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Where do you stand if an employee faces a criminal charge?
Words: Pat Hagan The salaries bear no comparison, the hours could not be more different and they deinitely do not share the same degree of celebrity status. So it’s rare to see any overlap between the worlds of Premiership football and road transport.
But the controversy surrounding the status of Chelsea defender John Terry as captain of the England team ahead of this summer’s European Championships does actually raise some important issues for employers in the haulage sector.
Terry faces a criminal trial later this year on charges of racial abuse against QPR defender Anton Ferdinand. But the real controversy has been whether he should retain the captaincy – on the premise of being innocent until proven guilty – or be stripped of the title while he awaits trial. In the end, the Football Association took the decision that Terry should be relieved of his duties – a decision that also led to the sudden exit of England manager Fabio Cappello.
The question that arises, therefore, is where do employers stand when an employee is charged with a criminal offence? This is something of a legal mineield as offences can range from minor theft, such as shoplifting, to assault, drink-driving or even drug dealing.
For many employers, the question is what action, if any, can they legally take in cases where a member of staff is charged? And what if it may be a year or more before a case reaches a criminal court?
According to the Arbitration and Conciliation Advisory Service (ACAS), it is unfair to dismiss an employee just because he or she has been charged with a criminal offence.
Does the charge impede their abilities?
Even if the charge is upheld and the employee convicted, a dismissal is only likely to be fair if the offence has some material effect on their ability, or suitability, for the job.
Other potential reasons, ACAS says, include if the conviction makes it harder for fellow employees to still accept them as a workmate, or if being charged brings the company into disrepute – for example, if the company name is revealed in any press coverage at the time.
Laura Skelly, a solicitor specialising in employment law at Manchester-based JMW Solicitors LLP, says that, in some circumstances, it is possible to instigate disciplinary procedures to dismiss a worker before a case comes to court. “But for such a dismissal to be fair the employer must not only have a valid reason for the dismissal, but must also act reasonably. Valid reasons include conduct, capability or what’s known in employment law as Some Other Substantial Reasons [SOSR],” she explains.
“For example, if the charge in itself is enough to bring the company into disrepute this may amount to SOSR, leading to a fair dismissal.” The only reason this can happen is that the weight of evidence needed in a disciplinary case is less than that needed to secure a criminal conviction.
For a crime to be proved in court, the law requires that guilt be established beyond all reasonable doubt.
For an employer in this instance to be able to dismiss a worker, he has to be able to show that he, as Skelly puts it, “genuinely believed on reasonable grounds” that the employee was guilty of the offence.
Skelly adds: “If an employee is charged with a criminal offence, the employer should consider and investigate what effect the charge has on the employment relationship.
“In some cases, it will be appropriate to wait for the case to go to court before deciding whether to dismiss or not. However, each case will turn on its own facts and depend upon factors such as the date of the court hearing, the size of the employer and the availability of cover.”
Will it damage the company’s reputation?
In other words, if a case is not due to come to court for 18 months, an employer may decide there could be irreparable damage to the company’s reputation in the meantime.
But what happens if there is no dismissal and the suspect is found guilty, though not sent to jail?
“Depending on the nature of the charge, a written warning may be appropriate,” says Skelly.
“This will especially be the case where the offence directly relates to the duties of the employee under their contract of employment. Where there is no relationship between the employment and the offence, there still may be reason to issue a warning if the guilty inding brings the company into disrepute.” If the staff member is jailed, that still doesn’t mean they can be sacked automatically. The key issue here is whether jail ‘frustrates’ the employment contract; or, in other words, whether there is little likelihood of them ever returning to work.
This is decided by factors such as how long they are jailed for, how long they were in their job and how necessary it is to ind a permanent replacement for them.
Transport law specialist Laura Hadzik, also from JMW Solicitors, says many operators do not appreciate the need to report crimes outside the workplace to trafic commissioners.
She says one common area of confusion is whether offences committed by employees in their personal vehicles need to be notiied.
“The law is such that the itness of a vocational driving entitlement holder to hold that entitlement is judged against their conduct in respect of any motor vehicle,” says Hadzik.
“Trafic commissioners expect operators to notify convictions of employees for offences in their personal vehicles, as this enables them to consider if they remain it to continue or should be called to a driver conduct hearing.” ■
FAIR DISMISSALS
If an employee is charged or convicted of a crime, an employer needs to observe certain rules if they want to take disciplinary action: ● check your disciplinary policy to make sure being charged or convicted constitutes gross misconduct; ● carry out your own investigation of the offence and the employee’s suspected role; ● give the employee sufficient time to respond and access to witness statements if applicable; ● decide whether his/her action has a direct impact on their employment ability.
Further Information
Discipline and Grievances at Work – the ACAS Guide www.acas.org.uk