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.
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