What to do when an employee has been accused or arrested in relation to a non-work-related matter and is now the subject of a criminal investigation!

Lawyers speaking in court

Dealing with allegations of misconduct is never fun, often tense and rarely simple. Add a police investigation into the mix and the situation can easily become overwhelming. This article sets out the key things for employers to think about when an employee has been in trouble with the police outside of work, for example:

  • An altercation while on a night out
  • A driving offence more serious than speeding
  • Offences relating to the possession and/or supply of illegal drugs
  • Accessing or possessing indecent material from the internet

You've become aware that one of your employees has been arrested and is the subject of a police investigation. What should you do?

Perhaps surprisingly, you may not have to or need to dismiss them. The first thing to consider is the nature of the offence and the potential risk to your organisation so speaking with the individual concerned is key. If there is no link between the offence and the employment you may not need to / want to take any action, but if it does have a bearing on the employment, either through the employee's suitability to continue in their role or possible reputational issues that the arrest may cause, you may need / want to take further action.

What further action can I take?

An employee may be subject to formal disciplinary action because of their arrest, charge or conviction for a criminal offence outside their employment. In such circumstances the criterion for determining whether the disciplinary procedure should be invoked will be the extent to which the alleged offence is incompatible with the employee's continued employment, for example where an employee is arrested for a driving offence and they are required to drive as part of their role. Discussing the matter with the employee in an open and frank way will hopefully be helpful to get a better understanding of the issues involved and the risks to the business. Depending on what is established there may be a need to investigate the matter internally and consider disciplinary action, for example if (using the example above), they were driving their company vehicle at the time of the offence.

If dismissal is a genuine consideration the employee should be notified of this in any invitation to a disciplinary meeting.

Can the disciplinary and police investigations run at the same time?

There is nothing stopping you from carrying out an internal process whilst the police investigation is ongoing. In fact it would probably be desirable to do so as police investigations can take a long time to complete and to wait for its conclusion could be costly to the busines. However, it is important to consider that the employee may not want to engage in the internal process for fear of jeopardising their defence in the criminal case.  Likewise, the police may be reluctant to share information that would prejudice the internal investigation. As seen recently with Sue Gray's report into the alleged parties that took place at 10 Downing Street during lockdown, any internal investigation must strike a balance with the Police investigation and this is often to the detriment of the internal investigation.

Surely, I can suspend the employee?

In short, not necessarily. Suspension should never be a knee-jerk reaction and you should have reasonable and proper cause to suspend, for example if there is a clear risk to your business by the employee remaining at work. Remember, employees are paid their full salary while suspended so you'll want to minimise any period of time they spend suspended and to complete any investigatory and disciplinary process as quickly as possible to minimise such cost. Waiting for the conclusion of a criminal investigation could therefore be particularly disadvantageous. You may therefore decide to take a commercial view and weigh up the cost of suspension pending both investigations with the cost of dismissing. However, we would always recommend that you seek legal advice before doing so in order to fully aware of the risks.

What if the employee refuses to engage in the disciplinary process?

Whilst this stance may be understandable as doing so might prejudice the employee's position in respect of the police investigation, it may make the internal investigations difficult or even impossible. However, all is not lost, where an employee who is charged with a criminal offence refuses, or is unable, to cooperate with disciplinary investigations and proceedings, you may still take action. The ACAS guidance recommends that the employer should advise the employee in writing that, unless further information is provided, it will make a disciplinary decision on the basis of the information available, and this could result in dismissal.

When should I wait for the Police investigation to finish?

If feasible, a formal disciplinary hearing should be convened as soon as possible, and the outcome should not normally be delayed pending the result of any criminal investigations or criminal proceedings.

However, this is subject to the investigation not impinging on police enquiries.  Ultimately if you do not have enough information to make a decision, you may have no choice but to wait and take no further action until the police investigation has concluded.  To do otherwise risks unfairly dismissing the employee.  In some cases, such as when there may be some overlap with the offence and employment, for example if someone is alleged to be in possession of indecent images of children that works in a school, the police may specifically ask you to put your internal investigations on hold until their investigations conclude. This is common in regulated settings, and often when there are serious and sensitive allegations made, such as safeguarding and / or abuse. We would therefore always recommend trying to conclude any internal process as quickly as possible before the Police have a chance to intervene.

Can I dismiss the employee once the police investigation has completed?

If the employee is convicted, there will likely be grounds to dismiss them. If they are sent to prison, they obviously cannot discharge their duties under their employment contract or depending on the nature of the conviction and their punishment (for example tagging or community service), they may be restricted from working, meaning you will have no choice but to dismiss them.  To avoid a claim of unfair dismissal you will still need to follow a fair process in ending their contract and it is a common misconception to think you can simply rely on frustration to bring the contract to an end automatically; there will be instances where this can be relied on, but it should be done so with caution.

Even if the individual is not subject to a custodial sentence you may still legitimately be concerned about the potential reputational impact continuing to employ a convicted criminal may have on your organisation. Depending on the circumstances, and any mitigation the individual seeks to rely on, you may be able to dismiss for some other substantial reason ("SOSR"), due these concerns.

Dismissal of course may be trickier to justify if the individual is not convicted, but in some circumstances, you may still be able to dismiss if you have reasonable and genuine concerns about reputation.

It may also be the case that the outcome of any internal process leads to dismissal, even though the police took no further action. It's important to remember that the evidential bar is far higher for the police; they need to determine that it was very likely that the individual did what was alleged, whereas employers only need to form a genuine belief that the employee did the conduct alleged following a reasonable process.

Acas Code

Ultimately, if deciding to dismiss, when faced with an employee with 2+ years continuous employment employers will still need to follow a fair process in line with the Acas Code and any internal disciplinary procedure even if there is a complicating factor, such as a police investigation. This includes inviting the employee to meetings, allowing them to be accompanied, giving them an opportunity to put their case forward and providing them with the right to appeal.