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Managing employees suspected or convicted of criminal offences
Written by Susie Lockheart on 20 March 2024
For employers, navigating the delicate balance between an employee’s personal life and their professional responsibilities can be challenging. One particularly thorny issue is how to handle employees who are suspected or convicted of a criminal offence outside the scope of their employment.
Unfortunately, these scenarios are not uncommon. Whether an employee finds themselves under police investigation, their prior criminal history is unearthed, or they are prosecuted during the course of their employment, these circumstances demand a thoughtful and nuanced approach from employers.
Understanding the rights and responsibilities of both parties is essential in managing these situations effectively. Not only must employers uphold their duty to maintain a safe and productive work environment, but they must also navigate legal and ethical considerations surrounding privacy, discrimination, and rehabilitation.
In this blog, we delve into three distinct scenarios that employers may encounter when dealing with employees who have become entangled with the criminal justice system outside of the workplace.
1. Employees under police investigation
In situations where you discover an employee is under police investigation – or where police have entered the workplace to arrest a staff member – employers should prioritise maintaining a calm and professional environment while also ensuring legal compliance and balancing the rights of all parties involved.
Initially, it’s crucial for employers to ascertain the nature and scope of the investigation without compromising the integrity of the process. Employers must conduct their own investigation, and while they should not rely solely on the police, they can liaise with them. The employee should be part of the investigation and asked to provide an explanation.
Employers should also consider the potential impact on workplace morale and productivity, proactively communicating with staff within the parameters of GDPR to provide reassurance and address concerns as appropriate.
Depending on the severity, the circumstances of the situation, and whether the allegations will have an impact on the employee’s ability to do their job, it may be necessary to temporarily suspend the employee pending investigation outcomes, ensuring adherence to employment contracts, company policies, and relevant legal requirements.
It’s imperative to handle such matters with sensitivity and discretion, seeking legal guidance, if necessary, to mitigate potential disruptions and ensure that a fair process is undertaken.
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2. Employees who are convicted of a criminal offence while employed
The Acas Code of Practice on disciplinary and grievance procedures says: “An employee should not be dismissed or otherwise disciplined solely because he or she has been charged with or convicted of a criminal offence. The question to be asked in such cases is whether the employee’s conduct or conviction merits action because of its employment implications.”
This means employers should avoid knee-jerk reactions and instead think about how the offence affects the employee’s ability to do their job. Here, employers should take into account:
- The nature of the offence;
- The type of role performed by the employee;
- The impact the conviction has on the organisation; and
- The employee’s previous track record and employment history.
For instance, it may be justifiable to dismiss a cashier facing theft charges, or a nursery teacher discovered to be in possession of child pornography on their personal laptop.
You will also need to think about the employee’s relationship with their work colleagues and customers. If an employee has committed a violent offence, for example, colleagues may refuse to work with them due to concerns for their safety.
Further, if details of the employee’s transgressions become public knowledge, it may harm your company’s reputation. Before dismissing for this reason, you will need to be able to demonstrate that such damage has occurred, such as having specific proof that clients have pulled out of agreements as a result of the employee’s misconduct.
If an employee receives a prison sentence in relation to something that has occurred outside of work, it may be fair for the employer to dismiss them under “some other substantial reason” as they are unable to perform their job duties due to incarceration. Generally, the employer does not have to wait for the outcome of the criminal trial and can form its own view
Ultimately, what is the most reasonable course of action will depend on the individual facts of the case, ensuring that a fair process is followed, so it’s always safest to seek legal advice.
3. Employees whose past criminal offences come to light later on
During the application process, candidates do not have to voluntarily disclose any criminal convictions. This means that if an employer wants to know about any criminal history, they need to ask. Even if the candidate is directly asked, they usually have a legal right not to disclose that conviction.
This means that you may encounter a situation in which previous criminal offences suddenly come to light, leading to a range of reactions from colleagues, including concerns about safety, trust, or just general disapproval of the individual involved. These concerns may manifest in verbal or physical altercations in the workplace, especially when the offences are sexual in nature or involve children, and potentially put pressure on the employer to dismiss.
In such circumstances, a balance is required between respecting individual employee’s rights – especially if the conviction is spent – and the strong emotional reaction of the workforce.
If there has been a deliberate attempt to conceal an unspent criminal conviction, for example where an employee who was required to make a disclosure of any unspent convictions during the recruitment process failed to do so, or disclosure of a subsequent conviction is a condition of employment, this could be treated as serious misconduct and dismissal may be justified.
However, if there is no issue of dishonesty or concealment and the employee has not been asked or required to make a disclosure, the position becomes more complex. The employer could still have a potentially fair basis for dismissal, based on “some other substantial reason”, especially if the criminality carries a significant reputational risk for the employee or is relevant to the employee’s role. However, the employer must be able to show that the employee’s actions were serious enough to justify dismissal.
The actions of colleagues may also have to be considered in terms of disciplinary procedures.
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This is a difficult area of employment law where each situation turns very much on the facts of the case and advice should be sought at an early stage. For pragmatic, professional advice specific to your situation, call WorkNest’s Employment Law experts on 0345 226 8393 or request a call back using the button below.
