How to deal with an employee involved in criminal proceedings

A summary of how employers should deal with an employee involved in criminal proceedings including whether and when the employer should take disciplinary action and when to investigate and/or suspend the employee.

The current pandemic has led to new restrictions on what people can and cannot do. The gap between non-enforceable guidelines and the law has been narrowed because these regulations create new criminal offences. The police have the power to arrest when some of those restrictions have not been followed. So perhaps inevitably, employers may face dealing with an employee who has been arrested more frequently. Whatever the circumstances, it is not easy.

Should the employer do anything?

Typically, an employee is likely to be arrested over something that has happened outside of the workplace. As such, an employee’s arrest will not necessarily require an employer to take any action and there are some situations where an employer may choose not to do so, such as where an alleged motoring offence has taken place and the employee is not required to drive as part of their job.

However, where the alleged conduct has a bearing on the employee’s employment, then some form of action by the employer is likely to be needed. For example, this would be the case where the alleged criminal activity:

• relates to conduct at work
• impacts the employee’s suitability for their role
• impacts the employee’s ability to work (because they are remanded in custody)
• affects the employee’s relationships with colleagues
• impacts on the employer’s reputation.

When to investigate

Where the employer decides that the allegations are sufficiently connected to the employee’s employment, the first step should be for the employer to investigate the allegations against the employee itself to decide whether disciplinary (or similar) action is necessary.

The investigation should be an opportunity for the employee to make a voluntary statement or provide their explanation on the allegations and for the employer to gather all the available evidence. The investigation should not be used as an attempt to obtain admissions of guilt from the employee to support the criminal proceedings.

Where there is the possibility that criminal proceedings could be taken against the employee, the employee may have been (professionally) advised that participating in a workplace investigation could prejudice the employee’s criminal defence and that, as a result, they refuse to provide any information to the employer. Similarly, the police may be reluctant to share information with the employer which might jeopardise the police investigation. This can make it difficult for the employer to properly investigate.

However, an employer is also unlikely to want to delay dealing with the matter until the outcome of any criminal proceedings is known, not least because this can take several months and even years. Indeed, Paragraph 11 of the ACAS Code requires employers to hold the disciplinary meeting “without unreasonable delay whilst allowing the employee reasonable time to prepare for the meeting”. Employers will need to investigate the facts as far as possible, carrying out their own investigation and not relying on the police to do it for them. It is also important not to delay where the employer is considering dismissal on the grounds of gross misconduct as otherwise this can undermine the fairness of the process followed.

If, having done the investigation, the employer decides to go ahead with the disciplinary hearing, it is advisable to include in the invite letter that, to the extent the employee refuses to co-operate in the disciplinary process, the employer will reach a decision based on the evidence available.

Suspension

An employer should not suspend as a knee jerk reaction. Some initial investigation will normally be required before suspension is considered. That said, some alleged crimes will be so serious that suspension with very little investigation will be appropriate. Any suspension should be kept under review and should be for as short a period as possible. 

Taking disciplinary action

Even where an employee is charged or the employee is prosecuted this does not negate the requirement for employers to follow a fair disciplinary procedure and as such, employers should provide employees with the opportunity to attend a disciplinary meeting and respond to the allegations before taking any disciplinary action.

If the employee refuses to co-operate, then the employer can make a decision on the evidence available provided that the employee has been warned that this will happen (see above). The disciplining officer should look for evidence of innocence as well as guilt in order to ensure a balanced approach.

Employers are not bound by the outcome of a police investigation or criminal proceedings and often this is because the standards of proof are much higher in a criminal investigation. It might be, therefore, that the police decide not to continue with the proceedings, but the employer still goes ahead with the disciplinary process.

As with all such misconduct cases, if the decision is taken to dismiss, it is important that the employer establishes beforehand a reasonable belief in the employee’s guilt based upon a reasonable investigation, and that the level of investigation carried out was within the band of reasonable responses in order for the dismissal to be fair.