Managing Employees Arrested for Off-Duty Conduct: When crime doesn’t pay.

When an employee is arrested for a crime committed outside of their employment, employers face the challenge of managing the situation while balancing fairness to the employee, protecting the business’s interests, and complying with English employment law. In this article I outline the steps employers should take when dealing with an employee arrested but not yet charged, how and when they may cooperate with the police, and the appropriate disciplinary procedures if the employee is subsequently charged and convicted.

Initial Steps upon Arrest

1. Gather Information

Confirm Facts: Verify the arrest through reliable sources, such as police reports or direct communication with the employee. Avoid acting on hearsay or rumours.

Understand the Allegations: Determine the nature of the alleged crime, its severity, and any potential impact on the employee's role.

2. Assess Impact on Employment

Relevance to Role: Evaluate whether the alleged crime is related to the employee's duties. Crimes involving dishonesty, violence, or activities that undermine trust are particularly relevant.

   - Company Reputation and Trust: Consider the potential impact on the company’s reputation and trust with clients, especially if the employee holds a public-facing or senior position.

3. Maintain Confidentiality

Privacy: Handle the matter with discretion to protect the employee's privacy and the integrity of any ongoing legal proceedings.

Communication. Limit internal discussions to only those who need to know, and maintain confidentiality in all communications.

Cooperating with the Police

1. Initial Contact Responding to Inquiries: If contacted by the police, cooperate as necessary while respecting the employee’s rights. Confirm the facts without divulging unnecessary details about the employee or the business.

Seeking Guidance: Request guidance from the police on how to proceed without interfering with their investigation.

2. Balancing Cooperation and Rights

Employee’s Rights: Ensure the employee’s rights are protected. Inform them of any police inquiries and seek their consent before sharing information, unless legally obligated to do so.

Internal Investigation: Conduct your own investigation if the police indicate it won’t interfere with their process. Ensure it is fair and unbiased, focusing on facts relevant to the employment relationship.

3. Timing

An obvious question to ask is when should the internal disciplinary process happen? 

It may seem logical to wait until the criminal case has concluded – where the employee is found guilty in a criminal court. However, this could take months and could prove costly for the employer. This is because the contract of employment would facilitate the full payment of wages so long as the employee was ready, willing and able to work. I recall an unfortunate case where my client (a day care nursery) waited 6 months to start an internal investigation against their employee following a police allegation of child abuse. With our advice, we swiftly and legally concluded this internal process.

This is because Employment Law does not require an employer to wait (North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387 – https://www.bailii.org/ew/cases/EWCA/Civ/2019/387.html). It is not reasonable to expect an employer to wait for such time when they will be paying the employee whilst on suspension and their role may not be capable of being filled. 

Case law has made clear that in almost all cases an employer doesn’t need to wait for the conclusion of the criminal matter before acting.  The only real exceptions would likely be where the internal investigation may to some extent overlap, interfere or somehow contaminate the police investigation.

Suspension or Temporary Measures

Suspension: If the arrest could significantly impact the employee’s ability to perform their duties or poses a risk to the business, consider suspension with pay as a precautionary measure. Suspension should not be punitive and should be kept under review.

Alternative Duties: Where possible, reassign the employee to alternative duties that mitigate risk while allowing them to continue working.

Disciplinary Action upon Charging and Conviction

If the employee is subsequently charged and convicted, the employer should follow a fair and lawful disciplinary process, as outlined below:

1. Charging Stage

Investigate Internally: Conduct a thorough investigation into the circumstances of the charge and its relevance to the employee’s role.

Fair Process: Adhere to the ACAS Code of Practice on Disciplinary and Grievance Procedures. Ensure the employee has an opportunity to respond to the allegations and present their case.

2. Formal Disciplinary Hearing

Notification: Provide the employee with written notice of a disciplinary hearing, detailing the charges and potential consequences. Allow the employee to be accompanied by a colleague or trade union representative.

Hearing: Conduct a formal hearing to discuss the allegations, the employee’s response, and any mitigating factors. Ensure a fair and unbiased approach.

3. Consideration of Outcomes

Proportionate Response: Decisions should be based on the nature of the crime, its relevance to the job, and any impact on the business. Possible outcomes include a warning, demotion, or dismissal.

Dismissal: If dismissal is considered, ensure it is a last resort and follows a fair process. The dismissal should be for a substantial reason, such as conduct or some other substantial reason (SOSR) that justifies the termination of employment.

4. Post-Conviction Actions

Review of Employment Status: Regardless of whether the employee is convicted. This is because the burden of proof in employment law is one of reasonable belief as opposed to ‘beyond all reasonable doubt’.

I would advise employers to re-evaluate the situation based on the impact on the employee’s role and the business. Take appropriate disciplinary action, including possible dismissal, ensuring a fair and consistent approach.

Conclusion

Employers must carefully navigate the complexities of dealing with an employee arrested for off-duty conduct. By gathering accurate information, assessing the impact on the business, cooperating with the police within legal bounds, and following a fair disciplinary process, employers can manage these situations in line with the law. Maintaining confidentiality and acting proportionately are key to ensuring fair treatment of the employee while protecting the interests of your business.

For or more information please contact our Head of Employment, Kalpesh Nakeshree on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email kalpesh.nakeshree@warekay.co.uk to see how we can assist.