The Acas code states that where an employee is charged with a criminal offence not related to work, it is not in itself a reason for disciplinary action. There must be a genuine connection between the employee’s offence and the employment.
The general principle is that such a connection will exist in the following circumstances:
- the employee’s offence makes them unsuitable to continue in the job,
- the employee’s offence causes the employer genuinely to lose trust and confidence in the employee,
- the employee’s behaviour risks bringing the employer’s name into disrepute, and
- the employee’s colleagues reasonably refuse to continue to work alongside the employee who has committed an offence.
The types of criminal offence that are most likely to affect the employment relationship are those involving violence, dishonesty and sexual offences.
Should we suspend?
The Acas code provides practical guidance on dealing with suspension and states that an employer should:
- pay a suspended employee during the period of suspension;
- keep the suspension as brief as possible;
- and keep the suspension under review.
Do we have to pay a suspended employee?
The employer should also check the employee’s contract. An employer may have a contractual right to suspend an employee without pay provided they have reserved such a right in the employee’s contract of employment.
However, even where there is a clear contractual right allowing suspension without pay, the employer should be cautious about relying on such a clause. Withholding pay and benefits could be seen as a disciplinary sanction and create the impression that the employer had judged the employee “guilty” without first having conducted a proper investigation.
What if the employee is remanded in custody?
If the absence is likely to be prolonged because the employee has been charged with a criminal offence and is remanded in custody, the employer will have to decide whether, in the light of the needs of the organisation, the employee’s job can be held open.
Most employers will not usually wish to wait for the outcome of criminal proceedings before dismissing particularly when the employee is on full paid suspension and the criminal proceedings may take several months.
The following factors may be relevant when there are concurrent disciplinary and criminal charges:
- It might be impractical for an employer to wait, if a criminal case takes many months to come to court, before deciding on the employee’s future with the employer.
- The size of the employer’s business, the nature of the business and the number of employees will be relevant.
- Any provision made in the terms of the employee’s employment, including the employer’s disciplinary code, must also be considered.
- There is no rule that, once an employee has been charged with a criminal offence, an employer cannot dismiss them if the employee is advised to say nothing until the trial.
- An employer must offer the employee the opportunity to give an explanation and, if the employer is contemplating dismissal, this must be made clear to the employee.
- Where the employer only learns of a problem when the police advise that they are bringing charges against an employee, the employer should still undertake an investigation. The employee should be given the opportunity to state their position, even if they do not take that opportunity and the investigation and interview are fruitless.
