Misconduct: Can employers dismiss an employee who has committed a criminal offence?

In light of the police fines issued to those who attended Downing Street events during lockdown, employment partner Sungjin Park explains how to deal with employees who break the law.

Although an employee committing a criminal offence is not an issue that comes up every day, the ongoing Partygate saga has raised fresh questions about how an employer should respond to alleged criminal behaviour. Despite a fixed penalty notice not resulting in a criminal record, the media have branded Boris Johnson the first sitting prime minister found to have broken the law and he has faced calls to resign. In a workplace context, though, how easy is it to remove an individual who has been charged with or convicted of a criminal offence?

Criminal offences as part of conduct

If an employee is dismissed for a criminal offence, the reason will usually be misconduct (conduct being one of the five fair reasons for dismissal under s98(2) of the Employment Rights Act 1996). However, sometimes the dismissal will be for ‘some other substantial reason’ (SOSR), which is explained later in this article.

In practice, a misconduct dismissal will be considered unfair if the employer has not formed a genuine belief on reasonable grounds (based on a reasonable investigation) that the offence in question has been committed (British Home Stores Ltd v Burchell [1980]). An employer need not await the outcome of a trial so long as it has obtained sufficient material to justify its decision to dismiss even if the employee is later acquitted (Harris (Ipswich) Ltd v Harrison [1978]).

Similarly, it was expressed in Secretary of State for Scotland v Campbell [1992] that where an employee has been convicted of a dishonest act, this may constitute reasonable grounds for the employer’s belief in their guilt but it must still carry out a reasonable investigation appropriate for the circumstances. However, it was held in another case that once an employee is convicted at trial, that will be sufficient grounds for dismissal. The fact-dependant nature of these cases means that an employer must consider any dismissal connected with a (potentially) criminal offence with care.

Interpretation of the Acas code of practice and guidance

The broad nature of what the employer needs to consider when dealing with a (potential) criminal offence is encapsulated in the Acas Code of Practice at paragraph 31. This states:

If an employee is charged with, or convicted of, a criminal offence, this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers.

This is supplemented by the non-statutory Acas guide, which states that:

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.

The guide explains that:

• the employer should investigate the facts as far as possible, come to a view and consider whether the conduct is sufficiently serious to warrant instituting the disciplinary procedure;
• where the conduct requires prompt attention, the employer need not await the outcome of the criminal prosecution before taking fair and reasonable action; and
• where the employer calls in the police, it should not ask them to conduct any investigation on its behalf, nor should they be present at any meeting or disciplinary meeting.

The code and guidance, although they are stated in simple terms, are more difficult to apply in practice, and employers and their advisers must consider the case law in this area.

The nature of the employee’s job is a crucial factor in determining whether a dismissal is fair. In Moore v C and A Modes [1981], it was held that where the alleged criminal conduct is fundamentally incompatible with the employee’s work, the dismissal will be fair. In this case, a supervisor in a department store was dismissed after stealing from another store nearby.

The circumstances and context of each case are important. For example, in Norfolk County Council v Bernard [1979], the dismissal of a teacher who was convicted of possessing cannabis outside work was held to be unfair since he worked with adults only. However, a different conclusion was reached in Tabor v Mid Glamorgan County Council [1981], where a teacher who taught teenage children was fairly dismissed for the same offence.

Connection between offence and employment

The closeness of the connection between the offence and the employment is a key consideration. According to Singh v London Country Bus Services Ltd [1976], conduct dismissals can relate to conduct outside of work:

… so long as in some respect or other it affects the employee, or could be thought to be likely to affect the employee, when he is doing his work.

The conduct must in some way reflect on the employer-employee relationship (Thompson v Alloa Motor Company Ltd [1983]).

CJD v Royal Bank of Scotland [2014] illustrates how these principles work in practice. Here, the Court of Session found that the dismissal of an employee who was charged with assault because he pushed his girlfriend onto a sofa was unfair because it was difficult to see how this action could reflect up the relationship between the employee and his employer.

In some cases, though, the criminal charge is considered so serious in itself that even where the conduct occurs outside work, the employer can fairly dismiss, regardless of whether the employee has committed the offence in question. In Kearney v Royal Mail Group [2011], the employment tribunal held that the dismissal of an employee charged with murder was fair because murder was such a serious offence.

Should the employer hold its own investigation?

When a criminal charge has been brought against an employee, it is still considered important for the employer to conduct its own investigation into the issues and consider the options available. Ali v Sovereign Buses (London) Ltd [2006] gave the following guidance when there are concurrent disciplinary and criminal proceedings:

• it may be impractical for an employer to wait before making a decision if a criminal case is going to take many months to come to court;
• the size and nature of the employer’s business, as well its disciplinary policy and the employee’s terms and conditions, may be relevant to whether it is fair to continue with its investigation or wait for the criminal proceedings to conclude;
• there is no rule that once an employee has been charged with a criminal offence, the employer cannot dismiss them if they have been advised to say nothing until the trial;
• the employer must offer the employee the opportunity to explain their conduct and if it is contemplating dismissal, it must make this clear to the employee;
• where the employer only learns of a problem when the police advise that they are bringing charges, it should still investigate and give the employee the chance to state their position, even if they don’t take that opportunity and the investigation and interview are fruitless; and
• in extreme cases, the circumstances may be so obvious (where the employee has been caught red handed, for example) that the employer does not need to investigate further.

To suspend or not to suspend

It may be appropriate to suspend an employee suspected of a criminal wrongdoing pending the outcome of a criminal trial or the employer’s internal investigation. However, the employer must consider the issue carefully and not be tempted into thinking that suspension is a safe option just because an employee has been charged with an offence.

The Court of Appeal case of Gogay v Hertfordshire County Council [2000] establishes that an employee should be suspended only if there is ‘reasonable and proper cause’ for doing so. Suspension without pay (unless there is a clause permitting this in the employment contract) is likely to invite an unlawful deduction from wages claim or even a constructive dismissal claim.

Employers should therefore ask themselves the following questions when considering whether suspension is appropriate:

• What is the correct process for suspending?
• Are we permitted to suspend?
• Might suspending breach trust and confidence?
• Might suspending be discriminatory?
• What are the employee’s pay entitlements during suspension?

In addition, employers should bear in mind the non-binding dicta by Elias LJ in Crawford v Suffolk Mental Health Partnership NHS Trust [2012] when suspending an employee. Elias LJ concluded that suspension should not be a ‘knee-jerk reaction’ and the employer should only go ahead after very careful consideration of the facts and the effect on the employee’s welfare.

Not conduct but SOSR?

It may be appropriate to consider the reputational damage that a criminal charge could have on the employer’s business. Leach v Office of Communications [2012] is an example where the employer was held to have fairly dismissed the employee for SOSR as it considered that the allegations carried a significant risk of reputational damage. The allegations were that the employee had indecently assaulted a child and had visited brothels known to supply children. Although the employee’s job did not involve working with children, child protection was one of Ofcom’s responsibilities.

However, Lafferty v Nuffield Health [2020] expressed the view that it would not be open to an employer to dismiss an employee for reputational reasons just because they faced a criminal charge. There must be some relationship between the allegations and the potential for damage to reputation.

Even where SOSR forms part of the reasons for dismissing an employee facing a criminal trial or charged with a criminal offence, the employer must still follow fair and reasonable procedures before taking the decision to dismiss.

This article was first published in the May issue of Employment Law Journal (www.lawjournals.co.uk).