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Calling From A Cell Phone: Dealing With The Arrest Of An Employee

Last week, a group of Chelsea fans making their way home from a Champions League game in Paris were filmed preventing a black man from getting onto a train whilst chanting “we’re racist and that’s the way we like it”.  Police have begun an investigation into the incident, and a handful of individuals have already been identified and banned from attending Chelsea’s ground.  There have been calls from the victim and on Twitter for the individuals to be punished, including being fired from their jobs. 

One individual who has been identified (although the extent to which he was involved in the incident is currently unknown) was Josh Parsons, a 21 year old assistant at a financial services firm in Mayfair.  Speaking to the press, his boss claimed that he was “not that type of person at all” and that he was simply “in the wrong place at the wrong time”.  However, if Parsons is found to have been involved, or is arrested, it would not be unreasonable to expect his boss to change her view.  But what should employers do when their employees have been arrested, or are revealed to have been involved in this type of conduct outside of the workplace?

The appropriate approach will of course depend on the nature of the offence and the potential harm this could cause to the employer, based both on the status of the business and the role of the employee (for example, a director may be held to a higher standard of conduct than a junior employee).  Each case should be considered on its facts.  It is important to bear in mind that an individual should be seen as innocent until proven guilty.  If a police investigation is being conducted, it may be appropriate to suspend the employee pending the outcome of the investigation, depending on the nature of the offence.  The suspension should be reviewed on a regular basis.  A suspension should usually be paid as long as the employee would otherwise be able to continue working.  If they are remanded in custody, and therefore unable to work in any event, the suspension can be unpaid until the employee’s release.

If the issue is in the public eye and therefore a statement may be necessary, this should be carefully worded.  Ideally employers should take legal advice if such a statement is required, as a poorly prepared statement could come back to haunt the employer if the employee is ultimately acquitted or released without charge, particularly if in hindsight the statement would be seen as defamatory or a breach of contract.

In certain circumstances, the employer may wish to undertake an internal investigation in addition to the police investigation.  This may be particularly relevant in instances of conduct which may ultimately not be criminal but are still serious enough to merit disciplinary action, such as abusive behaviour.  Any investigation must be compliant with the Acas Code of Practice, which expressly states that a charge or conviction in respect of a criminal offence is not normally in itself reason for disciplinary action, but that consideration must be given to what effect such circumstances have in respect of the employee’s suitability to do their job, bearing in mind their relationship with their employer, colleagues and customers or clients.

Even in circumstances where the employee is not subsequently charged or no conviction is brought against him, if the actions of the employee bring its employer into disrepute, or are such that there is a breakdown in trust and confidence between the parties, it may be appropriate to proceed with a disciplinary hearing that may result in termination of employment.  Summary dismissal (i.e. without notice) may be appropriate if the employee is not able tocarry out their role due to their conviction, for example if they are employed as a driver but are stripped of their licence as a result of their conviction. 

It should be noted, however, that a criminal conviction does not invariably mean that the subsequent dismissal will be fair.  Firstly, the employer must follow a fair and reasonable investigatory and disciplinary process.  Secondly, the employer must assess the impact of the conviction on the employment relationship.  The employer should not assume that dismissal is inevitable, and should take into account any mitigating factors.

Employers wishing to ensure that they can dismiss an employee convicted of a criminal offence should have in place a disciplinary policy which provides an express right to dismiss in such cases.  The policy could detail the reasons why such a conviction may make the employee unsuitable to continue working for the employer, or how it will affect the employer’s reputation.  This can avoid an argument over the fairness of the dismissal later on, as long as the correct procedure was also followed.

 

This article was first published as part of our Employment Law Update - February 2015. Register above to receive our updates as soon as they are published, directly to your inbox!

This article is offered for general informational purposes only, and does not constitute legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or opinions of Solomon Taylor & Shaw.