When an employee is subject to a police investigation or is charged or convicted of criminal misconduct outside of work, it can be a challenging area for employers to navigate. We set out our top tips for employers handling such situations.

Top tips for employers dealing with criminal misconduct outside of work 

When an employee is subject to a police investigation or is charged or convicted of criminal misconduct outside of work, it can be a challenging area for employers to navigate. We set out our top tips for employers handling such situations.

Key considerations

Even if the alleged conduct took place outside of work, it may still be appropriate for an employer to take disciplinary action against the employee. The seriousness of the offence, the nature of the employee’s job, the impact on work colleagues and customers and the reputational risk for the employer all need to be carefully considered when deciding whether action is appropriate in any particular case. Off-duty conduct that has no bearing on the employee’s employment is unlikely to justify disciplinary action. 

It is important that an employer does not make a rushed decision but treats the situation as it would any other form of potential misconduct that could lead to disciplinary action. 

Conduct an internal investigation 

Employers should conduct an internal investigation to gather all relevant facts and information about the situation. This may involve interviewing the employee in question, as well as any other employees who may have relevant information. Employers should ensure that the investigation is conducted in a fair and impartial manner, looking for evidence which support’s the employee’s case as well as evidence against it, with a view to deciding whether the alleged conduct is sufficiently serious to warrant disciplinary action.

The employer should consider whether suspension or (if there is a contractual right to do so) making temporary changes to working arrangements is appropriate. This may be the case, for example, where the employee’s alleged conduct is in the public domain causing employees who work alongside the employee or customers who deal with the employee to raise concerns about continuing to do so. As with any other period of suspension, this should be on full pay. Any period of suspension should be as short as possible and kept under review.

Notwithstanding the need to keep suspension as short as possible, an employer who chooses to suspend must be willing to face the long haul.  Criminal cases can take many months (or years) to come to trial and having decided to suspend, it is unlikely that any other step (aside from a return to work) can be taken unless more evidence comes to light.  It is unlikely to be fair and reasonable to dismiss an employee simply because they have been suspended pending trial for longer than might have been originally anticipated.

If the employee is remanded in custody or subject to restrictive bail conditions, then they may not be able to attend work. In such cases, the employer should decide whether the employee’s job can be held open depending on the length of time that the employee is likely to be unable to attend work and when it becomes a commercial necessity to find a permanent replacement. Whether the employee should be paid during the period, however, is easier to answer – if the employee is not ready and willing to work then they are not entitled to be paid. It is important, therefore, that employers distinguish between what is absence due to the employee not being available for work and what is absence due to suspension by the employer. 

Where a criminal case is ongoing, the amount of investigation an employer can conduct may be limited. It may be possible to obtain details from police or bail reports of the alleged offence, and if the employee consents, it may also be possible to speak to their legal representative for clarification of the case. Any such information should be carefully evaluated. However, if the employee is under police investigation, they may be advised not to say anything that could prejudice the criminal proceedings. In such cases, the employee should be warned that the employer will make a decision based on the evidence it does have available. 

Communicate with employees

It is important for employers to communicate with their employees about the situation. Employers should provide employees with accurate and timely information about the situation, while also respecting the privacy of the employee in question. Employers should also provide employees with information about the steps they are taking to address the situation as far as is appropriate in the circumstances.

Take appropriate action 

Based on the results of the internal investigation and legal advice, employers should take appropriate action. This may include disciplinary action against the employee in question, or other measures to protect the interests of the company and its employees. 

Any decision should be based on the findings from the investigation. If the police decide to prosecute, an employer will not be acting reasonably if it simply takes the fact of that decision at face value, without making its own enquiries. Equally, if the police decide not to press or continue with charges, or if the employee is acquitted, this does not mean that an employer cannot take disciplinary action based on its own charges; the employer will be deciding the case on a balance of probabilities, rather than the higher criminal test of beyond reasonable doubt.

If disciplinary action is to be taken, the employee may request that the disciplinary hearing is postponed until after the conclusion of the criminal case so that they can properly answer the case against them without jeopardising the criminal proceedings. Whether it is reasonable to agree to such a request will depend on the circumstances and employers will have to weigh up the seriousness of the offence and the length of time it will take for the case to come to court against the information it has available.

An employer may be able to dismiss the employee for the potentially fair reasons of conduct or some other substantial reason. However, it must also act reasonably in all the circumstances and that means considering the seriousness of the offence, the nature of the employee’s job and the employer’s organisation, the employee’s status and length of service and disciplinary record, the risk of reputational damage and/or damage to working relationships and any mitigating factors. 

Conclusion 

Handling situations where employees are charged or convicted of criminal misconduct outside of work can be challenging for employers. By following these top tips, employers can navigate the situation in a careful, fair and appropriate manner, protecting the interests of the organisation and its employees.