Dealing with an employee who has been arrested, charged, or convicted of an offence unrelated to their work is undeniably a challenging task for any employer. It’s a situation that requires careful consideration of both legal obligations and ethical principles. Employers must find a balance between protecting their business interests and respecting the rights of the employee. This blog will guide you through the legal and procedural steps involved in making such a difficult decision.

Understanding the Legal Framework

1. Fair Grounds for Dismissal

In accordance with the Employment Rights Act 1996, employers must demonstrate a fair reason for dismissal, such as conduct, capability, redundancy, statutory restriction, or “some other substantial reason” (SOSR).

SOSR stands for “some other substantial reason,” a catch-all category that allows employers to dismiss employees for reasons not covered by the other four fair dismissal grounds. This can include situations where the employee’s continued employment might harm the business, even if the reason is unrelated to their work performance.

An unrelated arrest, charge or conviction might justify dismissal under SOSR if it affects the trust and confidence between the employer and employee, poses a risk to the business, or damages the company’s reputation.

2. Protection Against Unfair Dismissal

Employees with at least two years of continuous service have the right to claim ordinary unfair dismissal. To avoid such claims, employers must ensure the dismissal is both substantively fair (having a valid reason) and procedurally fair (following a fair process).The employer must demonstrate that the dismissal is reasonable and justifiable under the circumstances.

Assessing the Impact of the Conviction

1. Nature of the Arrest, Charge or Conviction

Employers should consider whether the arrest, charge or conviction directly affects the employee’s ability to perform their job or undermines trust and confidence. For instance, a financial crime may be more pertinent for a role involving financial responsibilities than a minor unrelated offense.

2. Reputation and Risk

Moreover, employers must evaluate the potential reputational damage and risk to the business. In some industries, particularly those involving vulnerable groups or high public trust, any criminal offence may be deemed incompatible with the role.

Ensuring a Fair Procedure

1. Thorough Investigation

To reduce the risk of an unfair dismissal claim, employers should conduct a thorough and impartial investigation to understand the circumstances of the arrest, charge or conviction and its relevance to the person’s employment. This includes reviewing the nature of the offense and any mitigating factors.

2. Employee Meetings

Engaging in meetings with the employee and allowing them to explain their side and provide context is also key for an employer considering dismissal.

The Right Not to Self-Incriminate

The right against self-incrimination is primarily relevant in criminal proceedings, protecting individuals from being compelled to provide documents or information that could incriminate them in ongoing or future criminal cases. However, this right can also impact employment situations, particularly when investigations are still underway.

An employee who has been arrested and charged retains the right to withhold information that might be used against them in a criminal case. Employers need to be careful when questioning such employees to avoid violating this right. However, once an employee is convicted, they are found guilty, and the protection against self-incrimination for that specific offense no longer applies. If there are ongoing investigations or additional charges, the right against self-incrimination may still be relevant.

Making a Decision

When coming to a decision, an employer will need to make a well-documented decision based on the investigation and meetings with the employee. If the conviction severely impacts the role or business, dismissal may be justified.

The employer must also consider their duty of care towards the employee, which involves safeguarding their well-being, especially during challenging times.

Conclusion

Dismissing an employee with a conviction relating to matters outside of work involves navigating various legal complexities. Employers must handle these situations with care, ensuring fair treatment and compliance with employment law. By conducting thorough investigations, seeking legal advice, and maintaining clear policies, employers can make informed decisions that protect both their business and their employees’ rights.

For specific help and guidance, please contact [email protected].

The government published non statutory guidance on the public sector equality duty (PSED) in section 149 of the Equality Act 2010.

The guidance reports on the following:-

· Covers what the PSED is and who is bound by it;

· Sets out how to comply with the PSED; and

· It includes a section whether and equality impact assessment must be published in all cases. Click here for more information on the guidance.

On 28 October 2023 reforms under the Police, Crime, Sentencing and Courts Act 2022 amended the Rehabilitation of Offenders Act 1974 to shorten the length of time some criminal convictions must be declared to employers.

The changes reduce the rehabilitation period for less serious offences, provided no further offence is committed in that time and introduce a rehabilitation period for custodial sentences of over four years, which were previously unable to become “spent”.

The new criminal record disclosure timescales are set out below:

Sentence	Adults	Under 18’s
(Adult) Community Order/Youth Rehabilitation Order	The last day on which the order has effect	The last day on which the order has effect
Custody of 1 year or less	1 year	6 months
Custody of more than 1 year and up to 4 years	4 years	2 years
Custody of more than 4 years*	7 years	3.5 years

In the case of De Bank Haycocks v ADP RPO UK Ltd [2023] EAT 129, the Employment Appeal Tribunal decided that an employee’s dismissal for redundancy was unfair due to the absence of meaningful consultation at the formative stage of the redundancy process.

Background

The Claimant was employed by the Company (ADP) to recruit new employees for a client company. In March 2020, due to the COVID-19 pandemic, demand for new employees diminished by 50%. In May 2020, the decision was made by ADP to reduce the number of recruitment staff.

In June 2020, the company decided to score 16 team members against specific selection criteria. The Claimant came last on the scoring.

On 30 June 2020, the Claimant was called to a meeting and was told that there was a requirement for redundancies. He was invited to a further meeting on 8 July 2020 and a final meeting on 14 July 2020 where he was handed a letter terminating his employment on the grounds of redundancy. At no point prior to his dismissal, was he provided with his selection scores nor told how he had scored against his colleagues.

Judgment

The Employment Appeal Tribunal decided that:

• There had been a clear absence of meaningful consultation in the redundancy process; and
• The absence of consultation at a stage when employees could have proposed a different approach to any aspect of the proposed process and therefore could have had the potential to influence the employer’s decision was indicative of an unfair process.

The Fawcett Society has published guidance on fertility at work.  Its research highlights that women experience the effects of infertility more profoundly than men.

A survey of 2,000 workers who had undergone fertility treatment in the last five years found that 68% did not tell HR, 59% did not tell their manager, 43% said they experienced negative comments at work and 19% resigned.

The employer guidance offers some recommendations to assist employers on how to effectively manage the growing impact of fertility related matters within the workplace. These include:

• Fertility policy- This should clearly outline an employee’s entitlement in respect of fertility support and flexible leave. It is best practice to offer paid leave for fertility appointments, flexible working, mental health support and sickness leave.
• Training for managers- It is important for managers to feel empowered to have two way supportive conversations with their employees.
• Wellbeing- Encouraging wellbeing within the company through wellbeing health first aiders and counselling services.
• Recruitment- Include fertility friendly benefits when advertising job adverts.
• Culture- Promote an inclusive culture by implementing wellbeing initiatives such as monitoring and support groups. 

Click here to read the guidance – https://www.fawcettsociety.org.uk/Handlers/Download.ashx?IDMF=9c88d40b-1351-4d6b-ad93-a65663caf226