What should an employer do when an employee is arrested for a serious offence?

You could be forgiven for thinking if a worker is arrested for murder or child-related offences that dismissal should be the inevitable, only and immediate response – but it is not always the case.

For an employer dealing with such a situation can be challenging given the seriousness of the allegation and related criminal investigation.

Despite the seriousness of any criminal accusation, an employer should avoid a knee-jerk reaction and dismissal should not be an automatic sanction.

The difficulty when dealing with such matters was highlighted in two recent cases.

• An Edinburgh tribunal is reported to have found a care home worker was unfairly dismissed while on trial for murder [1] cited 6.8.24

The worker was said to have been dismissed over the employer’s fears about potential damage to its reputation.

The employee’s name, age, and hometown were reported in the media, but there was no reference to her employment as a care assistant

The court acknowledged the reputational risk of employing someone ‘working with vulnerable residents whilst on trial for murder’, but concluded that the dismissal was unfair because the employer failed to adequately explain this to the employee.

The employee was acquitted following a trial.

The judge ruled  the dismissal was unfair and she was entitled to a basic award of just under £1,900.

However, the risk of reputational damage from the criminal case would have meant she would have been dismissed in any event. As a result the compensatory element of the award was reduced to nil.

• Former BBC newsreader Huw Edwards recently pleaded guilty to making indecent images of children following his arrest, about eight months earlier, in November 2023 [2] cited 6.8.24

At the time of his arrest Edwards was suspended by the BBC following media allegations published in July last year.

The story was about an unnamed presenter paying a teenager for explicit photos. Edwards was later named by his wife, but no criminal offences were found to have been committed in that case.

The charges came from a separate investigation.

The BBC said in a statement after Edwards appeared in court that it was made aware in November that he had been arrested on suspicion of "serious offences".

The corporation added: "If at any point during the period Mr Edwards was employed by the BBC he had been charged, the BBC had determined it would act immediately to dismiss him."

Edwards, who was the BBC's highest-paid newsreader, was paid up until he resigned in April this year.

Although the employee was arrested in both highlighted cases, the care assistant had been charged when dismissed, whereas Edwards resigned before he was charged and later pleaded guilty.

An employer should exercise caution when dealing with any case  in which an employee has been arrested or charged with any offence.

It is a situation that can be challenging and complex. Balancing legal obligations, the rights of the employee, and the interests of the company requires a careful and measured approach.  

Here we explore the steps employers should take in such circumstances and also examine whether it is ever fair to dismiss an employee before a criminal trial.

First steps when made aware of the arrest of an employee

Confidentiality

When first informed, it is essential to treat the information with the utmost confidentiality. Revealing details can create problems, as doing so has the potential to harm both your reputation and that of the employee.

Gather as much information as possible

Seek to obtain as many details as you can about an offence or the charges, but keep in mind an employee’s right to privacy. You should be aware of the nature of any offence, the employee’s perspective, and any legal proceedings.

Communication directly with the employee of their legal representative is advisable, as it can enable you to gather necessary information and make fair and fully informed decisions.

Reasonably assess the situation

Establish if the alleged offence has any impact on their role and the workplace. Consider whether the offence or charges relate to their required duties, the nature of the work environment, and any potential risks to colleagues, clients or your reputation.

Get legal advice

Speak to an employment law expert to understand the legal implications of the situation and the best way to respond to it. Legal advice is vital to help you avoid any subsequent claims of unfair dismissal [3] cited 6.8.24

Considerations for suspension

Should the employee be suspended?

ACAS advice is you should only suspend someone if it is needed, it is a serious situation and there is no alternative [4] cited 6.8.24

If an offence is directly related to an employee’s work or their presence in the workplace could harm an investigation or has the potential to damage your reputation, then it can be appropriate to suspend the individual in such circumstances.

The employee should receive full pay while on suspension, unless there is a clause in the contract of employment that stipulates suspension is without pay.

Offer support to the employee.

Fair Process

The reasons for suspension should be clearly explained and communicated to the employee. The decision should be confirmed in writing. The period of suspension should be as brief as possible and kept under review.

Conducting an investigation

Impartial investigation

Conduct your own independent investigation, which should be thorough and fair and separate from any criminal proceedings. It will enable you to make a fair and fully informed decision based on an employee’s conduct and its impact on the workplace, rather than just relying on the criminal charges.

ACAS advise that in cases where the police are called in they should not be asked to conduct any investigation on your behalf, nor should they be present at any meeting or disciplinary meeting. 

Gathering evidence

Collect all relevant and available evidence such as witness statements, documents, and any other key information that relates to the matter.

Get the employee’s version of events

It is essential that you give the member of staff a reasonable opportunity to explain their side of the story, regardless of the nature of the offence.

It helps to ensure that any decision you then make is fair and has taken into account all aspects of the situation.

Disciplinary action

Is dismissal appropriate?

Before making a decision to terminate the employment contract, assess whether the alleged offence amounts to a breach of its terms, gross misconduct or poses a significant risk to your business.

Factors to consider include the severity of the offence, its relation to the employee’s duties, and the potential impact on your business.

Action other than dismissal

Reasonably contemplate alternative options e.g. redeployment to a different role, additional supervision, or other measures that might mitigate risks without resulting in immediate dismissal.

Dismissal before a criminal trial

Legal position

Dismissing an employee before a criminal trial is complex, but it can be done and requires adherence to the principles of fairness and reasonableness.

In the case Lafferty v Nuffield Health, the employee, a hospital porter, was arrested and charged with assault with the intention to rape

The employer’s decision to dismiss before trial was considered fair because it was found to have followed a reasonable and thorough process in addressing the situation.

The employer had conducted a detailed risk assessment, considering the nature of the charges and their potential impact on its reputation and the safety of patients and staff. They also took into account the employee’s position, which involved access to vulnerable individuals.

Each situation is unique, and any decision to terminate he employee’s contract should be made on a case-by-case basis, considering all relevant factors and the specific circumstances of the offence and its implications on the workplace.

Any decision to dismiss prior to a trial should follow a fair process and the employee should be given a right to appeal [7] cited 6.8.24

Finally

Handling the arrest and charge of an employee for a serious offence requires a balanced approach that respects the rights of the employee while protecting the interests of the company.

Employers must act with caution, ensuring confidentiality, conducting thorough investigations, and adhering to legal and procedural fairness.

While dismissal before a criminal trial can be justified in certain circumstances, it must be based on reasonable grounds and follow a fair process.