What approach should be taken towards an employee found guilty of a crime or imprisoned for an offence? Barrister Charles Price offers some advice.
What happens at an employment tribunal?
If an employee has been dismissed for committing a criminal offence, whether in the course of his employment or not, sometimes the offending employee will claim that he has been unfairly dismissed in an employment tribunal.
If the principal reason for a dismissal relates to serious misconduct, which the employer reasonably believes has been committed by the employee, then the dismissal can be regarded as prima facie 'fair'.
Whether the dismissal is fair or unfair will then turn on whether the tribunal considers that the employer acted reasonably in treating the misconduct "as a sufficient reason for dismissing the employee".
The correct test to apply is to consider whether dismissal fell within the range of reasonable responses open to an employer in all the circumstances, and a tribunal must not substitute its own view of what would have been reasonable; as in the words of some venerable commentator, "one person's misconduct is another's Saturday night".
Whether the offence was committed at work or out of working hours is often a relevant factor. Often a disciplinary policy will give examples of misconduct, which constituted gross misconduct, and often theft of company property is included.
This means that the employee can hardly argue that he/she was unaware of the gravity of the offence. Whether or not commission of a criminal offence by an employee (especially when out of hours) justifies dismissal depends, amongst other things, on the nature of the offence and the type of work for which he is employed.
Does an employee have to disclose past criminal convictions?
Case law tells us that employees do not have to divulge details of past convictions that are spent for the purposes of the Rehabilitation of Offenders Act 1974 before the dates on which they signed the forms. It follows that an employer who finds out about an employee's previous conviction has a duty to check whether it is spent or whether he can properly rely on it to dismiss.
The following are the main sentences excluded from rehabilitation (RoOA s.5(1). They must be disclosed to an employer or prospective employer if he asks about previous convictions/criminal record no matter how long ago they may were served:
(a) imprisonment, youth custody or corrective training for a term exceeding two and a half years.
(b) life imprisonment.
(c) a sentence of preventive detention.
A disqualification order made Criminal Justice and Court Services Act 2000 ss.28 or 29, making it unlawful for the person named in the order to work with children and is not a sentence for the purposes of the Rehabilitation of Offenders Act 1974 (see Criminal Justice and Court Services Act 2000 s.38). The effect is that the disqualification order, as opposed to the offence giving rise to it, is effectively excluded from rehabilitation under the 1974 Act.
Can an employee count on continuous service when he returns from prison?
A substantial prison sentence will frustrate an employment contract even where an appeal is lodged and the employer is aware of this.
Here is a checklist to be aware of before action:
- Be aware that a suspension reasonable in length, whilst an investigation goes on, is unlikely to be seen as a disciplinary measure.
- Check to see if the type of disciplinary offence is spent or falls as an exception to this rule.
- Look to see if the type of criminal offence is listed as ‘Gross Misconduct’ in the disciplinary policy.
- If the employee has been found guilty of an offence consider whether this is incompatible with him being an employee of yours, taking account of: the gravity of the offence; the type of offence; the type of role and relevance of the type of offence.
- Always take professional advice before making the decision to dismiss.
For more information, please visit: www.charlesprice.net