The case of ex-footballer Adam Johnson hit headlines in 2016 with the revelation that Sunderland Football Club’s chief executive Margaret Byrne was told about his sexual activity with a 15-year-old fan more than a year ago.
Johnson was sacked after he pleaded guilty to two charges of grooming and kissing a girl of 15. He denied two further more serious charges of sexual activity with her. He was cleared on one count but has been found guilty on the other (sexual touching). The judge has warned that a custodial sentence is inevitable.
So what should employers do if an employee faces a serious criminal charge for their conduct outside work?
Are employees obliged to tell their employer of criminal charges/offences?
In many cases an employer will not know that the employee has been charged or even that they’ve been convicted of an offence outside work. Generally staff are under no obligation to tell their employer unless they are specifically asked or if the employment contract requires them to disclose such matters. Even then employees have no obligation to disclose spent convictions unless they work in certain professions or regulated occupations (such as financial services), or with children or vulnerable adults.
Further reading
Back to basics: criminal offences outside of the workplace
Supreme Court rules against 'disproportionate' criminal record checks
Collecting criminal records during recruitment not GDPR-compliant
When can you sack an employee who has been charged with/convicted of a criminal offence?
There is no general right to sack an employee because they have been charged with or convicted of a criminal offence. Instead employers must consider the effect of the charge or conviction on the individual's suitability to do the job and their relationship with their employer, work colleagues and customers. Relevant matters include the nature of the offence, the nature of the person’s job, the extent to which it involves contact with other employees or the public, and the employee’s seniority or rank.
If there is no adverse effect on their suitability the charge or conviction should have no bearing. However, if the employee is unavailable for work because they are in custody the employer will need to consider whether that job can be kept open in light of the business’ needs.
Certain offences will affect an employee’s suitability for their job, and others may impact on workplace or business relationships. For example, an employer is entitled to dismiss a retail worker who is convicted of theft because honesty is an essential pre-requisite for working in a shop.
Sexual and violent offences are also likely to damage relationships with colleagues and customers/clients, who are unlikely to want to work with or do business with someone who has committed such offences.
Damage to reputation may also be relevant. Disassociating itself from an employee’s bad behaviour might be especially important for an employer with a mixed customer base that aims to cultivate a family-friendly image, for example. However, employers generally cannot make unsubstantiated assertions that their reputation has been damaged.
If they want to dismiss an employee on this basis they would need to point to examples of customers withdrawing contracts or refusing to allow them to tender because of the charge or conviction.
In Sunderland’s case it is likely that the club dismissed Johnson to protect its standing with fans as a family club, its general worldwide image, and because his teammates might object to playing alongside him.
Can you sack before the employee has been found guilty?
In some cases it may be possible to dismiss an employee on the basis of the charge alone.
This will usually only be the case if the offence is a very serious one. For example, the dismissal of a staff member because they had been charged with murder was ruled to be fair. A charge of rape or child sex offences may be regarded in the same way. If the individual is acquitted of the offence this does not mean that the dismissal will necessarily be unfair.
This is because the employer is not held to an absolute standard of proof when making its decision to terminate; it is only required to act reasonably.
An employer considering dismissal must still comply with basic principles of fairness, such as giving the employee the opportunity to state their case and taking into account any mitigating circumstances.
Dan Begbie-Clench is partner at workplace lawyers Doyle Clayton
