Our employment & criminal defence teams sat down for a discussion around the impact of being accused of a criminal offence on employment, giving explanations for both employers and employees.
The nature of the allegation
Situations can arise in two ways:
- It may be that the employee is being investigated by the police for something that has arisen outside of work. They may be released under investigation or on bail.
- It could be that it’s something that has arisen inside the workplace.
In the latter situation, it’s likely to be the employer that has reported it to the police.
When do you have to disclose an investigation for an accusation outside of work?
In the event that the employee is being investigated for something outside of work, then in the spirit of openness, they should really advise their employer.
It may be that it has absolutely nothing to do with work. For example, say someone who works in a shop near their house is facing allegations of a speeding offence. They walk to work; it’s not going to affect their working life at all.
Generally, in those cases, there’s probably no need to advise their employer of it.
It may, however, be that an employee works in an accounts department and they’re accused of shoplifting. They should be telling their employer in this case.
In an employment contract, there is likely to be a clause saying you are obliged to tell your employer if you’ve been accused of a criminal offence or convicted of certain offences.
If our criminal defence team is working with a client who has been accused of a road traffic case, we encourage them to check their employment contract. This is because it is becoming more common in employment contracts that, even if you’re only accused of a criminal offence, and not convicted, you should still tell your employer.
Equally, if someone needs to drive for work, an employer needs to know whether a ban will be short-term or longer-term and how they can manage it. If it is short term then the person may be able to keep their job.
Professional Roles & Regulation
In regulated professions such as legal, financial and medical, there may be a requirement under your code of conduct to advise your employer or governing body of an accusation or conviction no matter the severity.
What should an employer do if an employee informs them of a criminal accusation?
It is important to note that it shouldn’t warrant an automatic disciplinary procedure. The action needed will depend on the type of accusation.
The first consideration is how serious the alleged offence is. For example, there is a stark difference between the aforementioned example of a driving offence when they don’t need a car for work, versus an accusation of a sexual offence when the accused is a teacher.
In serious cases like the latter, you would have to start disciplinary proceedings in order to investigate the claims further. Often the person under investigation would have to be temporarily suspended on full pay under safeguarding rules while more information is gathered.
Unfortunately, when this is done, although we should take an innocent until proven guilty approach, immediate suspension can tar a reputation even when allegations have not been true. As such, the approach should be confidentially and appropriately managed.
Can an employee be dismissed or suspended on the basis of the accusation?
In some cases, yes. The criminal burden of proof beyond all reasonable doubt is very different to what an employer has to look at in whether they could dismiss somebody.
An employer must follow a fair procedure that involves investigations. Sometimes, in very serious matters, they cannot investigate until after a criminal matter has been dealt with.
For example, our team had a case of a few years ago which was racially motivated and an employee was murdered in the workplace by a colleague. The perpetrator was in custody and the employer wanted to know if they could dismiss the individual, but the employer was not permitted to carry out their own investigations.
There is an argument from an employment law perspective that the employment contract has been frustrated, meaning it comes to an end automatically by operation of law.
When employers are in circumstances like this, the context must be considered, and the length of time someone is to spend in custody will dictate how the process can be dealt with.
It’s always best to consult a legal professional in the instance of very serious offences to ensure that you are not interfering with police investigations but also that you are adhering to employment law at all times.
What are the rights of an employee when they are convicted of committing a criminal offence; are they protected in any way?
Unfair dismissal rights are the main protection from being dismissed in any employment situation. It is important to bear in mind that it only applies to employees who have two years or more of service. If they have under two years of service an employer has the power to dismiss someone in such circumstances.
We must also consider discrimination legislation. If somebody has mental health issues that they say caused them to commit an offence, that’s slightly different; they have the protection of the Equality Act as well.
We have had a case where somebody was suffering from schizophrenia. He stopped taking his medication and then sexually assaulted two women at work. He was dismissed, as most people would expect to happen. At court, however, he claimed unfair dismissal because the employer ought to have written to his GP and his consultant psychiatrists should have got more information about if he disclosed his illness. They must also consider, that if he started taking his medication again, is he still a risk in the workplace?
In cases where mental health issues are involved, the employer is under a greater obligation to carry out further investigations. They must get medical reports and put the dismissal process on hold until all facts are clear, which can make the process a lot longer. If you do dismiss too quickly, not only could you have the unfair dismissal claim, but you can have a discrimination claim as well, and compensation for discrimination is unlimited.
Lots of people in the criminal justice system do have mental illness problems. As far as criminal offences go, that can either assist or undermine their case.
Guidance on dealing with criminal accusations and employment
Whether you are an employer trying to navigate an investigation into criminal accusations, or you are an employee who believes they have been unfairly dismissed due to a criminal accusation, our employment law team is here to help.
If you have been accused of a criminal offence, whether it relates to something at work, or is something that may impact your ability to work in the future, our crime team may be able to assist.
If you are unsure about anything mentioned in this article and require legal guidance, you can get in touch using the form below and one of our team will be in touch. Alternatively, feel free to call us on 0161 969 3131.