How to deal with an employee accused of a crime.

For an employer facing having to deal with an employee who has been arrested or charged with any criminal offence it can be a problematic and perilous situation to manage.

While dismissal may seem the obvious step to take, the outcome to each case is not always so simple and straightforward.

Get it wrong and it could prove costly if the employee opts to take legal action, which they can do if unfairly dismissed after being arrested, charged or even convicted of a serious criminal offence.

Regardless of the alleged offence or crime committed, it should not automatically result in the individual being sacked, especially if it has no connection to their work.

There are of course cases where the charge is considered so serious, the employer can fairly dismiss, regardless of whether the employee has committed the offence in question e.g. murder.

An employer must always consider if any offence, irrespective of how serious it is, is one which has, or could have, a direct impact on the continued  employment of the member of staff.

It is a situation Manchester United, one of the world's richest football clubs, is now having to consider.

Striker Mason Greenwood recently had rape and assault charges against him dropped [1 cited 6.2.23]

It came a year after the allegations were first made against the 21-year-old and he was suspended by the Premier League club.

A club representative is reported to have said: ‘…The club will now conduct its own process before determining next steps.’

How such a high profile club will investigate and respond, will be closely scrutinised and no doubt widely discussed and debated.

The player has not been prosecuted for any crime. However, the court of public opinion appears to have reached its own verdict. How, or even if, it will impact on the outcome of the investigation remains to be seen.

After the Crown Prosecution service announced the case was being dropped, a board member of a Manchester United fan-run supporters’ trust tweeted: ‘No way should he play for us again’ [2 cited 6.2.23]. While reports have emerged claiming the players do not want him back [3 cited 6.2.23].

Manchester United is also one of the top brands in world football and it is understood to have significant commercial partnerships, which can have strict anti-embarrassment clauses. It could reportedly give sponsors the option to cut ties if the club does not handle the situation appropriately and it reflects badly on a sponsor [4 cited 6.2.23]

So, the Old Trafford club finds itself in a challenging situation in determining what is the appropriate action to take in the circumstances.

All work-related cases involving criminal allegations require a careful approach. Even in cases where an employee has a conviction or is convicted of an offence, caution still needs to be exercised as dismissal should not always inevitable.

The Metropolitan Police in response to a freedom of information request  in 2021 revealed 150 serving police officers had criminal convictions [5 cited 6.2.23]

This was during the period between 3 March 2016 and 3 March 2021. Those convictions included offences of assault, possession of drugs, firearm/ air weapon /ammunition offences and theft/fraud.

The Met was forced to apologise following the recent conviction of ex police officer and serial rapist David Carrick after it emerged he had come to the attention of police over nine incidents, including rape allegations, between 2000 and 2021 [6 cited 6.2.23]

In cases where an employee is suspected of, charged with or convicted of a criminal offence, it is not normally in itself reason for disciplinary action. This is covered in The ACAS Code on disciplinary and grievances at work [7 cited 6.2.23]  

Unjustly terminating the contract of an employee who has faced, or is facing, criminal allegations can be found to be unfair in some instances.

The circumstances and context of each case are important.

So, here is our essential guide to what an employer should do if an employee is subject of a criminal investigation.

Suspension

Consideration should be given as to if suspending the employee is appropriate.

As an employer you must exercise caution and not automatically assume suspension is the only course of action because an employee is facing criminal allegations.

The individual should only be suspended if there is reasonable and proper cause to do so.

Suspension should be considered if the criminal proceedings are likely to affect whether the employee can do their job.

It should not be a knee-jerk reaction and it should be a step which is only taken after extremely careful consideration of the facts, and the impact on the employee’s welfare.

ACAS note that ‘suspension can leave individuals feeling prejudged, demotivated and devalued.’

Conduct your own investigation.

It is vital you conduct your own independent and fair investigation. Do not make a decision based solely on information provided by the police.

You should investigate the facts as far as possible. Come to a reasonable view about them and weigh up if the conduct is sufficiently serious to warrant initiating the formal disciplinary process.

It is understandable if you want to hold off initiating your own disciplinary investigation for fear of interfering in the criminal investigation. But you do not have to do so.

It may be unreasonable to wait before making a decision. If an employee is charged and pleads not guilty, it can take many months before the case is heard in court.

However, you decide to proceed it is crucial that you give the employee an opportunity to explain their conduct and that you warn them that dismissal is a potential outcome if the conduct is considered sufficiently serious.

If you find yourself in a situation where the employee refuses to cooperate with your investigation, it does not prevent you from continuing with it.

Make sure you inform the employee in writing that unless further information is provided, a disciplinary decision will be taken on the basis of the information available and could result in dismissal.

Making a decision

After conducting an investigation that is as fair and thorough as is practicable then decide on an outcome.

If your findings have bearing on the employee’s suitability to perform their duties make a decision on the appropriate action to take.

The key consideration is the link between the offence and the role performed by the member of staff.

It can be reasonable to dismiss an employee if the conduct in some respect or other affects them, or could be thought to be likely to affect them, when doing their work.

When an employee is charged with an offence, a chief consideration will be potential damage to the reputation of your business.

There must be an evident link between the allegation, and the potential for damage to reputation for a dismissal in such circumstances to be fair.

The employee should not be dismissed simply because they have been charged with an offence.

As an employer you may face pressure or threats of a walk out from other employees who want you to dismiss an employee who has been charged with, or convicted of, a criminal offence. As an employer you should exercise caution and not bow to such pressure.

Should the employee be dismissed in such circumstances you will have to justify the reasonableness of such an outcome should the matter proceed to an employment tribunal.

Section 107 of the Employment Rights Act 1996 makes it clear you must consider all relevant factors before reaching a reasonable decision [8 cited 6.2.23]

As with any case in which an employee faces allegations of wrongdoing you must always follow fair and reasonable procedures before making any decision to dismiss.

If you issue any disciplinary sanction allow the employee to appeal.