Can Employers Dismiss Employees for Criminal Behaviour Outside the Workplace?

Employers often face difficult decisions when employees engage in criminal behaviour outside of work. This article explores the legal considerations and challenges employers must navigate when deciding whether to dismiss employees for actions that could damage the company’s reputation, including the potential for reclaiming salary in cases of serious misconduct.

In recent days, social media timelines have been flooded with posts showing images of rioters, urging the public to help identify and prosecute them. In some instances, these posts were followed by updates that the individuals had been identified and subsequently lost their jobs.

Furthermore, the BBC are facing legal issues following the news that former employee, Huw Edwards, has been charged with possession of indecent images of children.

These incidents raise important questions:

• Can employers dismiss employees for criminal behaviour outside the workplace?
• Can employers reclaim salary paid to employees convicted of a criminal offence?

In these situations, legal advice is crucial. Please get in touch with us if you require legal advice about the actions of an employee.

Handling Employees Accused of Criminal Behaviour Outside the Workplace

When it comes to dismissing employees for actions outside of work, the starting point is section 98(2)(b) of the Employment Rights Act 1996 (“the Act”). This provision states that it may be fair to dismiss employees for reasons related to their “conduct.” Conduct can range from major issues like theft, dishonesty, or damage to property (often considered gross misconduct) to minor or repeated infractions, such as habitual lateness.

However, relying on conduct as a reason for dismissal requires the employer to act reasonably, as outlined in section 98(4) of the Act. This usually involves conducting a thorough investigation and holding a disciplinary process in accordance with the ACAS Code of Practice on Disciplinary and Grievance Procedures. If the alleged misconduct involves the police and leads to criminal proceedings, things can become more complex, particularly if a custodial sentence is a possibility or if the employee’s actions attract media attention.

What Challenges Do Employers Face?

Employers face several challenges when dealing with employees accused of misconduct outside the workplace. First and foremost, they must consider the well-being of other staff members. Can the accused employee continue in their role? Alternatively, should they be suspended on full pay while the investigation is ongoing? If the offence occurred outside of work, the employer may have limited information to base their investigation on. The employee might be on bail for a significant period. Of course, the employer may not want to continue paying full salary for longer than necessary.

If employers choose to dismiss employees, they could face an unfair dismissal claim (if the employee has over two years of continuous employment). This could happen if the dismissal is perceived as pre-judging the criminal trial or if the employee is eventually acquitted.

A wrongful dismissal claim might also arise if the employer summarily dismisses the employee without notice. The key issue here is the reasonableness of the employer’s actions. A well-justified decision following a proper disciplinary process may reduce the risk of a successful claim against the employer.

How Should Employers Handle Dismissals?

Employers should avoid making rash decisions in the heat of the moment. It’s important to carefully consider whether the company’s reputation is genuinely at risk if the employee continues working there. This can often be more challenging to prove than anticipated.

In cases where an employee may be unavailable for work in the medium to long term, an employer could consider dismissing them for “Some Other Substantial Reason” (SOSR). This is a catch-all provision for situations that don’t fit neatly into the other categories under section 98 of the Act. The employer must be able to justify that the dismissal was reasonable in all the circumstances.

Dealing with Employees Who Harm the Company’s Reputation

In the context of the recent riots, what should an employer do if they identify one of their employees participating in violent disorder or inciting hatred online?

The criminal courts have been swift in sentencing those who pleaded guilty. This simplifies matters for employers whose employees are quickly imprisoned. If the employee receives a community sentence, the employer should conduct a full investigation before deciding on dismissal. Whether dismissal is justified will depend on the specifics of the case:

• Does the employee have a customer-facing role?
• Are they in a position of responsibility or working with vulnerable people?
• Has their relationship with colleagues been compromised by their actions?

Can Employers Reclaim Salary from an Employee Convicted of Criminal Offences?

Following the news that Huw Edwards has pleaded guilty, could the BBC legally demand the return of salary paid during the period between his arrest and resignation?

Former BBC Reporter Huw Edwards
Photo by Jwslubbock, CC BY-SA 4.0, via Wikimedia Commons

The BBC is reportedly seeking £200,000 from Edwards. Most employment contracts allow for the recovery of over-payments made in error by the employer. However, they usually don’t cover the repayment of salary paid under the contract to the employee.

If an employee lied about their involvement in criminal proceedings or misled the employer about their plea (I am not talking about Huw Edwards here), the employer might argue that this breach of trust could justify a claim for repayment of the salary.

However, in most cases, especially for lower-paid employees, the costs of legal action may outweigh the potential recovery. This makes such claims difficult to pursue. Drafting specific contract clauses for clawback in these situations could be a solution.

Key Takeaways for Employers

Employers should avoid hasty decisions, carefully consider all circumstances, and conduct a thorough investigation before taking any action.

Receiving expert legal advice is key in these situations. Please get in touch with us if you require legal assistance regarding the actions of an employee.

You can contact us on 01707 329333 or email law@crane-staples.co.uk for more information.