Why does it matter?
When misconduct happens outside of the workplace but is serious enough to amount to a criminal offence it can be tricky to determine if this falls within an employer’s remit.
The ACAS Code of Practice provides that being charged with, or convicted of, a criminal offence is not automatically a reason for disciplinary action or dismissal. HR teams need to carefully consider what, if any, action would be appropriate to take in this scenario.
Do…
Approach matters on a case-by-case basis. Always consider the specific facts and circumstances. Do not have a blanket policy covering all offences.
Assess the effect of the charge or conviction on the employee’s suitability to do their job, as well as its impact on their relationship with their employer, colleagues and potentially customers.
Off-duty conduct that has no bearing on employment is unlikely to be a fair reason to discipline or dismiss the employee, although more severe sanctions may be justified against regulated employees, those in positions of trust, or with roles involving children or vulnerable adults.
Take account of the reputational risk. When an offence is unrelated to the employee’s employment disciplinary action may still be warranted if the circumstances of the case reflect negatively on the company reputation.
Consider whether you can keep the employee’s job open if they are serving a prison sentence. The size, nature and needs of the business should be taken into account when making this decision.
It might be especially appropriate to consider doing so where the underlying conviction has no bearing on the employee’s suitability for the role and when the sentence is short.
Be aware that an employee being held on remand or subject to a custodial sentence is not entitled to receive wages and a contract may become frustrated in the event of longer sentences (for example, longer than 12 months).
Don’t…
Rely solely on police findings. Employees must be given the opportunity to explain the situation. While employers can rely on the findings of a criminal investigation, they should take a critical approach to the information received and carry out their own investigation into the facts.
Delay unnecessarily. An employer is not required to wait months for the outcome of a criminal trial before making a decision on a disciplinary sanction if it is impractical or unreasonable in the circumstances to do so. In these circumstances, in line with the general requirement to act promptly, employers can proceed based on the information currently available.
Just think about their current role (if an employee would be prevented from carrying out their current role as a result of the offence).
For example, if the role involves driving and they have lost their driving licence you should consider if there are any alternative roles available within the organisation that may be suitable (such as an office- or warehouse-based role) or if temporary adjustments could be made to their role (such as using public transport).
Forget about regulators. Certain regulators, including the Financial Conduct Authority, General Medical Council and Solicitors Regulation Authority will expect to be notified of criminal conduct by people in their professions and it could affect an employee’s ability to maintain any regulatory approvals required for their role.
Rachel Morgan is a managing associate at Linklaters
This piece appeared in the February 2020 print issue. Subscribe today to have all our latest articles delivered right to your desk
