Sam Bailey gets legal guidance this week from Helen Badger, employment law expert at Browne Jacobson and Guy Guinan, employment partner at Halliwells law firm on whether dismissal is an option.
The question:
“If an employee has been charged with a crime and we feel it affects our trust in the employee as well as potentially having a negative impact on our client relationships can we dismiss the employee? The employee has admitted to committing the crime although his lawyer has led him to believe he will not face a conviction.
“So far we have allocated the time taken off for court appearances etc as 'unpaid'. Does anyone know where we would stand legally if we dismissed the employee?
“Any advice is gratefully received.”
Sam Bailey
The answers:
Helen Badger, employment law expert, Browne Jacobson
Determining whether dismissal of an employee on the grounds of a criminal offence outside of work is fair, will depend to a great extent on the impact it has on their ability to do the job.
Unfortunately as you do not say what offence this employee has allegedly committed or what his job role is, it is difficult to comment on your particular situation. However there are obvious situations in which a dismissal will almost inevitably be fair; for example where a field sales person required to drive every day as an essential part of his job is convicted, imprisoned and banned for drink driving. Another example would be a youth worker who has committed an offence against children, which would quite clearly be incompatible with their continued employment in that role.
If the offence affects your trust in the employee as well as potentially having a negative impact on your client relationships, as is the case here, there are certain steps to follow prior to dismissal.
Before taking any action it must be clear the exact reason why the situation affects your trust in the employee and how it impacts on his ability to do his job. The fact of having committed a criminal offence does not necessarily mean it will be fair to dismiss.
If, as you state, the employee has confessed to committing the offence you must be able to prove that the admission took place. To be absolutely certain, you should ensure that either the employee has admitted to the crime during the course of an internal investigation or disciplinary hearing, or that you have documentary evidence confirming the confession. Before deciding to dismiss you should also look at whether you can continue to employ but in an alternative role.
You must ensure that you comply with both your company procedures and the minimum statutory procedures before taking any disciplinary action against the employee. If the company does not have a formal written procedure, then the minimum statutory dismissal procedure requires you to set out in writing the nature of the allegations against the staff member and invite them to a meeting, at which the employee may be accompanied.
A disciplinary meeting then has to be held at which the employee is given the opportunity to defend himself against the allegations. Following the meeting you should notify the employee of the outcome in writing and offer a right of appeal if appropriate.
Helen can be contacted at: hbadger@brownejacobson.com
