Can I dismiss an employee if they commit a criminal act?
It is not uncommon for employers to have a knee jerk reaction and dismiss an employee if they discover the employee has been charged or convicted of a criminal offence, whether inside or outside of the workplace.
This may be the incorrect approach and instead must be handled very carefully using the correct procedure, or the employee may have the right to bring an unfair dismissal claim.
Most employer’s will have a disciplinary policy that details criminal offences committed at work as either misconduct or gross misconduct. However, offences committed outside of work can only be relied upon if the offence will make the employee unsuitable for their job. Consideration needs to be made of the nature of the offence and the type of work that the employee carries out.
When deciding whether to take disciplinary action, there is an obligation for the employer to act reasonably. This should include a full investigation of the facts and evidence, establishing the reliability of any evidence and deciding whether they have a reasonable suspicion that the employee is guilty of the conduct, and whether such conduct is serious enough to warrant disciplinary action.
Be aware that if there is a concern that there may be a threat to reputational damage if the employee is retained or the conduct may lead to a loss of trust and confidence, these are separate grounds that must be presented to the employee and investigated on their own facts. This will allow the employee the opportunity to respond to all allegations during the disciplinary process.
If the employer decides to impose disciplinary action, they must ensure that they follow their full disciplinary procedure. If they do not have a disciplinary procedure, they must follow the ACAS Code of Practice on disciplinary and grievance procedures. A tribunal may draw an adverse inference if a full procedure is not followed, including potentially increasing any compensation award as a result.
When a tribunal is deciding whether a conduct dismissal was fair, they will take into account all of the circumstances, including the following factors when considering the employer’s decision to dismiss:
- Was a full investigation completed, and is this supported with a clear documentary evidence?
- Was a fair procedure followed, including whether the employee was offered the right to appeal?
- Did the employer hold a genuine belief, on reasonable grounds, that the employee committed the misconduct?
- Did the employer act reasonably in treating the employee’s involvement in the offence as a sufficient reason for dismissal?
- Were alternatives to dismissal considered, for example a lesser sanction or a different job role?
If you have any queries or wish to discuss criminal acts during employment further, please do not hesitate to contact one of our experienced Employment Lawyers on 01202 525333 for further advice.