a crime or wrongdoing wherever feasible.
Employers can…
- suspend an employee if they refuse to refrain from work and the employer believes the employee’s presence in work will jeopardise the employer’s reputation the health and safety of the individual and/or their colleagues or the employer’s investigation. In circumstances where the employee cannot work (for example, if they are held in police custody), suspension is also a viable option.
- dismiss an employee after conviction and when imprisonment means they are unable to work.
- dismiss an employee when an internal investigation finds that they have brought the employer into disrepute or where there is a breach of trust and confidence.
Source: Emma Burrows, partner and head of the employment department, Trowers and Hamlins
