I have been told separately by two of my employees that the police have arrested and charged one of our staff with theft and public order offences arising from last week’s riots. I do not want such people in my workforce. Can I take action against him?
The UK may not win much at the 2012 Olympics but we clearly have some burgeoning talent available for the World Civil Disorder Championships, scheduled to be held behind a retail park in Catford around the same time. However, with a postman and a primary school assistant being among the first hauled before the magistrates, it seems that alienated teenagers and the otherwise dispossessed were not the only contenders on the streets last week. Like your chap, many appear to have been from the ranks of the employed, though for how much longer remains to be seen.
It is well established that employers can lawfully dismiss employees for misconduct outside working hours, provided that it has some direct or indirect effect on their work. The “Acas code of practice on disciplinary and grievance procedures” makes it clear that employers can and should consider the impact of a criminal charge or conviction on the employee’s suitability to do the job and in particular on his relationship with his employer, colleagues and customers. Public opinion is often premature and/or ill-informed, but it can still fatally damage your business if ignored. In your case, knowledge of the arrest and prosecution is clearly already out there among your staff and the strength of public opinion against the rioters is obvious from the newspapers. As employer you are also entitled to be very concerned by the nature of the charges, since both honesty and self-control will obviously be pre-requisites of your man’s employment.
It may be that your employee does the decent thing and confesses, in which case there would be no need for you to hold any investigation into whether he was guilty or not. Failing that, you cannot leap straight from his being arrested and charged to a dismissal without a fair process, including some intervening consideration on your part as to whether those charges are justified.
You should carry out whatever supplementary investigation you can, in particular by seeking to speak to the employee himself, his solicitor and the police in order to determine what he is going to say. If your employee indicates that he is unwilling to answer your questions in order to protect his position in relation to a criminal trial then you can effectively take this as an admission – if he was innocent of the charges then he could obviously say so. There is no “right of silence” or privilege against self-incrimination in internal disciplinary matters.
You do not have to wait until the criminal verdict before taking action against your employee. Criminal proceedings can take a long time, and you have to do something with your employee in the meantime. You could suspend him without pay pending the hearing, but remember two things: first, that without contractual permission this will be a breach of contract; and second, that the fairness of a dismissal is not conditional on your employee being found guilty by the criminal court.
The tests are different – the Crown must prove guilt beyond reasonable doubt, while you need only reasonable belief on a balance of probabilities – more like 51%. Anything falling between the two standards of proof would support a fair dismissal despite being insufficient to secure a conviction. In addition, criminal trials fall over for all sorts of technical and procedural reasons which have nothing to do with the factual merits of the prosecution, but nonetheless leave the accused walking free.
David Whincup, partner, Squire Sanders Hammonds, London
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