What employees do their in free time is normally none of your concern, but the game changes when you discover an employee has committed a criminal offence.

Whether they have assaulted their neighbour, stalked an ex-girlfriend, committed criminal damage or been involved in a burglary or fraud scheme, you may be very worried.

As their employer or manager, you may be concerned about the effect it will have on colleagues, whether suppliers will withdraw their contracts and the damage it will cause to the company’s reputation and relationships with customers.

Can you dismiss an employee who is charged or convicted of a criminal offence?

The Acas Code of Practice on Disciplinary and Grievance procedures says: ‘If an employee is charged with or convicted of a criminal offence, this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers’.

What this means is that you do not have a general right to take disciplinary action or dismiss an employee as a result of being charged or convicted of a criminal offence, but you will need to think about how it affects the employee’s ability to do their job. You should take into account the nature of the offence committed, the type of role performed by the employee, the impact the conviction has on the organisation and the employee’s previous track record and employment history.

It may be fair to dismiss if, for example,

• a cashier in a shop has been charged of theft.
• a video of a pharmacist selling drugs at the pub goes viral and they are subsequently arrested.
• a driver who delivers food to elderly people’s homes has been convicted of drink-driving.
• a nursery teacher is found possessing child pornography on their home laptop.

You will need to think about the employee’s relationship with their work colleagues and customers. If one of your senior employees has committed a violent offence, their colleagues and subordinates may not want to work with them and wish to raise concerns about their safety at work. If it becomes public knowledge and is splashed across the newspapers, it may harm your company’s reputation. You will need to be able to demonstrate this damage has occurred, for example, have specific proof that clients have pulled out of agreements as a result of the employee’s misconduct.

What is the most reasonable course of action will depend on the individual facts of the case, therefore we would always recommend you seek legal advice.

What if the employee is given a long custodial sentence?

If an employee is given a long custodial sentence, an employer may argue that the employee’s Contract of Employment has been ‘frustrated’. This means that an unforeseen circumstance makes it impossible for the parties to fulfil the terms of the contract. As such, the employment relationship between the employer and employee is automatically terminated. As this type of termination is not considered a dismissal, the employee cannot bring a claim for unfair dismissal.

However, Employment Tribunals do not always look too kindly on employers who have decided to terminate the employment contract in this way. It’s generally advised to take the disciplinary action or dismissal route.

If an employee is sent to prison, it may be fair for the employer to dismiss the employee. It could come under ‘some other substantial reason’ as the employee is unable to perform the duties set out in their Contract of Employment due to their incarceration.

Is the employee obliged to disclose their conviction to you?

In general, employees are under no obligation to notify their employer, but they may be compelled to due to a provision in their Contract of Employment or because of the nature of their profession, for example, those who work with children or vulnerable people or for those in regulated sectors such as financial services.

Some key tips when dealing with employees’ misconduct outside of work:

• Avoid a knee jerk reaction. One of the biggest mistakes employers make is to act quickly, without thinking through the consequences and what procedure they need to go through.

• Look at the employees’ contract and see whether there are any duties that they have violated with their conviction and check your disciplinary procedure to see what examples constitute gross misconduct. For example, do you list that an offence which could be regarded as gross misconduct are any actions that bring the company into serious disrepute whether during or outside normal working hours?

• If you do take disciplinary action, make sure you follow your disciplinary procedure carefully making sure that you have undertaken a reasonable investigation into the facts, given the employee a reasonable opportunity to prepare for the hearing, and then allowed them to be accompanied, etc.

• Remember it’s not enough to have a fair reason to dismiss, it’s also important to act reasonably in the circumstances. If you are claiming that their criminal conviction is damaging the reputation of your organisation, make sure you have clear documentation that demonstrates this.

If you are unsure of how best to proceed, it’s recommended to seek legal advice at the earliest opportunity.