Guy Guinan is an employment partner at Halliwells law firm.
The ACAS guidance states that an employee should not be dismissed or otherwise disciplined merely because he or she has been charged with or convicted of a criminal offence. However it does recognise that there may be circumstances where the criminal conduct has an adverse impact on the employer that will merit disciplinary action and potentially dismissal.
First of all it is important that you investigate the facts as far as possible. You should not rely just upon the police investigation. In some circumstances the police may ask that no action is taken. It will still be important in the context of employment law to show that you have made all reasonable efforts to investigate all relevant circumstances.
Alternatively the employee may refuse to cooperate with the disciplinary investigations and proceedings. Again this should not deter you from taking action. The employee should be advised in writing that unless further information is provided, a disciplinary decision will be taken on the basis of the information available and could result in dismissal.
Here it appears that you have investigated the matter and that the employee has admitted the offence.
Careful consideration must be given to the conduct in question. You must assess whether it is sufficiently serious to warrant instituting the disciplinary procedure or considering dismissal. In some circumstances this will depend upon the employee’s role.
If, for example, the employee works in an office without any driving duties and is convicted of speeding it may not be appropriate to take any action. However the answer may be different if his job involves extensive driving or having a clean driving licence is a condition of employment. Similarly an employee convicted of an offence involving dishonesty is more likely to face dismissal if in a position of trust and responsibility.
The offence may be so serious and of such a nature as to cause bad publicity. If it is likely that there could be media coverage and that this will reflect badly on the business then dismissal may be fair for commercial reasons.
In addition the employee who has been charged with, or convicted of, a criminal offence may become unacceptable to colleagues or specific clients which will result in third party pressure to dismiss. This too can mean that dismissal will be fair on business grounds. However other options must be considered. Can the employee be transferred to another department?
Generally it is important that you are able to show that a fair procedure has been followed and that you have considered all the circumstances. Remember that the statutory dismissal procedure has to be followed or there will be a finding of automatic unfair dismissal. You will need to invite the employee to a disciplinary hearing.
The invitation must be in writing setting out the allegations, the evidence and warning that there is a possibility dismissal may result. The employee must be given every opportunity to make representations including having a representative present. The decision should be given and the employee advised of his right to appeal.
Guy can be contacted at: [email protected]
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