What should employers do when they’re made aware of criminal charges against an employee?

In a radio interview this morning, I was asked by BBC Scotland: “in November 2023 . . . the BBC said they were made aware, in confidence, that Huw Edwards had been arrested on suspicion of serious offences and released on bail, wasn’t there a case to fire him then?”

My answer, setting aside the awful nature of the crimes he has now pled guilty to, was that from an employment and legal perspective, dismissal would not have been the right course of action at that point in time. And here’s why:

We now know that Huw Edwards has pled guilty to the charges against him and with that, there is some degree of focus as to how the BBC handled this case. From an employment law perspective, this is perhaps a timely reminder of what employers have to consider when dealing with allegations of criminal activity, criminal charges not related to work, the right to suspend an employee and potential reputational damage arising from criminal charges.

What should you do when you’re made aware of a criminal charge or criminal conviction?

As I mentioned whilst participating in the discussion, the starting point is to understand what you, as an employer, are made of and when. That will dictate the first course of action.

Investigate

If you are made aware of a criminal charge and/or conviction, you should investigate to try to find out as much of the detail as possible.

Suspend?

You may want to consider suspending an employee pending the results of your investigations. Whilst suspension is no longer acceptable as a default position, it is accepted practice (and within the ACAS Code of Practice) that suspension can be considered if there is a serious allegation of misconduct and:

• There are reasonable grounds to believe that the employee might seek to tamper with or destroy evidence, influence witnesses and/or swap an investigation into the disciplinary allegation.
• Working relationships have severely broken down to the point that there is a genuine risk to other employees, property, customers or business interests if the employee remains in the workplace, or
• The employee is the subject of criminal proceedings which may affect whether they can do their job.

Discipline?

More substantively, when considering what action ultimately to take, just because an employee is charged with or convicted of a criminal offence that is not necessarily reason enough for disciplinary action. Employers must also consider what effect the charge or conviction has on the employee's suitability to do the job they are employed for; and their relationship with their employer, work colleagues and customers. Therefore, as an employer, you should consider the following:

• Does the offence make the employee unsuitable to continue in employment?
• Does the offence cause you, the employer, to genuinely lose trust and confidence in the employee
• Does the employee’s behaviour risk bringing the employer’s name into disrepute
• Are there any colleagues refusing to work with the employee?

Also, to avoid a finding of an unfair dismissal, you must carry out a reasonable process. That involves conducting a fair investigation, disciplinary hearing and offering the employee the right of appeal. Each of these stages can be complicated when other factors arise, such as those at play in this case: criminal investigations, the employee’s health and wellbeing and/or presence at work; so you will be wise to seek special legal advice during this time to safeguard the integrity of your process and ultimately any decision to dismiss the employee.

How do you address reputational risk during a disciplinary process?

As is the case with Huw Edwards, the criminal conduct engaged in by employees will often take place outside work. Nevertheless, reputational risk can still be a relevant factor for employers to consider when determining whether to take disciplinary action. Important factors that you should consider before making any decision on the continued employment of such an employee include:

• The nature of the offence. Naturally, certain offences (such as those involving sexual violence) will attract greater negative publicity and are potentially more likely to cause reputational risk.
• There is a difference between actual reputational risk and potential reputational risk. Actual risk may arise where there is evidence in the media or social media that the employee’s link to the business is being published alongside details of their offending. Potential reputational risk would arise in cases where due to the nature of the offence and the individual’s role, it’s likely that if people find out who they work for this would cause damage to the reputation of the business.
• The profile of the case and the parties. Many criminal cases go under the radar and are unlikely to gain any traction in the media, in which case the actual reputational risk for the employer may be more difficult to demonstrate to a tribunal. Others will be widely reported on and certain employers, particularly those in the public sector, are more susceptible to media scrutiny because of their profile.

Are you required to wait for the outcome of any criminal trial before taking action against an employee?

There are no set rules when determining whether to press ahead with disciplinary proceedings when there is a criminal trial pending. The most important thing is that you, as an employer, conduct your own investigation into the issues that affect the employment situation and to properly consider the options available. Subject to the band of reasonable responses test, you have the discretion whether to postpone disciplinary proceedings where the employee's alleged misconduct is also the subject of a criminal investigation and prosecution and again, you should consider the following factors 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 making a decision as to the future of the employee so far as their employment is concerned.
• Can you continue without that role being actively undertaken? The size of your business, the nature of the business and the number of employees will all be relevant factors. Tribunals recognise that employers, particularly small employers, may be placed in a dilemma when criminal charges are brought against an employee in circumstances relating to their employment.
• Any provision made in the terms of the employee's employment, including the employment contract and the employer’s own disciplinary code and policy.
• There is no rule preventing an employer from dismissing an employee who has been charged with a criminal offence but will to engage with the employer’s investigation because they have been advised by their criminal lawyer(s) 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 don't take that opportunity and the investigation and interview are fruitless.
• Rarely, the circumstances may be so blatant (for example, where an employee has been caught "red-handed", arrested and charged) and sufficiently detail is brought to the attention of the employer without the need for further investigation. Again, such situations require that caution and advice should be taken.

Takeaways for you — What does this all mean?

As can be seen, there are a multitude of factors that must be taken into consideration before a decision to dismiss is taken. Our recommendations would be:

• Be clear on your process and what steps you need to take before taking a decision on whether to dismiss (or impose other disciplinary sanctions)
• Don’t make assumptions — investigate properly and thoroughly before making a decision
• Check your contracts of employment and/or policies — do they address how you handle criminal convictions and/or charges — if not, should they?
• You must document your process and be able to demonstrate that you have:
  
  • Followed a fair process
  • A fair reason for dismissal (misconduct or some other substantial reason if relying on reputation risk)
  • Acted consistently with your own policy or procedure and the ACAS Code of Practice
  • Considered the reputational risk properly and relied on the correct reason for dismissal. The recent case of J Difolco v Care UK Community Partnerships Ltd is a good example of where an employee, charged with murder (but later found innocent) was found to have been unfairly dismissed. The finding was due to employer mainly relying on the employee’s failure to report the circumstances surrounding the arrest and court appearances. The employer had failed to evidence that any risk of reputational damage was discussed at the disciplinary hearing. Ultimately the employee was only awarded her basic award (£1862.97) and no compensatory award was awarded, because it was found by the employment tribunal that had the employer considered the reputational damage and the alternatives to dismissal, she would have been dismissed in any event.
  • Applied a proper thought process before reaching your decision to dismiss and that, in doing so, you have acted within the range of reasonable responses available to you.