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What can employers do if one or more of their employees were involved in the recent rioting?

The riots which took place across the country on 6-9 August 2011 caused widespread disruption, not just for those businesses damaged by the disturbances, but also the unprecedented number of arrests and convictions has meant that employers are left questioning their options.

A recent judgment by the Employment Appeal Tribunal in Burns v Santander UK Plc UKEAT/0500/10/RN has indicated that employees may lose their entitlement to wages if they are remanded in custody awaiting trial as this is an "avoidable impediment" on their ability to work. It will depend on the circumstances of the case as to whether or not it is possible to withhold pay. If the employee is released on bail and so able to attend work, it may be appropriate to suspend the employee on full pay pending the outcome of criminal proceedings.

Whether or not it is appropriate to bring disciplinary action against an employee who has been charged or convicted of being involved in the disturbances will depend on the facts of the individual case, as well as the employer's disciplinary policy which may include criminal conviction as an example of gross misconduct. The nature of the employer's business and the employee's role will also be relevant factors as well as the potential impact on the employer's reputation. In any event, employers will need to ensure that a fair process is followed, and if a disciplinary sanction is considered to be appropriate, employers will need to ensure that it is within the range of reasonable responses to the employee's actions i.e that they are able to rationalise it.

Case law has indicated that, even where an employee is convicted of "hooliganism", it will not automatically follow that dismissal will be reasonable. The Court of Appeal case of Post Office v Lilliard [2001] EWCA Civ 940 involved an employee who had been caught on camera at the 1998 football World Cup throwing bottles at opposing fans and assaulting a police officer. This case implies that it may be fair to dismiss, as long as dismissal falls within the range of reasonable responses in the circumstances.

However, the two cases of M Doherty v Consignia ET/2205635/00 and T Doherty v Consignia ET/2204805/00 make clear that it may not always be fair to dismiss in such circumstances. These cases involved two brothers who were caught on camera at a football match kicking an opposing fan. In those cases, the Tribunal held that it was not within the range of reasonable responses to dismiss as the employer had, amongst other things:

failed to take into consideration the employees' clean disciplinary record to date;

failed to treat the employees' conduct consistently with that of other members of staff; and

not had sufficient evidence to indicate that there had been a substantial effect from the employees' conduct on its business.

That said, the courts have often held that a fair dismissal will follow provided that following reasonable investigation the employer honestly believed that the employee had carried out the alleged misconduct, and acted reasonably in considering dismissal to be within the range of reasonable responses.

If one or more of your employees is alleged to have been involved in the recent rioting, it is important to carry out a fair process. You should:

Carry out a full and fair investigation. In particular, any investigation should take care not to be influenced by outside events. In certain circumstances it may be appropriate to consider press coverage as evidence, however, care should be exercised here.

Once the investigation is completed, the employer should consider whether disciplinary action is appropriate, taking account of its disciplinary policy.

Any disciplinary hearing should be held in accordance with the ACAS Code of Practice and your disciplinary policy although it may be appropriate to miss stages of a policy that is clearly stated to be non-contractual. In particular, the hearing should be held by a manager who has not been involved in the investigation and the employee should have a reasonable opportunity to consider all the evidence prior to the hearing, together with the opportunity to be accompanied by either a trade union representative or a colleague (and any other companion permitted under the employer's policy).

Following the disciplinary hearing, consider all the evidence when deciding what sanction to impose; in particular has the employee's conduct had a substantial impact on the employer's business and its reputation, and does it affect the employee's ability to carry out their role?

As an Employment Tribunal will consider the facts of each particular case, whilst the guidance above may increase the likelihood of a fair dismissal, it does not guarantee that any dismissal will be fair. If you are at all unsure about the circumstances of a particular case, you should seek legal advice.

Rebecca Kershaw, solicitor, Barlow Robbins LLP