The long arm of the law reaches the workplace

Gurbux Singh decided to walk after his poor showing  at Lord’s, but is a criminal conviction a
fair basis for dismissal

The recent resignation of Gurbux Singh as Chairman of the Commission for
Racial Equality after admitting to a public order offence raises interesting
questions regarding an employer’s right to dismiss an employee for being
convicted of a criminal offence.

Singh was fined £500 and ordered to pay costs by magistrates after being
involved in a confrontation with police outside Lord’s cricket ground in July.

Singh decided to resign, but what right would the CRE have had to dismiss
him had he not agreed to go?

Can an employer dismiss an employee following conviction for a criminal
offence that appears unrelated to their duties to their employer?

Disrepute charge

The leading case on this relates to a riot involving English football
hooligans attending the 1998 World Cup in France. Following the events in
France there had been widespread condemnation of those involved by the British
Government and in the press.

The Post Office was identified in a national newspaper as the employer of a
man involved in the violence who had been convicted of football hooliganism
offences and sentenced to 40 days’ imprisonment.

The Post Office suspended the individual, pending disciplinary proceedings,
alleging gross misconduct and the employee was dismissed in January 1999. He subsequently
claimed unfair dismissal.

The case went to the Employment Appeal Tribunal which took the view that it
was reasonable for the Post Office to dismiss the employee on the grounds that
his behaviour had brought it into disrepute.

This case therefore shows that an employee can be dismissed for a criminal
conviction not related to their job if that conviction brings the employer into
disrepute.

However, the press interest which this case aroused made this argument far
more compelling.

The conviction of an ordinary employee for a relatively minor criminal
offence (which attracts little or no interest from the press or public) is
unlikely to bring an employer into disrepute. In those circumstances, it would
be harder for an employer to argue that such a dismissal was a fair one.

Gross misconduct

Most contracts of employment now contain the contractual right for an
employer to dismiss an employee convicted of a criminal offence (other than a
minor driving conviction), for gross misconduct.

However, this would only protect an employer from a contractual claim of
wrongful dismissal brought by an employee.

An employee would still be able to bring a claim for unfair dismissal.
Before deciding on what action to take, an employer should look at the circumstances
surrounding the conviction and in particular consider:

– The type of criminal conviction. Some are clearly going to be more serious
than others – for instance, those that call into question the honesty of an
employee;

– The seniority of the employee. A company director, for example, should be
expected to maintain higher standards than the office junior;

– The nature of the company’s business. Clearly, some areas are more
sensitive than others, for instance, working with children; and

– The extent to which the conviction will affect the employee’s ability to
carry out their job. A bus driver, for example, who lost their driver’s
licence, is going to be unable to continue to work.

The advice to an employer must always be to act reasonably in the circumstances
and carry out a full disciplinary procedure.

Sarah Keeble is a partner in the Olswang employment department

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