Covert Recordings

Posted in : HR Updates on 10 September 2014
Helen O'Brien
Personnel and Training Services
Issues covered:

Helen O'Brien writes:

Employers face difficult decisions when an employee is arrested on suspicion of, or charged with, a serious criminal offence that is unconnected with work. The situation gets worse when the employee is then convicted and given a custodial sentence.

Dealing with Criminal Charges and Convictions

When an employee is arrested or remanded in custody, particularly as a result of circumstances that occur outside the course of their employment, employers should avoid treating this as an automatic reason for dismissal. The employer must consider whether the offence is one which has, or could have, a direct effect on their employment. They will then need to decide, having investigated and considered all of the facts, whether or not it is reasonable to instigate the company’s disciplinary procedure.

What if an Employee is Remanded in Custody?

In these circumstances an employer must consider, in accordance with the needs of the business, whether or not the employee’s position can be kept open. To be able to make this decision the employer should try to obtain information on how long the employee is likely to be remanded in custody.

Disciplinary Action

If the crime has a direct effect on the employee’s work – for example a driver charged with dangerous driving, or an accountant charged with fraudulently obtaining monies, an employer may consider taking disciplinary action up to, and including, dismissal.

It is vital that before any action is taken, the employer conducts a thorough investigation to establish all of the relevant facts. Where the employee’s conduct needs prompt attention, the employer should not wait for the outcome of any criminal proceedings.

Other Reasons for Dismissal

Where the crime is unconnected with employment, the only real issue to be dealt with is where the employee is remanded in custody. In these circumstances, where it is not possible for the position to be kept open pending the employee’s release, employers are advised to follow a fair procedure and terminate the employee’s employment for some other substantial business reason i.e. that the employee is unable to attend work, rather than going down the disciplinary route.

As with any potential dismissal for some other substantial reason, an employer should be satisfied that dismissal really is the last resort. The employee should be informed of the process and encouraged to participate as far as he or she is able. For example they should be invited to appoint a representative to attend meetings on their behalf or be given the opportunity to provide written representations to be considered before any decision is reached.

It may be possible to argue that the contract of employment has been frustrated - i.e. that due to the employees incarceration continued performance of the contract is impossible. At first glance this can appear to be the answer to an employer’s dilemma as if a contract is frustrated in law; it automatically comes to an end.

However, frustration of contract is a Common Law doctrine not an employment law based approach and stems from a complex principle that can be difficult to rely on at a tribunal. If there is a different way to end the relationship i.e. a dismissal, it is advisable that an employer who finds themselves in these circumstances follow one of the other routes outlined above in order to effect a potentially safe and fair dismissal from an employment law perspective.

This article is correct at 21/10/2015

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Helen O'Brien
Personnel and Training Services

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