I wonder how I manage an employee who has been charged with a criminal offence that occurred outside of work.

A criminal conviction is defined as being found guilty of a criminal offence by a court of law.

The UK Government's Criminal Justice Statistics does not provide specific data on the employment status of convicted offenders. However, in the year ending June 2024, 1.15 million offenders were convicted, 6% more than in the previous year. This means that situations in which an employee is charged with a criminal offence or faces conviction for something that has occurred outside of work can happen.

This delicate issue can be very challenging for employers especially when it falls outside the scope of the workplace, however, in this week’s article we will try to shed some light on how such delicate situations can be handled.

Nonetheless, if such situation does occur, employers should seek legal advice as soon as possible as each case is different and needs to be handled with absolute care without putting the business at risk.

What does ACAS say?

Advisory, Conciliation and Arbitration Service (ACAS) discussed the issue in question in their Code of Practice on disciplinary and grievance procedures pointing out that: “An employee should not be dismissed or otherwise disciplined solely because he or she has been charged with or convicted of a criminal offence. The question to be asked in such cases is whether the employee’s conduct or conviction merits action because of its employment implications.”

Essentially, ACAS highlights that as long as the criminal conviction does not affect their work then dismissal or other disciplinary actions should not be undertaken against an employee solely on the basis of a criminal conviction.

What should employers do?

Facts of each individual case should be investigated, meaning that many different factors will have to be considered. This can be done through an internal investigation, following the business’s disciplinary policy, during which employers will gain a better understanding of the potential issue.

It is also important that employers communicate with employees about what steps are being taken. If an employee in question plays a vital role in the business, their coworkers will need to be informed to some degree of what is happening. Nonetheless, the privacy of the individual in question should be respected and gossip should be prevented.

Factors employers should consider before taking action

• Nature of the offence v their current job – Employers should consider how the offence an employee committed affects their current job. If an employee who is responsible for the business’ finances is convicted of theft, from an employer’s point of view there is a high risk involved in allowing the employee to keep on working at their current position. If an employee is disqualified from driving and their intrinsic job duties does involves driving, they wouldn’t be able to carry out their duties.
• Seriousness of the offence – It might be that the offence in question involves a violent offence in which case it might act as a deterrent for potential clients or customers but also co-workers, which might result in refusal to work with the individual in question.
• Reputation of the business – This factor may not be relevant to many businesses, however, if an employee’s criminal conviction does affect how the clients perceive the business and leads to them ending their dealings with the business, it is something an employer will have to consider. The image of the business may be damaged. Additionally, in rare situations, when the media gets involved, how the business handles such situations will be under great scrutiny.
• Practical considerations – Criminal convictions can result in a prison sentence, subsequently with an employee being unable to carry out their duties which is a very important factor to consider. In other situations, it can result in community work sentence, the employer will need to consider how this will affect day to day duties of that employee.

Why seeking legal advice is important?

Dismissing an employee, with at least two years’ service, solely due to the fact that they were charged with a criminal offence can result in a claim for unfair dismissal. Consequently, the situation can result in much worse consequences for the business than it would have if such an employee was not dismissed in the first place. Seeking legal advice is therefore essential in such situations as each situation will be different and will require different approach.

Conclusion

In conclusion, it is clear that dealing with such situations should be conducted with utter care taking into consideration all of the factors and approaching each case on the basis of its facts without prejudices. Ensuring that no quick decisions are made and seeking legal advice will ensure that the matter will not harm the business in any way.

If you have any other questions about how to handle an employee who has been charged with a criminal offence outside of work, or have any other employment law related questions, please contact our Employment Law team by emailing employment@warnergoodman.co.uk or by calling 023 8071 7717.