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Employees and Criminal Conduct – What is the legal test?

Employment Law & HR

It seems that U.S. political drama is never far from the headlines these days. The last few weeks have been no exception, with President Trump’s embattled Supreme Court nominee Brett Kavanaugh being sworn in to office despite a number of controversial allegations of sexual assault.

With the rise of the #metoo movement, many victims of sexual assault and harassment have been empowered to speak out about their experiences. In the current climate, many employers have been left questioning what they should be doing if a staff member is accused of a crime, particularly in cases where it is not clear whether the individual will be prosecuted.

Employers should be aware of the different legal tests involved in criminal and employment cases. The criminal courts are obliged to consider whether charges are proven “beyond reasonable doubt”. In the employment law sphere, the legal test is whether it is more likely than not that a particular event occurred on the “balance of probabilities”. An employer is therefore entitled to carry out a disciplinary investigation parallel to the police investigation and can proceed with a dismissal even when a charge hasn’t yet been tested in the criminal courts.

The first question for an employer is whether the alleged incident happened in the course of employment. If so, the employer may be obliged to act in order to enforce standards of behaviour in the workplace and to protect any victims to whom the organisation may have a duty of care. If the incident happened outside work, the situation is trickier. There must be something about the conduct which makes it difficult to continue to employ the employee. If not, employers should question whether they ought to become involved in the matter.

Suspension of an employee in these circumstances should not be a knee-jerk reaction. The employer must carefully evaluate the risk to the organisation, the employee, and anyone the employee has contact with. This is particularly crucial when the incident is still under investigation by the police. If an employer chooses to delay decisions based on an ongoing police investigation, it must be careful to ensure that the delay doesn’t cause the employee unreasonable detriment.

If the employer is considering dismissal, it should clearly identify the grounds relied on. For example, is the dismissal because of the conduct itself, the impact on the employee’s ability to do their job or the impact on the organisation? No employer wants to see its reputation damaged, particularly if the allegations have been the subject of media attention. However, an employer should be extremely cautious about relying on reputational damage alone to dismiss an employee; it should be able to evidence that the employee’s actions have or will significantly impact the organisation’s reputation.

Employers should also be alive to any regulatory risks and obligations as a result of a dismissal. Dismissing employees in regulated industries such as medicine / nursing, care, legal and teaching can have wide-reaching effect and essentially prevent them from working in their chosen profession.

If an employee is convicted and given a custodial sentence, a dismissal could be fair on the grounds of “some other substantial reason” or because the contract has been frustrated. However, dismissal is not the only option available to an employer where an employee has been handed a custodial sentence. If the business can sustain the absence of the employee, then it may be reasonable to keep the position open for the incarcerated employee.

Ultimately the legality of a dismissal based on criminal allegations will balance on a number of factors. No matter what the grounds for dismissal are, it is important to investigate the matter thoroughly before coming to any conclusion and to follow a fair disciplinary process. If you are unsure how to proceed with a matter such as this, get in touch with your legal advisor today.  

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