If you are an employer and become aware that an employee is suspected of, or worse has been found guilty of, committing a criminal offence, what are your options? Our latest blog explores some potential scenarios…
An employee has been charged with an offence but hasn’t been tried yet. I am concerned about the organisation’s reputation. Can I take any action?
The recent Employment Appeal Tribunal (EAT) case of Lafferty v Nuffield Health indicates that you may be able to. Mr Lafferty was a hospital porter whose duties included transporting anaesthetised patients. He was charged with a serious sexual offence, and his employer decided to dismiss him pending trial, considering both potential reputational risk and duty of care to patients (the employer said that they would reinstate him if the charges were later dropped). The EAT found the dismissal to be fair.
However, any decisions should be taken on a case-by-case basis, as the EAT were clear that it would not be appropriate for an employer to dismiss an employee for reputational reasons just because the employee had been charged with a criminal offence; a relationship would have to exist between the allegations and the reputational risk.
The police have contacted me for information about an employee who they are investigating on suspicion of a criminal offence. Will giving them information breach GDPR?
Data Protection legislation contains an exception that would allow an employer to disclose information about an employee for the purposes of prevention or detection of crime or the apprehension or prosecution of offenders. The employer is also not required to inform the employee that the information has been provided in such circumstances. As such, in most cases, data protection legislation will not prevent an employer from cooperating with the police.
Do I need to wait for the outcome of a criminal trial to make a decision about their employment?
Not necessarily, so long as a fair process in accordance with the ACAS Code on Disciplinary and Grievance is undertaken. For example, former teacher Eleanor Wilson featured in the news in 2018 as a result of allegations that she had sex in an airplane toilet with a 16-year-old student. The jury at the Crown Court hearing her criminal case were dismissed in 2018 having been unable to reach a verdict and she did not face a retrial, however, in 2017 she was nonetheless banned from teaching indefinitely by a teaching tribunal. The burden of proof is different in criminal and employment procedures; criminal guilt must be established beyond reasonable doubt, rather than on balance of probabilities.
An employee has been sent to prison. Can I dismiss them?
How you handle this will depend on factors such as the reason they have been sent to prison, and the length of the prison sentence. For example, if an HGV driver is sent to prison for dangerous driving, it is likely that their employer will be able to dismiss them as a result of their conduct, as the criminal offence relates to their job. This would still be subject to a fair disciplinary process. If the criminal matter is unrelated, however, then the length of the sentence becomes more relevant, as when an employee is sent to prison for a long time, they are unable to fulfil their duties under their contract, and as such it may be fair for the employer to dismiss them on those grounds. Again, a fair process should be followed. An employer should consider that where an employee is imprisoned for a short time, for an offence that is unrelated to their work, it may be reasonable for the employer to hold the employee’s job open until they are released.
If you have an employee who has had an encounter with the law, and are considering how to proceed, a member of the View HR team will be pleased to discuss your options with you.